When is an arrest, an arrest?

[ray h]

That would be a Terry search and a Terry search can only be done if a " reasonably prudent man, in the circumstances, would be warranted in the belief that his safety or that of others was in danger".
Thats not to say it couldn't happen but I believe there is a defense there. Just the fact that you may have walked around in public all day or for years and very few people went running for their lives would indicate what a "reasonably prudent man" doesn't feel they are in danger..

[tl_3237]

I've also read cases where it was ruled that people were justified in resisting unlawful arrest, but, they also implied that limited force could be used.

In Pennsylvania? If you have any citations I'd love to read them.

I would like to see them also. A cursory search turned up a SCOPA decision Com. v. Biagini, 655 A. 2d 492 - Pa: Supreme Court 1995 which, in summary says:

For the reasons that follow, this Court holds that a conviction for resisting arrest cannot stand where the underlying arrest is found to be unlawful. We further hold that French did not create a right for an individual to resist what s/he believes to be an unlawful arrest. There is no right to resist arrest.

We cannot state it any more clearly: there does not exist in Pennsylvania a right to resist arrest, under any circumstances. The lawfulness of the arrest must be decided after the fact and appropriate sanctions imposed in a later judicial setting.

That being said, SCOPA also weighed in as to when self-defense (s.505) was appropriate in the very limited circumstance of unlawful application of 'deadly force' against the arrestee. Com. v. French, 611 A. 2d 175 - Pa: Supreme Court 1992

Hence, under §§ 505 and 508 of the Crimes Code, an arrestee's use of force in self protection is justified when the arrestee reasonably believes that such force is immediately necessary to protect against an arresting officer's use of unlawful and deadly force, i.e., force which is readily capable of causing death or serious bodily injury. An arresting officer's use of excessive force capable of causing less than serious bodily injury or death can be vindicated by recourse to subsequent legal remedies. Superior Court's analysis of this 51*51 issue was correct as far as it went; although that analysis stopped short of including a discussion of unlawfulness, the result reached by Superior Court was correct

French is further commented on in Biagini:

Thus, French reaffirms the proposition that there is no justification for resisting arrest; the only circumstance under which the law will contemplate physical resistance to a police officer is when the officer unnecessarily uses unlawfully excessive or deadly force which triggers the right of self-defense. The focus in French was not whether the underlying arrest was based on probable cause, but rather whether the officers' use of force in effectuating a lawful arrest was itself, unlawful. A police officer may only use the amount of force which is necessary to accomplish the arrest. 18 Pa.C.S. § 508(a)(1)

[ray h]

I'm not questioning 505 as far as arrests go. My question is what about Terry searches and other encounters that are specifically NOT arrests?

[Hawk]

Resistance is futile!

police-brutality.jpg

[ray h]

On an interesting side note, according to Commonwealth vs French:
"Hence, under §§ 505 and 508 of the Crimes Code, an arrestee's use of force in self protection is justified when the arrestee reasonably believes that such force is immediately necessary to protect against an arresting officer's use of unlawful and deadly force, i.e., force which is readily capable of causing death or serious bodily injury. An arresting officer's use of excessive force capable of causing less than serious bodily injury or death can be vindicated by recourse to subsequent legal remedies."
If the police screw up and raid my house instead of my neighbor's house in the middle of the night and they shoot my dog, I can shoot back.

[tl_3237]

I'm not questioning 505 as far as arrests go. My question is what about Terry searches and other encounters that are specifically NOT arrests?

In your original scenario I would think that the moment that the LEO physically restraints you, it because a custodial detention/arrest.

I was mulling over various posts and laws. One stuck out to me as being an issue.
Title 18, Chapter 5, 505
(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;

When is an arrest, an arrest? If I need to defend myself against being unarmed or thrown on the ground by a "peace officer", but he has never stated that I'm "being arrested", is it truly an arrest and would I have legal standing to physically defend myself if he has never actually attempted to "arrest" me.

A scenario to clearify:
I get stopped for OC, The officer attempts to physically disarm me, I physically resist, he shoves me against his car, puts me in a headlock, we struggle and I punch him in the face.

At no point was it stated or made clear to me that I was being arrested. At what point do I "know" an arrest is being made? Is there a law someplace that says I'm not allowed to physically resist an unlawful search (having a firearm removed is a search) if there is no arrest?
I know it's splitting hairs but an arrest is an arrest and not every interaction with a "peace officer" is an arrest, so when does an interaction legally become an arrest in context of 505.

[nater99]

Can't link on my phone but the case is Watson vs. Haverford PD.

[ray h]

In your original scenario I would think that the moment that the LEO physically restraints you, it because a custodial detention/arrest.

I agree with that but the moment that lead to that (the officer forcably trying to remove my firearm), which I'm saying is an illegal act, is what kicked off the physical encounter before an arrest was attempted.

[tl_3237]

I agree with that but the moment that lead to that (the officer forcably trying to remove my firearm), which I'm saying is an illegal act, is what kicked off the physical encounter before an arrest was attempted.

Although the follow-on action(s) may have resulted from a precipitating illegal action of the LEO, the court cases provided were clear that the place to challenge those actions/reactions is within a judicial setting and not the field (barring the French s.505 exception).

[Adam-12]

I agree with that but the moment that lead to that (the officer forcably trying to remove my firearm), which I'm saying is an illegal act, is what kicked off the physical encounter before an arrest was attempted.

Ray, seriously, DO NOT go down that road... When the cop says he was confiscating your firearm incident to an arrest, you will be convicted. And upgraded to a felony because you resisted arrest with a gun. The benefit of the doubt will all go to the brave young man in blue, and NOT to you. Juries LOVE cops, and so do judges and prosecutors.

Same goes for shooting a cop that shoots your dog. You'll have a hell of a time convincing a jury that you feared for your life. Would a reasonable man believe that, "When someone shoots my dog, it means he's about to shoot me next"? If the man is a burglar in your house at 2AM, probably yes. But when the man is a brave boy in blue, who risks his life daily to protect us from scum (scum like YOU, defendant!), no. A reasonable man would never assume that. Ask any jury you like.

The standard for deadly force in self-defense is very high. The standard for self-defense against cops, even if it were legal under PA law, will be much higher. Because juries usually believe cops, and they usually do not believe defendants.