Unlawful Arrest

[Statkowski]

Here's one for the legal scholars. State law says:

18 Pa. C.S. §505. Use of Force in Self-Protection.

(a) Use of force justifiable for protection of the person. - The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

(b) Limitations on justifying necessity for use of force. -

(1) The use of force is not justifiable under this section:

(i) to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful....

Basically, even though the arrest is unlawful (e.g., enforcing a local ordinance that we all know is preempted by state law), we're not allowed to resist.

However, it appears the U.S. Supreme Court has held otherwise, to wit:

“Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”

So, what does that mean when some local cop tries to stop you from carrying a holstered handgun in a park?

[gnbrotz]

Seems pretty simple to me (if you're willing to spend multiple years incarcerated and thousands of dollars in legal fees, all in hopes of beating astronomical odds).

Not resisting the arrest will allow you to spend those same multiple years on the outside, while you spend the same thousands of dollars bringing a suit against the involved parties.

I would personally have no problem as a juror acquitting someone in such a case. I certainly don't expect that to be the consensus here, and I know that most juries would never come to this decision unanimously.

[Shawn.L]

I would think there would be a large differance between using forcefull reistance in a situation where the worst that could be expected is that you would be disarmed and need to jump through some hoops to set it right,... or forceful resistance if you had reason to believe the arrest would lead to great bodily harm or death.

[gnbrotz]

Shawn, I see your point, but notice that the Supreme Court makes no mention of the anticipated result. The use of force is specifically employed to prevent the unlawful arrest itself, not what may happen afterwards.

Since none of us have a crystal ball, having some type of 'anticipated result' requirement built into such a law would only add vagueness and ambiguity.

[SigForLife]

"What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed."

AKA, it is basically a defense that the defendant can employ to mitigate his/her level of offense. It does not mean that you get off the hook completely, it is all dependent on the circumstances. For instance, if someone is a diabetic and needs his/her insulin or he/she will die, that individual has a right to fight the arrest to ensure the safety of his/her own life. There is caselaw that this is true even when the person is being arrested lawfully. But, the person can ONLY use such force as necessary to allow that individual to use the life saving device.

[larrymeyer]

IANAL but I would think what the courts were referring to is something like a swat team kicking in your door in the middle of the night because they had a wrong address. You would have the right to shot as your bring woke up not know who are what is kicking in your door and you shot to kill.

[tmg19103]

Don't resist - you will get screwed by the courts in an unlawful arrest. Comply, get unlawfully arrested, sue their pants off under USC 1983 and retire to Florida.

[GunLawyer001]

I read of a case some years back, pretty sure it was in PA, where a cop demanded that a woman open the trunk of her car, which was parked outside her apartment. No probable cause, no warrant, no plain view, no exigent circumstances, nothing. She refused, and instead went into her apartment building. He then attempted to arrest her. She declined to cooperate, and in fact broke his nose in the process. She was then arrested for "resisting arrest", as well as for assaulting the cop.

In court, she was acquitted of all charges. The cop had no basis for arresting her, and he couldn't create a basis after the fact, so the "resisting arrest" charge went away. Also, since the arrest was unlawful, her efforts in declining to be handcuffed were excusable, even with the cop's busted nose.

I have mixed feelings about this. Cops are often ignorant of the law, but most citizens are, who seem to believe that they have unlimited rights but no obligations. Most arrestees think that the arrest is unwarranted. Should we encourage them to resist using deadly force? Or should we demand that all citizens bow to the asserted au-thor-i-tay of whatever buffoon in blue seeks to slap on the cuffs? Either way, there's a potential for abuse. What should your busty girlfriend do when a stranger in uniform demands that she accept the cuffs and get in the back of the van, when she knows for a fact that she's done nothing illegal?

On a related note, I'm not so sure that it's wise to demand that citizens submit whenever anybody "identifies" himself as a police officer. That's an easy way to accomplish a home invasion, just flash a tin badge and claim to be a cop. Combine that with the increasing trend for cops to shoot anyone with a gun in his hand, and we homeowners have a hard choice when the door is kicked in and someone shouts "police".

[Philadelphia]

Originally Posted by GunLawyer001

I have mixed feelings about this. Cops are often ignorant of the law, but most citizens are, who seem to believe that they have unlimited rights but no obligations. Most arrestees think that the arrest is unwarranted. Should we encourage them to resist using deadly force? Or should we demand that all citizens bow to the asserted au-thor-i-tay of whatever buffoon in blue seeks to slap on the cuffs? Either way, there's a potential for abuse. What should your busty girlfriend do when a stranger in uniform demands that she accept the cuffs and get in the back of the van, when she knows for a fact that she's done nothing illegal?

The same way we have a "theoretical" right to revolt against a tyranical gov't, we should have the theoretical right to resist and repel unlawful arrest.

I don't see it as something that happens so often that it's a major issue. Resisting arrest is very risky no matter how you slice it (you will get hurt). If you're so positively sure that the arrest is unlawful, you should not be legally compelled to submit to it anyway, even if, as a practical matter, that might be a better course of action. If you're not sure or it turns out you were wrong, the thump on your head and additional charges for resisting should be enough to deter "routine" resistance (apart from those who resist arrest because they're violent people and not out of some misunderstanding of their rights).

[LittleRedToyota]

imho, you should be allowed to resist an unlawful arrest with whatever force is required to resist it. otherwise, you are basically being legally required to allow yourself to be kidnapped.

BUT...

if you resist a lawful arrest, the consequences should be severe.

so, you better be absolutely certain that the arrest is unlawful before resisting...because, if it turns out the arrest is not unlawful you are going to prison for awhile.