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Related Categories: U.S. | Police State & Prisons
Your Right of Defense Against Unlawful Arrest or When to Shoot A Cop
by John Brown
How many unarmed, non-violent people have died at the hands of the police? When the police target you through a pattern of false arrests and illegal detentions, violent attacks on homes, family and friends, perhaps we have a duty to fight back?
sm_police.jpg
*** “And how we burned in the camps later, thinking: What would things have been like if every Security operative, when he went out at night to make an arrest, had been uncertain whether he would return alive and had to say good-bye to his family? Or if, during periods of mass arrests, as for example in Leningrad, when they arrested a quarter of the entire city, people had not simply sat there in their lairs, paling with terror at every bang of the downstairs door and at every step on the staircase, but had understood they had nothing left to lose and had boldly set up in the downstairs hall an ambush of half a dozen people with axes, hammers, pokers, or whatever else was at hand?... The Organs would very quickly have suffered a shortage of officers and transport and, notwithstanding all of Stalin's thirst, the cursed machine would have ground to a halt! If...if...We didn't love freedom enough. And even more – we had no awareness of the real situation.... We purely and simply deserved everything that happened afterward.” *** Aleksandr I. Solzhenitsyn , The Gulag Archipelago 1918–1956


The YouTube video "When Should You Shoot a Cop?" https://www.youtube.com/watch?v=cElTyqJkMEw offers an argument that it is sometimes OK, and even necessary, to resist, with force, the violent tyranny of the police.

An article previously posted at Constitution.Org suggested that we all have a right to resist unlawful arrest and police violence. That article is reproduced here:

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 committed.

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. If 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).

You are also within your rights not to answer any questions without a lawyer present, and if possible, to demand a video recording be made of the entire encounter that you or your lawyer keep as evidence, so that federal prosecutors can't get away with charging you with making false statements to a government investigator and testilying about what you said.

As a practical matter one should try to avoid relying on the above in an actual confrontation with law enforcement agents, who are likely not to know or care about any of it. Some recent courts have refused to follow these principles, and grand juries, controlled by prosecutors, have refused to indict officers who killed innocent people claiming the subject "resisted" or "looked like he might have a gun". Once dedicated to "protect and serve", far too many law enforcement officers have become brutal, lawless occupying military forces.

This article was originally published at
https://www.constitution.org/uslaw/defunlaw.htm
Maintained: Jon Roland of the Constitution Society
Original date: 1996/07/10 - Last updated: 2019/7/11
(The article is also available at Archive.Org)


The Common-Law Right to Resist, by "ExCop-LawStudent", May 5, 2013 makes some valid criticisms of the above article. https://excoplawstudent.wordpress.com/2013/05/05/the-common-law-right-to-resist-at-least-according-to-contitution-org/ That response to the above article is reproduced here:

The Common-Law Right to Resist, at Least According to Contitution.org

A large number of Internet wannabe experts cite cases from this webpage when arguing the proposition that a citizen may resist a police officer making an “unlawful” arrest. Let’s look at the post, the actual cases, and the law.

“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.”

OK, let’s look at what Plummer v. State, 136 Ind. 306, 34 N.E. 968 (1983) actually says. First, the opinion of the Indiana Supreme Court doesn’t have the quoted material anywhere in the opinion. Not even in the headnotes (which are not part of the opinion anyway). Second, what the opinion does say is the exact opposite. It states “[i]f the officer is resisted before he has used needless force and violence, he may then press forward and overcome such resistance, even to the taking of the life of the person arrested, if absolutely necessary.” Id. at 313, 34 N.E. at 969 (emphasis added). If the officer is being resisted, then the officer can use any force necessary, up to and including deadly force. Nothing at all about the citizen using deadly force. What the opinion does state is that if the officer uses unnecessary, excessive force, a person has the right to defend themselves from that excessive force. Here the officer hit Plummer over the head from behind with a billy club, and then shot at Plummer. Plummer shot back, more accurately, and killed Marshal Dorn. The court said “[w]hen a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force, and if, in the reasonable exercise of his right of self-defense, his assailant is killed, he is justifiable.” Id. at 314, 34 N.E. at 970. Plummer is still good law for what it actually says, that a citizen may defend himself against an officer’s excessive force.

One can also tell when someone is citing the Bad Elk case from this website. They always cite the case the exact way that the wannabe cited it, as John Bad Elk v. U.S. There’s only one problem with that–it’s not the correct way to cite the case, which should be listed as Bad Elk v. United States, 177 U.S. 529 (1900). Legal citation only uses the last name of the party, and U.S. is not abbreviated. The quoted portion is accurate but is cherry-picking. Earlier in the opinion, the Court says

At common law, if a party resisted arrest by an officer without warrant, and who had no right to arrest him, and if in the course of that resistance the officer was killed, the offence of the party resisting arrest would be reduced from what would have been murder, if the officer had had the right to arrest, to manslaughter. What would be murder, if the officer had the right to arrest, might be reduced to manslaughter by the very fact that he had no such right.

Id. at 534.

The Court lists about ten citations as supporting authority for this statement. The statement cited has none but is clearly referring to a self-defense right as in Plummer. That may or may not have been present here. Another item that the post doesn’t mention is that Bad Elk was a tribal police officer. In any event, Bad Elk is no longer considered good law in much of the country, having been superseded by statutes that prohibit resisting arrest even if the arrest is unlawful. See State v. Gallagher, 465 A.2d 232 (Conn. 1983); State v. Haas, 596 A.2d 127 (N.H. 1991); Villafranca v. United States, No. 3:06-CV-0806-N, 2008 U.S. Dist. LEXIS 111716, 2008 WL 8919855 (N.D. Tex. 2008).

Continuing to the second paragraph of the post, which states

“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.

Again, the quoted material does not appear in the citation listed. Instead, the Illinois Supreme Court states in Housh v. People, 57 Ill. 491 (1874) that when a judge issues a warrant that he does not have jurisdiction to issue, a constable or other officer may not be held liable for voluntarily releasing the person arrested under such warrant. The opinion does not mention resistance, does not mention killing, and does not mention manslaughter. The State v. Leach, 7 Conn. 452 (1829) most assuredly did not “reaffirmed and quoted” Housh, indeed it was impossible for it to do so, having been decided 45 years before the Housh decision. Instead, Leach was cited in the Housh decision, as supporting authority.

Neither Housh nor Leach is cited in State v. Gleason, 32 Kan. 245, 4 P. 363 (1884), which is about the authority of a county attorney to file criminal charges on an information instead of an indictment. Ballard v. State, 43 Ohio 340, 1 N.E. 76 (1885) states the opposite of the premise of the post. It states that if an officer is making an arrest, even if the information is false and the accused innocent, the accused is bound to submit to the arrest and seek redress in the courts. Ballard’s conviction for murder in the first degree was affirmed.

State v. Rousseau, 241 P.2d 447 (Wash. 1952) does state that an individual has a common law right to resist an unlawful arrest but has one major problem. It was overruled. The citation should read State v. Rousseau, 241 P.2d 447 (Wash. 1952), overruled by State v. Valentine, 935 P.2d 1294 (Wash. 1997), which stated that one could only legally resist if the officers were using unlawful or excessive force.

The last case cited, State v. Spaulding, 34 Minn. 361, 25 N.W. 793 (1885) also does not say what the post claims it states. It reverses a murder conviction on the fact the original arrest warrant could not be found and that the state did not lay a proper foundation for admitting oral testimony as to the original arrest warrant. It cites none of the other cases but does state that the only time that an officer may be resisted is if the officer is using unlawful, excessive force.

The other cases are similarly wrong. Whether this was an inadvertent error by the site owner, or a deliberate attempt to falsify the information, the end results are the same. It’s wrong, and if you cite them in court to defend yourself, you are going to get screwed. Even worse, if you base your actions in dealing with a police officer on this page, and you resist to the point that the officer is killed, you could end up with a needle in your arm.

We note however that in recent ruling some courts are again affirming the right of the people to resist with force the illegal violence of the police.

A September 30, 2019, Fox News report "Citizens Can Now Use Deadly Force Against Public Servants" explained that citizens are permitted under the law to use deadly force to resist police violence.
https://www.youtube.com/watch?v=YeyIJPSK_1E

An article published in Criminal Legal News January 2021, page 42 reported that the "Georgia Supreme Court Affirms Right to Resist Unlawful Arrest and Announces Right Includes Use of Proportionate Force Against Government Property" https://www.criminallegalnews.org/news/2020/dec/15/georgia-supreme-court-affirms-right-resist-unlawful-arrest-and-announces-right-includes-use-proportionate-force-against-government-property/

*** Stop acting as if those wearing badges have extra rights – they don’t. You know this. See through the charade and think for yourself. Good people are standing up for their rights and connecting with and supporting others. Cease looking to an external authority and govern your own life. ***
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