Restoring the Right to Resist (UPDATED)

The stuff of nightmares -- tax-feeders with guns: Ray Nagin (r), the cosmically inept mayor of New Orleans, joins police supervisor Warren Riley in celebrating the NBA All-Star Game by goofing off with some of the weaponry recently purchased with a $6.6 million state police appropriation.

“One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases.”

United States Supreme Court, United States v. Di Re, 1948.

It was well after midnight when armed strangers burst into the Houston apartment Pedro Oregon Navarro shared with his family. Adrenaline suring through his veins, Pedro grabbed a handgun and fled toward his room, the intruders pounding after him.

One of the assailants later claimed that Pedro pointed his gun at him. A short while later, the 22-year-old father was dead. Some 33 shots had been fired, twelve of which found their way into Pedro’s body. This wasn’t a case of “contagious gunfire”; one of the attackers took the time to reload and empty a second clip. Pedro’s gun wasn’t fired a single time.

The invaders were police, of course. They stormed into Pedro’s home without a warrant, acting on a tip from an informant that narcotics commerce was being conducted there – a charge regarded as sufficient justification for a raid by the kind of people who believe the State has jurisdiction over the individual’s bloodstream. The informant wasn’t “registered” with the police department, an omission that may be significant to the kind of people who can countenance working with compensated snitches.

More importantly, several searches of the home failed to produce so much as a particle of evidence that narcotics had ever been present therein.

So the police, who raided a home without a warrant or any semblance of probable cause, were arraigned on charges of murder, or at least manslaughter, for the needless death of an innocent 22-year-old man -- right?

Well, no.

“I don’t know of any authority at this point that gave them [the police] the right to be in that residence,” conceded John B. Holmes, Jr., the District Attorney for Harris County. “But that doesn’t make the shooting a crime.”

Holmes told the Houston Chronicle that, in effect, Pedro had committed a capital offense by arming himself when the police broke into his home illegally.

“They [the police] do not have to sit still for a citizen pointing a firearm at them, even if they entered illegally,” Holmes insisted. In comments to the Chronicle, Holmes asserted (in the newspaper’s paraphrase) that “because the law does not allow anyone to resist an arrest, even an illegal one, officers had a right to use deadly force against [Pedro] if he threatened them.” The “only exception,” he maintained, “is the right to defend yourself against unreasonable force, such as being beaten.”

Holmes didn’t deign to answer the logical follow-up question: What if the cops decide that your attempt to resist being beaten is a “threat”? Are they then permitted by what some people are pleased to call the “law” to kill you?

Yes, this bucket-headed fellow in Stormtrooper drag is a police officer.

There are many police who have done that very thing. A group of them from the Campbell County, Tennessee Sheriff’s Department were caught on tape beating and torturing a petty recidivist criminal and threatening to kill him if he didn’t sign a consent form permitting them to search his home.

At one point, following a long session of torture, threats, and mockery, one of the officers suggested that the victim be released from his handcuffs; “that way if he raises his damn hand to one of us, we have the right to beat the f**k out of him.” Another one suggested that the victim could be shot and the officers could plant a pellet gun on his body.

From the perspective described by John Holmes, the victim in that case had the right to resist the beating, but not the illegal arrest. Perhaps , for the benefit of those of us without law degrees or exalted government titles, Holmes could explain how one could do the former without doing the latter.

The six police officers who invaded Pedro’s home and shot him to death without legal cause or warrant were fired from the police force. Only one of them faced a criminal charge of simple trespassing, and he was acquitted. That outcome was predictable, given Holmes’s consummate indifference regarding Pedro’s murder: A few weeks after the incident, the District Attorney referred the matter to a Grand Jury without preferring criminal charges against any of the officers.

An increasingly common sight: A woman is needlessly tasered by an abusive cop.

This squalid episode took place ten years ago, beginning with the lethal raid on July 12, 1998. Since that time, misdirected paramilitary police raids on American homes have become nearly routine, and casual, vulgar abuse of citizens by police has become commonplace.

We’ve reached a point at which police can often kill innocent citizens with impunity – yet the slightest physical contact from a citizen can be prosecuted as “battery on an officer,” and a citizen wielding a flyswatter – yes, a flyswatter -- during a police raid can be accused of planning a “felonious assault” on a policeman.

That’s not to say, of course, that such outrages were rare ten, or even twenty, years ago. But now they are more plentiful – and, thanks in no small part to the growing influence of cyber-samizdat, such as YouTube, much more visible. Acts of corrupt police abuse that once could be dismissed as figments of a troubled imagination, or the invention of vindictive criminals, are now routinely exposed to worldwide public scrutiny, and the fuel of growing public outrage.

Hands-on lessons in submission: A demented police officer in Hot Springs, Arkansas brutalizes a teenager for the supposed crime of public skateboarding. The same heroic officer was captured on video strangling two of the teenager's friends, including a 13-year-old girl (below).

Outrage of this kind is healthy and necessary, but it can curdle into impotent, resentful frustration if it’s not put to constructive use.

I have a suggestion: We should work to re-instate statutory protection of the right to resist unlawful arrest in the 38 states that presently do not recognize that ancient and indispensable Common Law right.

Unless a police officer is dutifully enforcing a legitimate warrant, or has unassailable probable cause to believe that an individual has committed a felony, he has no business attempting to arrest anybody. That was the understanding that prevailed in the Anglo-Saxon world, in one form or another, from 1215 until the mid-1960s to mid-1970s, at least here in the United States.

Fifty years ago, the statutes of nearly every state recognized the right to resist unlawful arrest. Today, it is recognized only Michigan, Wyoming, Oklahoma, Alabama, Georgia, Louisiana, Maryland, North and South Carolina, Tennessee, West Virginia, and Mississippi.* The question has been examined, and upheld in remarkably candid terms by courts in Mississippi. This is ironic, given that Mississippi is the same state where Cory Maye was convicted of first degree murder for killing a police officer who invaded Maye’s home in a late-night paramilitary raid at the wrong address.

A 1963 Mississippi Supreme Court decision (King v. State) favorably cited a legal scholar’s conclusion that “the right of personal liberty is one of the fundamental rights guaranteed to every citizen, and any unlawful interference may be resisted. Every person has a right to resist an unlawful arrest; and, in preventing such illegal restraint of his liberty, he may use such force as may be necessary.”

Not quite four decades earlier, a judge presiding over the criminal trial of a police officer accused of murdering a man who resisted arrest underscored the fact that a citizen has the right to kill a police officer attempting to arrest him without probable cause or a valid warrant. The judge instructed the jury that if the officer had been attempting an illegal arrest, the defendant was permitted to employ “whatever force was necessary to avoid the arrest, even to the extent of taking the life of [the] defendant.”

In other words: A police officer who kills a civilian in the course of an unlawful arrest is a murderer; a citizen who kills a police officer when threatened with lethal violence in the course of an unlawful arrest is exercising his innate right to self-defense.

The jury agreed with that view, convicting the officer of murder. The verdict was overturned on appeal because the jury hadn’t been permitted to consider the officer’s argument that he acted in self-defense.

The Mississippi Supreme Court conceded that an officer “attempting to make an unlawful arrest is not cut off from the right of self-defense … he is only the aggressor in the difficulty and is in no worse attitude than any other aggressor.”

There is one significant problem with that view: Armed aggressors have no right to self-defense. An armed criminal has no right to shoot back if his victims offer armed resistance. That principle should apply to aggressors of any variety – including police who stage illegal and unnecessary home invasions, or who commit violent acts in the course of unlawful arrests.

Once again, all of this was widely understood until just a few decades ago. Today, not only is that right all but unheard of, it is increasingly common for people to be arrested for resisting arrest.

In an essay for the California Criminal Law Review, Craig Hemmens notes that the first “scholarly criticism of the right to resist an unlawful arrest” was published in an anonymous law review note entitled “Resistance to Illegal Arrest.” Taking notice of the well-developed legal doctrine that a citizen “may use all the force reasonably necessary to resist the illegal arrest,” the anonymous author protested that “the law seems to be too willing to glorify the right to personal liberty,” and argued that it was time to abandon this common law principle.

In 1942, when cultural and legal institutions were being restructured to accommodate FDR’s welfare/warfare state, Harvard law professor Sam Bass Warner resumed the assault in a law review article examining “The Uniform Arrest Act,” a model statute produced by a committee appointed by the Interstate Commission on Crime.

The Uniform Arrest Act was designed to standardize practices involving the detention, questioning, and arrest of criminal suspects. Section Five of the Act dealt with the matter of resisting illegal arrest: “If a person has reasonable ground to believe that 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.”

Elucidating that provision, Professor Warner insisted that the arsenal of contemporary police (circa World War II) had rendered the common law right to resist unlawful arrest obsolete: “Constables and watchmen [in previous eras] were armed only with staves and swords, and the person to be apprehended might successfully hold them off with his own weapons and thus escape. Today, every peace officer is armed with a pistol and has orders not to desist from making an arrest though there is forceful resistance. Accordingly, successful resistance is usually possible only by shooting the officer to prevent him from shooting first.”

“Though at one time the innocent may have been as likely to resist illegal arrest as the guilty, this is no longer true,” pontificated Professor Warner, without bothering to explain the reasons for his oracular certainty. “An innocent man will not kill to avoid a few hours, or at the most several days, in jail. Besides, he will ordinarily have no gun, and therefore will be unable to resist successfully. Thus the right to resist illegal arrest by a peace officer is a right that can be exercised effectively only by the gun-toting hoodlum or gangster.”

Digested to its essentials, Warner’s argument for submission to illegal arrest is a variation of the rapist’s demand of his victim: You’re too weak to resist, and fighting will only get you seriously hurt or killed, so just submit and make it easier for everyone. And in a turn of phrase appropriate to a prosecutor serving a Stalinist or fascist state, Warner concluded that only “enemies of society” would resist arrest under any circumstances.

In 1961, notes Hemmens in his survey for the California Criminal Law Review, the American Law Institute published a Model Penal Code that contained a section denying the right to resist illegal arrest. This had a seminal influence on both case law and legislative action nation-wide: By 1998, the legislatures or courts of more than three-quarters of the states had effectively suppressed that right.

A legitimate individual right can be denied, ignored, or violated, but it cannot be abolished through human action. In recent years, notwithstanding the growth of the Homeland Security State and the ever-escalating aggression of law enforcement agencies, individuals living in the dozen holdout states have successfully defended that right in court:

*Ten years ago, in the decision Victoria Price Brown v. Commonwealth of Virginia, that state’s Court of Appeals vindicated the claim that a woman assaulted and arrested by police in a case of mistaken identity “had the right to resist upon self-defense principles. The Commonwealth cannot expunge that right even by showing the officers acted in `good faith.’”

The civilian in that case, after explaining that the police had confused her with another woman named on their warrant, put up what resistance she could before being pepper-sprayed, swarmed, handcuffed, and charged with obstructing justice by resisting arrest. The court upheld her claim that under Virginia law, “a person has the absolute right to resist an illegal arrest by whatever force is necessary and reasonable under the circumstances.”

“It has long been held in Virginia that where an officer attempts an unlawful arrest, the officer is an aggressor which gives the arrestee the right to use self-defense to resist so long as the force used is reasonable,” observed the court.

*In its 1994 decision State v. Stowe, the Louisiana Supreme Court stated: “The right of personal liberty is one of the fundamental rights guaranteed to every citizen, and any unlawful interference with it may be resisted. Every person has the right to resist an unlawful arrest, and in preventing such illegal restraint on his liberty, he may use such force as necessary.”

That same court, in the June 2003 case State of Louisiana v. Jeremy Sims, acknowledged that “under the long-standing Louisiana rule, [the] defendant had the right to resist an unlawful arrest,” even though it upheld his arrest and conviction for “battery on a police officer” because he had resisted a “Terry stop” – a brief investigative detention for the purpose of frisking him for weapons.

*Last March, despite the fact that Florida is among the states that do not recognize the right to resist unlawful arrest, Circuit Court Judge John DeFuria ruled that a homeowner named John Coffin was within his legal rights to counter-attack two police officers who invaded his home without a warrant and assaulted his wife.

This was the second time Coffin or his family had come under criminal assault by police: He had been pepper-sprayed and repeatedly clubbed by a Deputy Sheriff after the officer mis-read the license tag on Coffin's automobile. So when he heard his wife scream, and saw her on the floor of the garage being trussed up by two officers who had no legal right to be on his property, the 55-year-old heart patient did what any honest and decent citizen should do in such circumstances: He beat the hell out of the intruders, at one point seizing a Taser pistol from one and using it to pistol-whip the other.

“Law enforcement was responsible for the chain of events here,” observed Judge De Furia. The officers “broke the law” by invading the garage without warrant or probable cause; they were armed aggressors, no better in principle than private thugs conducting a home invasion robbery.

“What took place in the house was unfortunate,” concluded De Furia, “but Mr. Coffin ... had a right to resist.” (Emphasis added.)

Congratulations -- You've been Protected and Served! A man accused of public intoxication in New Orleans lies handcuffed in a puddle of his own blood after being beaten by police.

Current dogma holds that citizens have a duty to defer to any order issued by an armed individual dressed in a State-issued costume. This includes permitting ourselves to be restrained, arrested, and incarcerated without just cause, on the assumption that the same State that stole our liberty will agree not to take any more of it when the matter is examined in court.

Without a right to resist, we have a duty to submit. And submission to unlawful police violence too frequently results in injury, sexual assault, and death.

Yes, resisting lawless state-authorized violence is dangerous, and can be counterproductive. Citizens confronting the prospect of an illegal arrest should be governed by the Just War test of proportionality -- that is, would forceful resistance result in more harm than submission? And the same consideration should define the actions of third parties thinking of intervening to prevent an abuse of police authority.

This assumes, of course, that the actors in question reside in a state where the right to resist is protected by law. Where this is not the case, an effort should be made to restore legal protection for that right, and to educate policy makers, law enforcement officers, and the public about the legitimacy of forceful resistance to unlawful arrest.

Can an effort of this kind succeed? It's difficult to say if success is measured in purely legislative terms. To the extent that a campaign of this sort compels the public to address the ever-escalating threat of lawless police violence, and to re-acquaint itself with a fundamental and long-neglected right, it can't fail.

As if to illustrate my point...


A swaggering, officious dink in a policeman's uniform arrived at a traffic accident on a Missouri interstate in 2003. Firefighters from a local emergency rescue team were already on-scene, tending to the severely injured victim. On the orders of their superiors, the firemen had used one of their vehicles to obstruct a lane in order to protect themselves and the accident victim.

Ah, but the badge-toting dink would have none of it. Deploying his supposed authority, he ordered the firemen to move the vehicle, and snarled that "someone is going to get arrested" if this didn't happen. The firemen -- more interested in saving a life than accommodating some retromingent T.J. Hooker wannabe -- quite sensibly ignored the guy.

So he waddled over and handcuffed fire Captain David Wilson. All the while the accident victim, Joe Mack, was taking in this conversation, wondering if he was suffering from hallucinations.

This is a good example of a situation in which resisting an illegal arrest is not only justified, but imperative. Were it not for the misplaced reverence for the costume Greeves was wearing, the firemen on-site could very easily have interposed on behalf of their on-site commander while calling their superiors to work out the policy questions away from the scene of the accident. Besides, in a situation of this sort it is the "principal participants" -- the emergency rescue personnel, not the police -- who are in charge.


When Greeves put his hand -- no doubt very slippery from a combination of donut grease and flop sweat -- on Wilson, three or four firemen should have intervened and made it clear to the jerk that he wasn't in charge. As it happens, Greeves has been ordered to pay $18,000 in compensation to Wilson for his illegal arrest -- so he, too, would have been better off now if he had been made to step off back in 2003.

Liberty In Eclipse is now available at The Right Source!

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*New Jersey’s proposed self-defense law, which would codify the principle that those under an aggressive attack have no duty to retreat, has an ambiguous passage dealing with this question. Those seeking to “resist an arrest … being made by a peace officer in the performance of his duties, although the arrest is unlawful,” would not be protected by the self-defense law “unless the peace officer employs unlawful force to effect such arrest….” But any force employed by a police officer to carry out an unlawful arrest would be itself unlawful.

Dum spiro, pugno!