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Comment: Your Right of Defense Against Unlawful Arrest

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Your Right of Defense Against Unlawful Arrest

Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary.
Submitted by joeFL on Sat, 09/26/2009 - 16:08
Daily Paul Liberty Forum
Your Right of Defense Against Unlawful Arrest

“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
“An arrest made with a defective warrant, or one issued without
affidavit, or one that fails to allege a crime is within jurisdiction,
and one who is being arrested, may resist arrest and break away. lf the
arresting officer is killed by one who is so resisting, the killing will
be no more than an involuntary manslaughter.” Housh v. People, 75 111.
491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v.
Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau,
241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.
“When a person, being without fault, is in a place where he has a right
to be, is violently assaulted, he may, without retreating, repel by
force, and if, in the reasonable exercise of his right of self defense,
his assailant is killed, he is justified.” Runyan v. State, 57 Ind. 80;
Miller v. State, 74 Ind. 1.
“These principles apply as well to an officer attempting to make an
arrest, who abuses his authority and transcends the bounds thereof by
the use of unnecessary force and violence, as they do to a private
individual who unlawfully uses such force and violence.” Jones v. State,
26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State,
43 Tex. 93, 903.
“An illegal arrest is an assault and battery. The person so attempted to
be restrained of his liberty has the same right to use force in
defending himself as he would in repelling any other assault and
battery.” (State v. Robinson, 145 ME. 77, 72 ATL. 260).
“Each person has the right to resist an unlawful arrest. In such a case,
the person attempting the arrest stands in the position of a wrongdoer
and may be resisted by the use of force, as in self- defense.” (State v.
Mobley, 240 N.C. 476, 83 S.E. 2d 100).
“One may come to the aid of another being unlawfully arrested, just as
he may where one is being assaulted, molested, raped or kidnapped. Thus
it is not an offense to liberate one from the unlawful custody of an
officer, even though he may have submitted to such custody, without
resistance.” (Adams v. State, 121 Ga. 16, 48 S.E. 910).
“Story affirmed the right of self-defense by persons held illegally. In
his own writings, he had admitted that ‘a situation could arise in which
the checks-and-balances principle ceased to work and the various
branches of government concurred in a gross usurpation.’ There would be
no usual remedy by changing the law or passing an amendment to the
Constitution, should the oppressed party be a minority. Story concluded,
‘If there be any remedy at all ... it is a remedy never provided for by
human institutions.’ That was the ‘ultimate right of all human beings in
extreme cases to resist oppression, and to apply force against ruinous
injustice.’” (From Mutiny on the Amistad by Howard Jones, Oxford
University Press, 1987, an account of the reading of the decision in the
case by Justice Joseph Story of the Supreme Court.

As for grounds for arrest: “The carrying of arms in a quiet, peaceable,
and orderly manner, concealed on or about the person, is not a breach of
the peace. Nor does such an act of itself, lead to a breach of the
peace.” (Wharton’s Criminal and Civil Procedure, 12th Ed., Vol.2: Judy
v. Lashley, 5 W. Va. 628, 41 S.E. 197)