Droppin' the big hammer

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This morning, Doc sends me this link. I immediately knew this was not news.

The idea that a citizen may respond with force to law enforcement is found Constitutional by SCOTUS in John Bad Elk v. U.S., 177 U.S. 529. John Bad Elk's case, decided in 1900, clearly says citizens can use lethal force to resist an unlawful arrest. The second link is from an even older case on the same thing.

The problem: what is an unlawful arrest?

On the surface, that's pretty simple you'd think. Here's a few ideas for false arrest:

• Using illegally obtained information and evidence for the basis for the arrest.

• Making an arrest where no offense has taken place.

• Arresting the wrong person.

There's probably more. I'm neither a lawyer, judge nor cop. I can only report what I've seen the courts, lawyers and law enforcement do over and say over the years I've been a reporter.


So what about resisting a false arrest? CopBlock.org looks set four categories for resisting an arrest.

1) The arrest is lawful and no excessive force is used by the officer; (worst-case scenario for a defense)

2) The arrest is lawful and excessive force is used by the officer.
 
3) The arrest is unlawful and no excessive force is used by the officer;
 
4) The arrest is unlawful and excessive force is used by officer. (best-case scenario for a defense)
 
If you know anything about the legal system you know it is nowhere near this simple.

What is an unlawful arrest? Here's yer monkey wrench: "Remarkably, the Supreme Court has never defined the word "arrest" with any precision and decisions of the lower courts are in conflict as to its meaning," writes

Thomas K. Clancy

at the University of Mississippi School of Law.


SCOTUS, in a 2004 unanimous decision, had more to say about making an arrest. This case presents the question whether an arrest is lawful under the Fourth Amendment when the criminal offense for which there is probable cause to arrest is not "closely related" to the offense stated by the arresting officer at the time of arrest.

SCOTUS said the officer in this case made a legit arrest. So if an officer finds you doing something illegal in the process of trying to arrest you falsely, you can be arrested legitimately.


But what happens if a person resists arrest? There are such charges as fleeing or attempting to elude, disorderly conduct, assault on a law enforcement officer and probably some others. These charges come about after an officer attempts to make an arrest.

Going back to the CopBlock definitions, we find yet another monkey wrench. Who defines "excessive force?" In the law enforcement use of force class I attended a while back, the instructor said eventually a judge or jury will decide whether if it was necessary or unnecessary force. In other words, it's a subjective thing.

If you think you are resisting an unlawful arrest, even to the point of using lethal force, bear in mind you're walking on some seriously un-level and shaky ground. You're also going to be dealing with people who are trained to be cool under pressure and return fire.

Law enforcement has a tough job. They see people at their absolute worst. They have to deal with people who'd sometimes rather die than be arrested. They have to deal with people who demand help this minute and tell officers to leave the next minute.

It's not an easy job and it's not an easy way to making a living. And just like with any other profession out there, there are good ones and bad ones. Fortunately most are good. Most are in the job because they want to make a difference.

In ALL my personal dealings with LE I have found every officer to be polite and helpful and respectful, even when I was the one in the wrong (such as the no seat belt ticket I got in a neighboring county a while back.) I have never argued with them. I stated my case, once, and kept my mouth shut. In that I erred. I should have not said anything.

Of course I was also polite and respectful. Officers are trained to match your level of attitude.

I am proud to count a number of current and former law enforcement officials among my friends. I support LE and what they try to do.  I also support the right of people to resist a false arrest.