When the Right to Resist Becomes the "Duty to Submit"
by William Norman Grigg
Anne Dekins was a loud-mouthed party girl -- or at least, that's what the arrest warrant suggested. Whatever she may have done in the past, Miss Dekins was quietly minding her own business when Officer Samuel Bray found her on the street and began to haul her away.
Dekins wasn’t inclined to go quietly, and she put up a struggle. Her cries for help attracted the interest of several armed men led by an individual named Tooley, who confronted Bray and demanded to know what he was doing to the frantic woman. The officer produced his official credentials and insisted that he was making a lawful arrest for “disorderly conduct.” When witnesses disputed that description, Bray called for backup.
Tooley and his associates ordered Bray to release the woman, and then took action to enforce that lawful order. After Bray’s partner was killed in the ensuing struggle, Tooley and his associates were arrested for murder. The trial court threw out the murder charge, ruling that the warrant was defective. Since the arrest was illegal, the court pointed out, Dekins had a right to resist – and bystanders likewise had a right, if not a positive duty, to assist her. The defendants were eventually found guilty of manslaughter, but quickly pardoned and set free.
By trying to enforce an invalid warrant, Bray “did not act as a constable, but a common oppressor,” observed the trial court. Tooley and the other bystanders were properly “provoked” by the act of aggressive violence against Anne Dekins, and their forceful but measured response – first demanding that the abductor release the hostage, then exercising defensive force to free her – was entirely appropriate.
Lawless violence against the helpless “is a sufficient provocation to all people out of compassion” in any circumstance, observed the court, “much more where it is done under a colour of justice, and where the liberty of the subject is invaded….” In fact, an act of that kind carried out by a law enforcement official is nothing less than “a provocation to all the subjects of England.”
Every Englishman “ought to be concerned for Magna Charta and the laws,” concluded the Queen’s Bench in the 1710 case Queen v. Tooley. “And if any one against the law imprison a man, he is an offender against Magna Charta.”
Roughly forty years earlier, the same court had issued a similar opinion in Hopkin Huggett’s Case. Huggett and his friends had come to the aid of a man who had been arrested by a constable named Berry. Huggett demanded to see the arrest warrant. When Berry produced a clearly spurious document, Huggett drew his sword and demanded the prisoner’s release. Berry refused, and finished second in the ensuing swordfight.
The wrongfully arrested man in that case (who was threatened with impressment into the military) did nothing to resist his abduction. It wasn’t clear that Huggett knew the man, or had even met him prior to the incident. Yet the Queen’s Bench ruled that Huggett’s actions were justified, since a situation in which a “man [is] unduly arrested or restrained of his liberty … is a provocation to all other men of England, not only his friends but strangers also[,] for common humanity’s sake.”
In addition to codifying the Common Law right to resist arrest, Hopkin Huggett’s Case and Queen v. Tooley recognized that this right inheres not only in the victim, but in citizens who interpose on the victim’s behalf.
Simply put: When a police officer commits the crime of unlawful arrest, the citizens who intervene are acting as peace officers entitled to employ any necessary means – including lethal force – to liberate the victim.
In early 18th Century England, this was seen as a non-negotiable bulwark against what the heroic Algernon Sidney called “the violence of a wicked magistrate who, hav[ing] armed a crew of lewd villains,” would otherwise inflict his will on innocent and helpless people with impunity. Sidney’s martyrdom at the hands of precisely that kind of degenerate, tyrannical magistrate underscored the vitality of the principle he expressed.
“The right to resist unlawful arrest memorializes one of the principal elements in the heritage of the English revolution: the belief that the will to resist arbitrary authority in a reasonable way is valuable and ought not to be suppressed by the criminal law,” observed Paul Chevigny in a 1969 Yale Law Journal essay. Actually, Chevigny – like many others – elides a critical distinction between “power” and “authority”: While a police officer may have the power to abduct or abuse an innocent person, citizens have the authority to prevent that crime.
Until the late 1960s, most states recognized – albeit grudgingly -- the Common Law right to resist arrest. By 1969, that right had been transmuted, through judicial activism, into a revocable “privilege” – one that had to be dispensed with to serve the interests of the State's punitive caste.
“The weight of authoritative precedent supports a right to repel an unlawful arrest with force…. This was the rule at common law,” admitted the Alaska State Supreme Court in a seminal work of sophistry called Terry Glenn Miller v. State of Alaska. “It was based on the proposition that everyone should be privileged to use reasonable force to prevent an unlawful invasion of his physical integrity and personal liberty.”
That admission clearly anticipated the familiar use of the magical conjunction “but” as a rhetorical reset button, and the Court didn’t disappoint:
“But certain imperfections in the functioning of the rule have brought about changes in some jurisdictions. A new principle of right conduct has been espoused” – by whom, the Court didn’t specify. “It is argued” – once again, the parties to that argument were not identified – “that if a peace officer is making an illegal arrest but is not using force” – something that could not occur, given that an arrest, by strict definition, an act of armed coercion – “the remedy of the citizen should be that of suing the officer for false arrest, not resistance with force.”
“The control of man’s destructive and aggressive impulses is one of the great unsolved problems of our society,” pontificated the Court as it destroyed one of the few effective checks on the deadliest manifestation of those impulses. “Our rules of law should discourage the unnecessary use of physical force between man and man. Any rule which promotes rather than inhibits violence should be re-examined.” That objective is not legitimately served by granting State functionaries an unqualified license to commit criminal violence against the innocent.
Four years after the Miller decision, a decision entitled Richardson v. Idaho emerged from the Idaho State Supreme Court’s emunctory aperture. John Richardson had been convicted of resisting arrest through violence and sentenced to five years in prison. The incident in which the supposed crime occurred took place at a restaurant in Idaho Falls. Richardson and his ex-wife, who were having dinner, got into an argument, and were asked to leave when the latter became loud and profane.
Two off-duty police officers escorted them outside, and then tried to arrest Richardson for “disorderly conduct” after he became annoyed by their unwarranted intrusion. Richardson kicked one of the uniformed buttinskis in the mouth, and managed to grab one of their pistols, which he fired into the air, rather than at his assailants (as he was entitled to, both morally and – under the Supreme Court’s still-valid 1900 Bad Elk precedent – legally).
Prominently citing the Miller decision in Alaska, the Idaho Court observed that “More than one state has, without legislative action, modified the traditional common law rule and has adopted the rule that a private citizen may not use force to resist a peaceful arrest,” blithely ignoring, once again, the fact that a “peaceful arrest” is a creature more fanciful than a left-handed unicorn that speaks Norwegian. “We are of the opinion that the trend is, and should be, away from the traditional common law rule, and therefore we hold that if a person has reasonable ground to believe he is being arrested by a peace officer, it is his duty to refrain from using force or any weapon in resisting arrest regardless of whether or not there is a legal basis for the arrest.”
The key holding in the Richardson ruling has been enshrined in the Idaho Code Judicial Instructions (ICJI 1262), which asserts that “it is the person’s duty to refrain from using force or any weapon in resisting arrest regardless of whether or not there is a legal basis for the arrest.” The obverse of this spurious “Duty to Submit to Arrest” is a police officer’s privilege to commit criminal acts for the purpose of nullifying the Exclusionary Rule – something the Idaho Supreme Court acknowledged in a 2008 ruling captioned State v. Lusby.
Police paid a visit to Lusby’s apartment to investigate a disturbance. She quickly grew tired of the uninvited company – what decent person wouldn’t? – and went into her apartment, closing the door behind her. One of the officers committed an act of criminal trespass and announced that Lusby was under arrest for “obstruction” and “resistance.” At one point the bully caught an elbow in the face from the victim, a small down-payment on what he deserved – but enough to earn Busby a charge of felonious assault on an officer. She was also charged with drug possession on the basis of evidence found in the officer’s illegal search.
Because that search was patently illegal, the trial court granted a motion to dismiss all charges against Busby. The State Supreme Court admitted that this was the case – but insisted that Busby’s resistance to the illegal invasion of her home retroactively legalized the unconstitutional search.
“It appears to be a nearly universal rule in American jurisdictions that when a suspect responds to an unconstitutional search or seizure by a physical attack on the officer, evidence of this new crime is admissible notwithstanding the prior illegality,” decreed the court, extracting that “rule” from precisely the same orifice from which the Richardson ruling originated. “The rationale … [is that] a subsequent attack on the officer is a new crime unrelated to any prior illegality…. Accordingly, we hold that evidence of Lusby’s alleged batter on an officer or other forceful resistance is not suppressible … [and] evidence of paraphernalia found in the search incident to Lusby’s arrest [is] admissible.”
On this construction, a police officer can nullify the Fourth Amendment anytime he pleases, simply by claiming that the victim committed the supposed crime of resisting. This can take the form of assuming an “aggressive posture,” such as “blading” the body or even putting one foot in front of the other in what can be construed as an “attack stance.” Or, as the recent assault on Austin, Texas resident Antonio Buehler demonstrates, the “assault” can be nothing more than breathing in the face of a police officer.
To Buehler and his friends, the spectacle looked more like a gang assault.
"We hear a loud scream, and we look over, and we see the cop violently yanking the female out of the car onto the ground," Buehler told local ABC affiliate KVUE. "She is screaming. The other cop ran up and they both sort of grabbed her arms. Her hands were behind her back straight out and they lifted her up by her arms. It looked extremely painful."
With the help of a friend, Buehler began to document this act of "street justice" with his cell phone. That prompted Oborski to confront Buehler, who was not interfering in any way.
According to Buehler, Oborski barked, "What the hell are you taking pictures for?"
"My response was, `I am allowed to. Public official in a public place.'"
As he was trained to, Oborski started to lie in an effort to devise a cover charge against Buehler. First he claimed that Buehler was somehow "interfering with the investigation," which was patently untrue. Then the cop assaulted Buhler by pushing the unresisting man — who would have been more than a match for the donut-grazer, had he chosen to fight back — up against a truck.
"Once he had me pinned up against the back of the truck he kept leaning in," Buehler continued. "He kept pushing me."
Eventually Oborski got so close that Buehler actually breathed on him — which gave him a pretext to accuse the witness of "spitting" on him. With some difficulty, and Snider’s help, Oborski wrestled Buehler (who offered only passive resistance) to the ground and handcuffed him. The cops took Beuhler to a BAT van—- a patently unreliable mobile alcohol testing unit — in the hope of documenting that the witness was intoxicated, which he wasn't. The cop finally settled on charging him with "harassing a public servant" — a third-degree felony — and "resisting arrest."
As is always the case in incidents of this kind, Buehler wasn’t arrested for an actual crime; he was vindictively punished for “contempt of cop.”
“You don’t f*** with cops,” Oborski snarled at Buehler. “You don’t get in our f***ing way. You don’t question us, and we’re going to teach you a lesson.”
Norma Pizana’s plight was strikingly similar to that of Anne Dekins, with at least one critical difference: Dekins and her rescuers were blessed to live in 18th Century England, a relatively civilized society that recognized and protected a free individual’s indispensable right to resist State-licensed criminal violence.
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