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Ask A Cop: Is It Legal To Resist An Unlawful Arrest?

We explore the legality of resisting an unlawful arrest, and what your options are.

If an officer makes an arrest without a lawful reason, can you legally resist arrest?

The answer is: probably not. But there are actually circumstances where it is legal, as we’ll explain below.

Disclaimer: This information should not be considered legal advice and laws vary widely in different jurisdictions. If you’re foolish enough to plan to resist arrest, consult with your attorney first so that they can advise you not to.

The case law often cited by sovereign citizens is Plummer v State of Indiana and Bad Elk v United States.

Plummer v State

In Plummer v State of Indiana, Jackson Plummer fatally shot a marshal, after the marshal started shooting at Plummer during an unlawful arrest, before Plummer had offered any resistance to arrest.

The Supreme Court of Indiana overturned the manslaughter conviction of Plummer in 1893, stating that Plummer had “a clear right to defend himself, even to the taking the life of his assailant.”

This case is often misquoted, saying, “citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.” That is a gross misunderstanding of the law.

First of all, this case law involved the Supreme Court of the State of Indiana. This means that the case law only applies to the State of Indiana.

Plummer v State also involved a police officer who was actively shooting at Plummer during an unlawful arrest, when Plummer had not even resisted arrest. This meant that if Plummer didn’t resist, he reasonably would have been killed.

Therefore, Plummer v State of Indiana is extremely narrow and would only apply within the State of Indiana when an officer tries to kill somebody during an unlawful arrest prior to them offering any resistance; in other words, almost never.

Except, none of that matters. The case was from 1893. The State of Indiana later adopted a rule that a person does not have a right to resist an unlawful arrest, making this old case law useless.

Bad Elk v United States

In Bad Elk v United States a tribal police officer fatally shot another tribal police officer during an unlawful arrest.

During Bad Elk’s trial, he requested a jury instruction that he had the right to resist an unlawful arrest; his request was denied.

In 1899 the U.S. Supreme Court ruled that Bad Elk’s murder conviction was allowed to be reduced to manslaughter due to the fact that the arrest was unlawful.

The case was remanded for a new trial where the jury would have presumably been given different instructions which would have allowed them to convict Bad Elk of manslaughter instead of murder.

Bad Elk died in jail before his new trial.

The opinion of the court was only that the charge may be reduced to manslaughter based on the unlawful arrest, and didn’t make Bad Elk innocent. The case also suggested that a person may use non-lethal force to resist an arrest.

However, this case was in 1899, and most states have since adopted rules making it illegal to resist an unlawful arrest.

The states mostly reasoned that there would never be a good end to resisting an arrest, and submitting to an unlawful arrest is all but certain to have a better outcome.

To date, only 14 states allow a person to resist an unlawful arrest. Those states are Alabama, Georgia, Louisiana, Maryland, Michigan, Mississippi, New Mexico, New York, North Carolina, Pennsylvania, South Carolina, Virginia, West Virginia, and Wyoming.

So what if you live in one of those states?

It’s Almost Impossible To Know If Your Arrest Is Unlawful

There is rarely any certain way to know if your arrest is lawful or not at the time of your arrest. If you resist arrest because you believe that the arrest is unlawful, then you’re gambling and the odds are against you.

You likely only know if you are innocent or guilty. But there is no part of the law which protects an innocent person from arrest; the law only protects people from arrest without probable cause.

Yes, it is entirely legal to arrest innocent people.

Probable cause is a fairly low standard of evidence. Basically, it means that a reasonable officer, when considering the information that they have, along with their training and experience, would think that a crime was committed and the suspect in question probably committed the crime.

If you are suspected of committing a crime, then you have no way to know what all of the evidence against you is.

Officers very rarely make a mistake of arresting somebody without probable cause. If you resist arrest, you are betting that you know that the officer doesn’t have probable cause – except the officer is probably acting on information which you aren’t aware of.

If you choose to resist arrest, this leads to the issue of escalation of force.

What Is The Limit For Resisting Arrest?

If you tighten your muscles to resist an officer’s attempts to control you, pull away, or run away, you are actively resisting arrest without violence. In these circumstances an officer is allowed to hit you, Taser you, and spray you with pepper spray.

If you grab an officer or hit them, you are assaulting the officer and they are allowed to respond with a level of force which may cause significant physical injury to you.

If you grab an officer’s Taser, pepper spray, gun, baton, knife, or a weapon of your own, the officer may respond by killing you.

As you can see from this escalation of force, an officer is legally allowed to, and trained to, use more force than what is being used against them.

If you resist, you will have one of two outcomes: the officer takes you into custody after using force against you, or force escalates until one of you ends up dead.

Even if you live in one of the 14 states which allows you to resist arrest, deadly force would not be allowed while resisting arrest.

It is expected that if you don’t resist arrest, then your life is not in danger. Because your life is not in danger, you cannot use self-defense to justify killing a police officer, so you can’t kill an officer while resisting arrest.

All of this means that resisting arrest is likely to leave you nowhere except the hospital or the morgue instead of jail.

What If You Flee?

If you decide to flee, you’re almost certain to be breaking a law.

The act of resisting arrest may be legal in some states, but breaking contact with police is not.

An officer is allowed to detain you if they have just about any reasonable articulable facts to suggest that you may have committed a crime, are actively committing a crime, or are about to commit a crime.

This reasonable suspicion is an extremely low standard of evidence, and allows an officer to detain you for a short time to investigate.

You may think that you are doing nothing suspicious, but you may not know that a neighbor called you in because they thought you might be casing houses as you walked down the street. You may not know that you match a suspect description.

Because the standard of evidence to detain you is so low, the detention is almost certain to be lawful if an officer believes that you can not only be detained, but also arrested.

If you are fleeing while you are detained, you are committing a crime other than just resisting arrest.

If you flee while an officer tries to unlawfully arrest you, and resisting arrest charges are dropped, you could still be charged for leaving during a detention.

So What Can You Do?

If you believe that you are being unlawfully arrested, then just submit to the arrest. You can either bail out of jail or wait until arraignment where it will be determined if there was probable cause for your arrest. If there was no probable cause for your arrest, you will be released.

You can then call a lawyer, sue the officer, and get a payday for the violation of your civil rights.

SnarkyCop - October Mon, 2017


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