Not a Law at All1:

A Call For a Return to the Common Law Right to Resist Unlawful Arrest 2

Originally published inSouthwesternUniversityLawReview29(1):150(1999)

Craig Hemmens*
Daniel Lessard Levin**

When one by force subdues men, they do not submit to him in heart. They submit,
because their strength is not adequate to resist.3
Who overcomes by force, hath overcome but half his foe.4
Table of Contents
I. Introduction
II. Development of the Right to Resist Arrest
III. The Right to Resist Arrest in the United States
A. Supreme Court Cases
B. Early Scholarly Criticism
IV. The Movement to Abrogate the Right to Resist
Unlawful Arrest--1941 to 1970
1

2
9
15
16
22
31

* Assistant Professor, Department of Criminal Justice Administration and Academic

Director, Legal Assistant Program, Boise State University. B.A., University of North
Carolina at Chapel Hill, 1985, J.D., University of North Carolina Central University
School of Law, 1988, Ph.D., Sam Houston State University, 1998.
**
Assistant Professor, Department of Political Science, Boise State University. B.A.,
University of Wisconsin-Madison, 1985, M.A., University of North Carolina at Chapel
Hill, 1988, Ph.D., University of Wisconsin-Madison, 1993.
Any law which violates the indefeasible rights of man is essentially unjust and
tyrannical; it is not a law at all. Maximilien Robespierre, Declaration of the Rights of
Man, Article 6, 24 April 1793.
2
The authors are indebted to Cara Lechner for her assistance in researching this article.
3
Mencius 372-289 B.C.). From The Chinese Classics, vol. 2, The Works of Mencius, trans.
By James Legge (1861-1886).
4
John Milton, Paradise Lost, I: 648.

V. The Civil Rights Movement, Disobedience of

Unlawful Authority and the Right to Resist
VI. The Abrogation of the Right to Resist from 1970 to the Present
A. State v. Valentine
B. Wisconsin v. Hobson
VII. The Applicability of the Common Law Rule to Modern Society
VIII. Conclusion

46

40
48
52

54

61

I. Introduction
That no person may be deprived of their liberty without due process of law is
one of the bedrock principles of the Anglo-American legal tradition, important enough
to be mentioned twice in the United States Constitution. 5 This broad principle has
underlain many of the most important developments in American constitutional law
and in the law regarding criminal procedure. The Supreme Court has expanded such
due process protections as the right to counsel, 6 the right to be informed of the right to
remain silent when in police custody,7 and the right to have excluded from a criminal
trial evidence illegally seized by the police. 8 Due process has also been used by the
courts for many other purposes, including: to create the right to privacy, 9 to extend the
U.S. Constitution, Amendments V and XIV. Amendment V states in relevant part: nor
shall any person . . . be deprived of life, liberty, or property, without due process of
law. Amendment XIV states in relevant part: no shall any State deprive any person of
life, liberty, or property, without due process of law. The Fifth Amendment was held
applicable to the federal government in Barron v. Baltimore, 7 Peters 243 (1833); the
Fourteenth Amendment was held applicable to the states in Allgeyer v. Loiusiana, 165
U.S. 578 (1897).
6
Powell v. Alabama, 287 U.S. 45 (1932) Gideon v. Wainwright, 372 U.S. 335 (1963).
7
Miranda v. Arizona, 377 U.S. 201 (1966).
8
Weeks v. U.S., 232 U.S. 383 (1914); Mapp v. Ohio 367 U.S. 643 (1961).
9
Griswold v. Connecticut,381 U.S. 479 (1965) (Goldberg, J., concurring).
5

right against racial discrimination to the federal government, 10 and to require a hearing
prior to termination of welfare rights. 11 But while the courts have determined that state
actions lacking due process are illegitimate, and have placed additional burdens on
state institutions regulating public activity, they have also moved away from an ancient
commitment to citizen resistance against arbitrary assertions of governmental authority,
particularly in the area of arrest.
The common law requirement that the police must have a warrant to arrest a
person unless they observed a crime in progress or had probable cause to believe that
the person had committed a felony has become broader in the latter part of this century,
with new exceptions allowing more detentions and arrests by police for purposes of
questioning than previously.12 And since the 1960s, state legislatures and high courts
have stopped recognizing the individual right to resist unlawful arrest. That right,
originally based on the principle that an unlawful arrest constituted an assault serious
enough to provoke its victim or witnesses to forcibly oppose the arrest, had been
transformed by the early twentieth century into a right of self-defense against police
violence.13 The courts having reduced the right from one of principled resistance to
arbitrary power to a means by which one might avoid injury to ones person, twentieth
Bolling v. Sharpe, 347 U.S. 497 (1954).
Goldberg v. Kelly, 397 U.S. 254 (1970).
12
See, e.g., Rolando V. del Carmen, Criminal Procedure (1998); Wayne R. LaFave and
Jerald H. Israel, Criminal P{rocedure (1991).
13
See notes 92-181 and text, infra.
10
11

century reformers portrayed it as distinctly counterproductive. 14 They did so on the

grounds that resistance might easily lead to increased chance of injury for both the
arrestee and the officer, and that the common law rule reflected archaic conditions in
which defendants were incarcerated for lengthy periods in subhuman conditions
without recourse to the expansive due process protections provided in contemporary
law; any loss of liberty suffered by those arrested, the courts argued, could be remedied
and was not sufficient justification for a rule which might increase the chance of
violence.15 The abrogation of an individuals right to resist unlawful arrest is the end
result of a shifting preference within society and the courts for order over liberty.
This preference for order over liberty is particularly troubling today because of
changes in police procedure. As part of the movement to get tough on crime, police
are employing a variety of approaches, such as community-oriented policing, 16
community caretaking,17 and aggressive enforcement of traffic laws and city
ordinances as a means of detaining suspicious individuals for closer examination. 18
See notes 92-181 and text, infra.
See notes 92-181 and text, infra.
16
See, e.g., Mary Ann Wycoff and Wesley G. Skogan, Community Policing in Madison:
An Analysis of Implementation and Impact, in Dennis P. Rosenbaum (ed.), The
Challenge of Community Policing (1994); Linda S. Miller and Karen M. Hess, The Police
in the Community: Strategies for the 21st Century (1998).
17
See, e.g., Eric L. Muller, Hang on to Your Hats! Terry Into the Twenty-first Century, 72
St. Johns L. Rev. 1141 (1998).
18
See, e.g., David A. Harris, Car Wars: The Fourth Amendments Death on the Highway,
66 Geo. Wash. L. Rev. 556 (1998); Craig Hemmens and Jeff Maahs, Reason to Believe:
Ohio v. Robinette. 23 Ohio Northern University Law Review 309 (1997); David A.
14
15

While these techniques vary in the details, they share several common features,
including a more proactive approach by the police, who detain individuals for minor,
nonviolent offenses as a means of preventing more serious crime. 19 While there is
evidence that these more aggressive tactics may produce a short-term decrease in
crime,20 a number of critics have argued these more aggressive procedures create
increased hostility toward the police in inner city neighborhoods and among minority
groups who are the primary targets of these proactive policing tactics. 21
Aggressive enforcement of minor laws in minority communities is similar to the
infamous sweeps conducted by police officers in some cities 22 before the decisions in
Mapp v. Ohio23 and Terry v. Ohio24 limited the efficacy of such tactics.25 They also mirror
Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment,
1997 The Supreme Court Review 271 (1998).
19
See, e.g., Jerome H. Skolnick, Terry and Community Policing, 72 St. Johns L. Rev. 1265
(1998). An example is a Texas Department of Public Safety trooper who has stopped as
many as forty vehicles in one day for traffic violations and then conducted a consent
search. This trooper admits to following a car for 150 miles to see if it would violate a
traffic law so that he would have an excuse to conduct a traffic stop and attempt a
consent search. Theres Some Crooks and Dope Close, The Huntsville Item, August 4,
1996.
20
Elsa Brenner, Elsa, Patrol Program Credited With Drop in Crime, The New York
Times 13:1 (January 21, 1996).
21
See, e.g., William J. Stuntz, Race, Class and Drugs, 98 Col. L. Rev. 1795 (1998); see also
Dan M. Kahan and Tracey L. Meares, The Coming Crisis of Criminal Procedure, 86
Georgetown L. J. 1153 (1998).
22
Skolnick, supra note 19.
23
367 U.S. 643 (1961).
24
392 U.S. 1 (1968).
25
Mapp limited the efficacy of these tactics by declaring illegally seized evidence should
be excluded from trial. This police officers could no longer seize a person and search
5

the use of nuisance charges such as vagrancy and loitering, the prosecution of which
were also made more difficult through such decisions as Papachristou v. Jacksonville26
and Coates v. City of Cincinnati.27 Such sweeps necessarily involve extensive use of
police discretion and provide multiple opportunities for the abuse of authority. Another
form of proactive policing with the potential for abuse is the use of drug courier profiles
based on such factors as an individuals race and ethnicity. 28 Finally, anti-gang
ordinances which allow police to order suspected gang members to disperse upon
police orders also carry with them the potential for abuse, as recognized in the Supreme
Courts recent invalidation of Chicagos policy in City of Chicago v. Morales.29 These
practices have received tremendous support from law enforcement officials and some
commentators, but have also been subjected to withering criticism from both the
judiciary and scholars.
them without probable cause and then use anything they found against that person.
Commentators have noted that while arrests based on suspicionless police seizures
declined in some cities, there was a dramatic increase in the number of arrests made by
officers who observed a person drop an incriminating item. Such cases came to be
known as dropsy cases. Skolnick, supra note 19. Terry limited the efficacy of these
tactics by requiring the police to have at least reasonable suspicion before forcibly
detaining a suspect, and requiring the officer to demonstrate some fear for his safety
before conducting a limited, pat down search, or frisk.
26
405 U.S. 156 (1972).
27
402 U.S. 611 (1971).
28
See, e.g., David A, Harris, Factors for Reasonable Suspicion: When Black and Poor
means Stopped and Frisked, 69 Ind. L. J. 659 (1994); Tracey Maclin, Terry v. Ohios
Fourth Amendment Legacy: Black Men and Police Discretion, 72 St. Johns L. Rev. 1271
(1998).
29
119 S.Ct. 1849 (1999).
6

One of the primary complaints regarding these more aggressive tactics is that a
large number of innocent persons are subjected to police questioning and, in some
cases, harassment.30 For instance, one police officer in Ohio acknowledged stopping
some 786 persons for traffic violations in one year alone because he wanted to see if they
were carrying drugs, not to write traffic citations. 31 Not surprisingly, many people do
not appreciate such tactics, and may voice their displeasure to the officer. 32 There is
plenty of anecdotal evidence that police officers may respond poorly to challenges to
their authority, and arrest persons who protest.33 While these arrests may be later held
to be illegal, the person illegally arrested has already suffered the indignity of arrest,
booking, fingerprinting, and spending some time in a jail cell. 34 Some persons resist
arrest because they believe that the officer is acting illegally.
At common law there was a right to resist some illegal arrests, 35 which was
largely based on the principle that some unlawful arrests were so provocative that the
arrestee, or even an onlooker, might react against the injustice without deliberation or
concern for the consequences of their actions. 36 Although American courts adopted the
common law right to resist arrest, they changed the primary justification to self-defense
See Harris, supra note 18.
See Hemmens and Maahs, supra note 18.
32
See Brenner, supra note 20.
33
Id.
34
Malcolm Feeley, The Process is the Punishment (1992).
35
See infra notes 53-66 and text.
36
Id.
30
31

during the early twentieth century.37 In general, courts allowed the use of whatever
force was absolutely necessary to repel the assault constituting the attempt to arrest. 38
The only major restriction was that an arrest made pursuant to a warrant, even if later
determined to be technically defective, could not be resisted by force. 39
The trend over the past forty years has been to eliminate the right to resist
arrest.40 The abrogation of the right is based on several factors, including the
development of modern criminal procedure, the ability to seek redress via other means,
and the belief that violence ought not be encouraged. 41 Several state courts have
recently joined the large number of states which abandoned the right to unlawful resist
arrest since the 1960s, even while acknowledging the flagrant illegality of the police
misconduct.42 In the rush to eliminate a right perceived as contrary to contemporary
public policy, the courts have forgotten the original justification for the rulethat an
illegal arrest is an affront to the dignity and sense of justice of the arrestee, 43 as well as

James Engel, The Right to Resist An Unlawful Arrest in Modern Society, 18 Suffolk L.
Rev. 107 (1984).
38
Bad Elk v. United States, 177 U.S. 529, 535 (1900).
39
Annot., 44 ALR3d 1078, Modern Status of Rules as to Right to Resist Illegal Arrest.
See also, Note, Criminal ProcedureProtection Accorded the Officer Who Arrests
Under A Defective Warrant, 42 Ky. L.J. 120 (1953).
40
See infra notes 218-241 and text.
41
Id.
42
State v. Valentine, 935 P.2d 1294 (1997); State v. Hobson, 577 N.W.2d 285 (Wis. 1998)
43
See, e.g., The Queen v. Tooley, 93 Eng. Rep. 349 (K.B. 1710).
37

the common law tradition of rule under law. 44 Contemporary courts increased
deference to police authority undermines the common law principle that citizens are
governed by laws, and not men,45 and that it is the police officers lawful authority, and
not his person, which empowers him to make an arrest.
This article examines the development and history of the right to resist an
unlawful arrest,46 scholarly criticism of the common law rule, and the current status of
the rule. We argue that recent attacks on the rule are based on a misunderstanding of
the original justifications for creating the right to resist an illegal arrest, and that there
remains a great need for the right to resist an unlawful arrest, particularly as new police
tactics increase the probably for arbitrary assertions of authority. That such tactics often

Daniel J. Boorstein, The Mysterious Science of the Law: An Essay on Blackstones

Commentaries (1941).
45
Chief Justice Marshall incorporated this principle in American constitutional law
when he declared, The government of the United States has been emphatically termed
a government of laws, and not of men. Marbury v. Madison, 5 U.S. 137 (1803).
46
This article is concerned only with the right to resist an unlawful arrest. Related
issues include the right to resist a lawful arrest and the right to resist an arrest, lawful or
unlawful, that is attempted with excessive force. For a discussion of the right to resist
excessive force used to effect an arrest, see generally, Dag E. Ytreberg, Annot., Right to
Resist Excessive Force Used in Accomplishing Lawful Arrest, 77 A.L.R.3d 281. This
article also does not address the related issue of obstruction of a police officer or
obstruction of justice. While these charges may be levied against one who resists arrest
in some jurisdictions, in general these offenses are intended to penalize different
conduct. For a discussion of obstruction of a police officer, see Note, Types of Activity
Encompassed by the Offense of Obstructing a Public Officer, 108 Penn. L. Rev. 388
(1960). For a discussion of obstruction of justice, see Annot., Criminal Liability for
Obstructing Process As Affected By Invalidity or Irregularity of the Process, 10 A.L.R.3d
1146.
44

target individuals for questioning and arrest on the basis of race has only led to
increased suspicion of the police 47 provides a new and important justification for a
return to the common law right to resist unlawful arrest. That Americans live under
greater surveillance, and come into contact with state authority on a more frequent
basis today, provides law enforcement with more opportunities than ever before to
criminalize resistance to proactive policing tactics.
II. Development of the Right to Resist Arrest
An arrest has been defined by the United States Supreme Court as the taking of a
person into custody against his or her will for the purpose of criminal prosecution or
interrogation. 48 This definition is overly narrow, as an arrest may occur when a person
is taken into custody willingly. 49 Perhaps most clearly, An arrest requires either
physical force . . . or, where that is absent, submission to the assertion of authority. 50
Because the use of force is always a threat in an arrest, police officers may only lawfully

There have been a number of news stories in recent years detailing the concerns and
mistrust of racial and ethnic minorities. See, e.g., Brenner, supra note 20. For an
academic discussion of the impact of increasing distrust of police by members of inner
city communities, see Tracey L. Meares and Dan M. Kahan, Laws and (Norms of) Order
in the Inner Ciry, 32 Law and Society Rev. 805 (1998); Robert J. Sampson and Dawn
Jeglum Bartusch, Legal Cynicism and (Subcultural) Tolerance of Deviance: The
Neighborhood Context of Racial Differences, 32 Law and Society Rev. 777 (1998).
48
Dunaway v. New York, 442 U.S. 200 (1979). Dee also, del Carmen, supra note 12.
49
Thus, another court has defined arrest as the taking of a person into custody for the
commission of an offense as the prelude to prosecuting him (sic) for it. State v.
Murphy, 465 P.2d 900 (Or. App. 1970).
50
California v. Hodari D., 499 U.S. 621 (1990).
47

10

arrest an individual when they have met one of a series of criteria. A police officer may
arrest on the basis of a warrant, which may issue for either a misdemeanor or a felony.
An officer may also arrest without a warrant for felonies and also for misdemeanors
committed in his presence.51 An arrest made without proper foundation may be
deemed illegal by the courts.52 Additionally, an arrestee could, under the common law
rule, lawfully resist so long as they used reasonable force.
The right to resist an unlawful arrest has existed at common law for over three
hundred years. Its origins may be traced to the Magna Charta in 1215, 53 but it was not
until Hopkin Huggetts Case54 in 1666 that the right was established by judicial
decision. Hopkin Huggetts Case involved several men who came to the aid of a man

See United States v. Watson, 423 U.S. 411 (1976).

52
There are four different ways that an arrest can be unlawful. First where the officer is
executing an arrest under a warrant, the arrest may be unlawful if the warrant was
facially defective. Second, although the warrant is facially sufficient, it may be found
invalid if not lawfully issued. Third, in the instance of a warrantless arrest, the arrest
will be unlawful if the arresting officer did not have probable cause to believe that the
arrestee had committee a crime in his presence or lacked probable cause to believe the
arrestee had committed a felony outside his presence. Finally, an arrest which is
otherwise lawful may be unlawful if the officer employs excessive force in executing the
arrest. Penn Lerblance, Impeding Unlawful Arrest: A Question of Authority and
Criminal Liability, 61 Denver L.J. 655, 662-663 (1984).
53
No freeman shall be taken or imprisoned, or disseised, or outlawed or banished, or
in any way destroyed, nor will we pass upon him, nor will we send upon him, unless by
the lawful judgement of his peers, or by the law of the land. Magna Charta Sec. 39
(1215).
54
84 Eng. Rep. 1082 (K.B. 1666). The constable was actually not arresting the man for
having committed a crime, but instead was attempting to impress the man into the
army. Id.
51

11

being unlawfully arrested by a constable; in the resulting fight the constable was slain.
The court determined that a person who came to the aid of someone being unlawfully
arrested, and killed the constable, was guilty not of murder but of manslaughter. Under
the law at the time, an unprovoked killing was murder, while a killing with provocation
was manslaughter. According to the majority, the illegal arrest created adequate
provocation for the victim, justifying resistance and reducing the charge for killing from
murder (an unprovoked killing) to manslaughter (a killing upon sufficient provocation).
Additionally, the court stated that the illegal arrest constituted adequate provocation for
other citizens to correct the injustice:
That if a man be unduly arrested or restrained of his liberty by three men,
altho (sic) he be quiet himself, and do not endeavor any rescue, yet this is
a provocation to all other men of England, not only his friends but
strangers also for common humanity sake . . . to endeavor his rescue. 55
While the court did not explain precisely why the illegal arrest constituted provocation
for other citizens as well as the victim, this would be clarified in The Queen v. Tooley.56
In Tooley, a constable, Samuel Bray, arrested one Anne Dekins on the streets of
London on the charge of being a disorderly person. 57 As the constable was escorting
Id.
93 Eng. Rep. 349 (K.B. 1710).
57
Constable Bray apparently arrested Miss Dekins on the basis of a warrant issued
pursuant to a statute allowing certain officials to hear and punish incontinencies.
Among the activities included under the phrase incontinencies was lewd or unchaste
55
56

12

Dekins to jail, three men armed with swords attempted to rescue her, but stopped when
the constable identified himself and asserted his authority to arrest. Constable Bray
then took Dekins to jail. Upon leaving the jail, the constable was set upon by the same
three men, who now demanded Dekins release from jail. One Joseph Dent came to
Brays assistance and was killed by Tooley, one of the three men attacking Bray. Tooley
was arrested and charged with murder.
The court determined that Constable Bray had no basis for arresting Dekins, as
there was no evidence that she was behaving in a disorderly manner at the time of her
arrest.58 The question in Tooley was whether the illegal arrest of Dekins constituted
adequate provocation such as to reduce the charge from murder to manslaughter. By a
7-5 vote, the court held that manslaughter was the proper charge, relying in part on
Hopkin Huggetts Case.59
As in Hopkin Huggetts Case, in Tooley there was an illegal arrest, and the
killing of a constable, not by the victim of his illegal arrest, but by a bystander. However,
in Tooley the person who came to the aid of the illegally arrested person did not
observe the arrest, nor was a constable killed while attempting an arrest, but after the
prisoner had been transported to jail. Despite these differences, the court reached the
behavior. Id.
58
It appears from the record that Constable Bray had previously arrested Dekins on a
similar charge. Id. Thus he apparently arrested her on this occasion based on her prior
conduct.
59
84 Eng. Rep. 1082 (K.B. 1666).
13

same conclusion in Tooley as in Hopkin Huggetts Case, holding that the illegal arrest
served as provocation for resistance, even by others, thereby reducing the charge to
manslaughter. The Tooley court justified extending the provocation beyond the arrestee
on the basis that an unlawful arrest was an offense against the Magna Charta, and thus
an affront to all citizens:
The prisoners in this case had sufficient provocation; for if one be
imprisoned upon an unlawful authority, it is a sufficient provocation to all
people out of compassion; much more where it is done under a colour of
justice, and where the liberty of the subject is invaded, it is a provocation
to all the subjects of England . . . [b]ut sure a man ought to be concerned
for Magna Charta and the laws; and if anyone against the law imprison a
man, he is an offender against Magna Charta. 60
The court noted that the bystanders who attacked the constable acted at their peril
when they intervened.61 If a court subsequently determined the arrest to be legal, the
claim of provocation would fail, as the legality of the arrest was a matter for the courts
to determine later.
Both Tooley and Hopkin Huggetts Case dealt with the rights of bystanders to
intervene to resist the unlawful arrest of another, which was subsequently extended to

60
61

The Queen v. Tooley, 93 Eng. Rep. at 352-353.

Id., at 353.
14

instances where the victim of an illegal arrest resisted. The later courts reasoned that if
a third person can resist the arrest of another, the subject of the arrest can also resist, for
they suffer the battery of the unlawful arrest, as well as the provocation of injustice.
Subsequent cases also extended the rule from homicides to assaults against an arresting
officer. In these cases, the provocation served not to reduce the crime charged, but to
excuse the assault entirely.62 This resistance had to be reasonable, however. Later courts
held resistance was not if some time had passed since the arrest, because time had
allowed tempers to cool and for the victim of the illegal arrest to reflect. 63
One area in which the law was less clear involved incidents where officers
attempted arrests which they believed in good faith to be lawful, but which were later
deemed unlawful, such as when the warrant was defective. 64 When the officer
knowingly acted illegally, the provocation seemed clear, but when the officer was
unaware that the warrant was defective, courts felt the level of provocation was less, and

See, e.g., The King v. Thompson, 168 Eng. Rep. 1193 (K.B. 1825)(excusing an assault on
a constable by a journeyman wrongfully arrested on suspicion of stealing his masters
tools); The King v. Curvan, 168 Eng. Rep. 1213 (K.B. 1826)(excusing an assault on a
constable by a man wrongfully arrested on suspicion of insulting another).
63
Thomas J. Hearne, Note, Criminal LawSelf-defense and the Right to Resist an
Unlawful Arrest, 43 Mo. L. Rev. 744, 747 (citing 1 J. Turner, Russell on Crime, at 508
(11th ed. 1958).
64
See, e.g., The King v. Mead, 2 Stark. 205 (1817)(excusing an assault on a bailiff because
the arrest was unlawful on the grounds that the bailiff had displayed the proper
warrant, but not the underlying writ).
62

15

that when a warrant was valid on its face, there was no provocation. 65 Although this
limitation was justified because of a lack of provocation, the courts may have been
trying to protect from harm those police officers acting in good faith in executing an
apparently valid warrant. Police officers have a legal obligation to execute process
which is facially valid. Although the police officer had not made the mistake which
invalidated the arrest, the officer would be unfairly subject to attack for simply doing
her job. Unfortunately, the good faith exception fails to recognize the arrestees
subjective point of view - that he has not committed a crime, regardless of the existence
of the warrant, and is therefore the victim of an unlawful arrest. Those arrested under a
unlawful warrant are as likely be as enraged as someone unlawfully arrested by an
officer when the officer had herself made the mistake regarding the validity of the
arrest.
This good faith exception was amply justified. As one commentator has noted,
the cases in which the common law courts held an illegal arrest created provocation
excusing resistance generally involved truly outrageous conduct by the police officer,
arresting individuals through arbitrary assertions of authority. 66 The provocation in
these cases came directly from the officers actions, while in cases involving a technically
See, e.g., The Queen v. Davis, 1 Leigh and Craves C.C. Res. 64 (Camarthen Assizes,
1861)(holding that resisting an arrest when the constable had a warrant which
contained only some minor, technical defects, was not excused).
66
Paul G. Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128, 1131
(1969).
65

16

defective warrant, the provocation resulted from the actions of a third party. In essence,
courts said that an officer acted at his peril if he chose to make an arrest and that arrest
was later determined to be unlawful; if the officer was simply following orders, he was
protected to some degree. This was the state of the common law at the time of the
founding of the United States.
III. The Right to Resist Arrest in the United States
American courts adopted the English rule that an unlawful arrest constituted
provocation to resist. As in England, the courts struggled with whether a defect in the
warrant constituted provocation.67 The earlier cases tended to define any defect as
provocation, while later cases attempted to differentiate between defects that were
technical and those that were obvious.68 Obvious defects constituted provocation, while
technical defects generally did not. This led to inconsistent results as courts attempted
to explain the difference between a technical violation and obvious one.
Despite these problems, the right to resist arrest was adopted in the common law
of the majority of states prior to the turn of the century, and was not seriously
questioned until the mid-twentieth century, when it came under attack from scholarly
critics, and was disregarded in two influential model codes, the Uniform Arrest Act, 69

Id., at 1131.
68
Id., at 1131-1132. See also, Annot., 10 A.L.R.3d 1146 (1966).
69
The Uniform Arrest Act (1941).
67

17

adopted in 1941, and the Model Penal Code, 70 adopted in 1961. Eventually state
legislatures and courts began to adopt the critics position so that in the forty-seven
years between 1941 and 1998, the common law right to resist arrest has been limited in
thirty-seven states, nineteen by legislative enactment71 and eighteen by judicial
decision.72
A. Supreme Court Cases
Only once has the United States Supreme Court directly ruled on the question of
a right to resist unlawful arrest; it has also commented on the right in dicta and in
dissenting opinions in two other cases. In the single case on point, John Bad Elk v.
United States,73 decided in 1900, the defendant, an Indian policeman at the Pine Ridge

The Model Penal Code (1961).

71
Ala. Code Sec. 13A-3-28 (1982); Ark. Stat. Ann. Sec. 41-512 (1977); Cal. Penal Code Sec.
834a (1971); Colo. Rev. Stat. Sec. 18-8-103(2) (1978); Conn. Gen. Stat. Sec. 53a-23 (1981);
Del. Code Ann. Tit. 11, Sec 464(d) (1979); Fla. Stat. Sec. 776051(1) (1976); Ill. Stat. Ann.
Ch. 38, Sec. 7-7 (1972); Iowa Code Sec. 804.12 (1980); Mont. Code Ann. Sec. 45-3-108
(1981); Neb. Rev. Stat. Sec. 28-1409(2) (1979); N.H. Rev. Stat. Ann. Sec. 594.5 (1974); N.Y.
Penal Law Sec. 35.27 (1975); Or. Rev. Stat. Sec. 161-260 (1981); 18 Pa. Cons. Stat. Sec.
505(b)(1)(2) (1973); R.I. Gen. Laws Sec. 12-7-10 (1981); S.D. Comp. Laws Ann. Sec. 22-115 (1978); Tex. Penal Code Sec. 9.31(b)(2), 38.03 (1974); Va. Code Sec. 18.2-460 (1982).
72
Miller v. State, 462 P.2d 421427 (Alaska 1969); State v. Hatton, 568 P.2d 1040, 1046
(Ariz. 1977); State v. Richardson, 511 P.2d 263, 268 (Idaho 1973); State v. Thomas, 262
N.W.2d 607, 610-611 (Iowa 1978); State v. Austin, 381 A.2d 652, 654-55 (Me. 1978);
Commonwealth v. Moreira, 447 N.E.2d 1224, 1227 (Mass. 1983); In the Matter of the
Welfare of Burns, 284 N.W.2d 359, 360 (Minn. 1979); State v. Nunes, 546 S.W.2d 759, 762
(Mo. Ct. App. 1977); State v. Koonce, 214 A.2d at 433 (N.J., 1965); State v. Doe, 583 P.2d
464, 467 (N.M. 1978); City of Columbus v. Fraley, 324 N.E.2d 735, 740 (Ohio 1975); State
v. Blaine, 133 Vt. 345, 348, 426 A.2d 834 (Vt. 1975).
73
34 U.S. 529 (1900).
70

18

Indian Reservation in South Dakota, was convicted of murder after shooting a fellow
Indian policeman who had come, with two others, to arrest him. The three officers had
received verbal orders from a Captain Gleason to bring Bad Elk to the reservation office
to answer some questions about an incident in which Bad Elk had been firing his gun
into the air. There was no arrest warrant, nor evidence that Bad Elk had committed a
criminal violation. When confronted at his home, Bad Elk refused to accompany the
three patrolmen to the office, saying it was too late and that he would go with them in
the morning. There was some dispute as to precisely what happened next, 74 but Bad
Elk fired his rifle at the three police officers, killing John Kills Back. At Bad Elks trial
for murder, Bad Elks counsel requested a jury instruction which reflected the common
law right to resist an unlawful arrest. 75 The trial judge refused to give such an
instruction, and instead instructed the jury that the three police officers had the right to
arrest Bad Elk and that he could use force only to protect himself from any excessive

The police officers claimed that Bad Elk fired on them without provocation, while Bad
Elk claimed the deceased made a movement as if he was going for his weapon about to
shoot him. Id., at 532-533.
75
The proffered instruction was: From the evidence as it appears in this action, none of
the policemen who sought to arrest the defendant in this action prior to the killing of
the deceased, John Kills Back, were justified in arresting the defendant, and he had a
right to use such force as a reasonably prudent person might do in resisting such arrest
by them. Id., at 533.
74

19

force used by the officers to make the arrest.76 Bad Elk was convicted of murder and
sentenced to death.
On appeal, the Supreme Court reversed the lower court. Justice Peckham, for a
unanimous Court, wrote that the jury instruction given by the trial judge was
erroneous:
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 the right to
arrest, to manslaughter . . . [I]f the officer have no right to arrest, the other
party might resist the illegal attempt to arrest him, using no more force

The trial judge charged the jury as follows: The deceased, John Kills Back, had been
ordered to arrest the defendant; hence he had a right to go and make the attempt to
arrest the defendant. The defendant had no right to resist him . . . the deceased, being
an officer off the law, had a right to be armed, and for the purpose of arresting the
defendant he would have had the right to show his revolver. He would have had the
right to use only so much force as was necessary to take his prisoner, and the fact that he
was using no more force than was necessary to take his prisoner would not be sufficient
justification for the defendant to shoot him and kill him. The defendant would only be
justified in killing the deceased when you should find that the circumstances showed
that the deceased had so far forgotten his duties as an officer and had gone beyond the
force necessary to arrest defendant, and was about to kill him or inflict great bodily
injury upon him, which was not necessary for the purpose of making the arrest. Id., at
533-534.
76

20

than was absolutely necessary to repel the assault constituting the attempt
to arrest.77
Peckhams opinion clearly endorsed the common law rule that an illegal arrest may be
resisted, and when resistance results in the police officers death, the provocation
inherent in the illegal arrest attempt reduces the charge from murder to manslaughter.
The Court did not offer a rationale for this rule, but merely indicated that such a right
was firmly established. 78
In a subsequent case, United States v. Di Re,79 decided in 1948, the Supreme
Court again endorsed the right to resist an unlawful arrest in similarly vague terms, this
time in dicta. Di Re involved a prosecution for unlawfully possessing ration coupons
during World War Two. At issue was whether the police possessed the requisite
probable cause to arrest the defendant. When the police seized the defendant, he did
not object to being arrested. At trial, and on appeal, the prosecution argued that the
defendants failure to protest could be used to create probable cause, on the theory that
an innocent man would have objected to, or resisted, his arrest.
The Court decided the case on other grounds, but dismissed the prosecutions
claim that submission to the police could be used as a factor in creating probable cause:
Id., at 534-535.
Some commentators have incorrectly asserted that the Court endorsed the provocation
rationale for the common law rule, but this overstates what the Court actually dId. See,
e.g. Penn Lerblance, supra note 52, at 664.
79
332 U.S. 581 (1948).
77
78

21

[C]ourts will hardly penalize failure to display a spirit of resistance or to

hold futile debates on legal issues in the public highway with an officer of
the law. A layman may not find it expedient to hazard resistance on his
own judgement of the law at a time when he cannot know what
information, correct or incorrect, the officers may be acting upon . . . [I]f
the officers believed they had probable cause for his arrest on a felony
charge, it is not to be supposed that they would have been dissuaded by
his profession of innocence.80
In addition, the Court referred to the common law right to resist an illegal arrest,
stating: One has an undoubted right to resist an unlawful arrest, and courts will
uphold the right of resistance in proper cases.81 The Court, however, failed to clarify
the basis for this assertion.
The Court has not seriously considered the right to resist an unlawful arrest since
Bad Elk, missing an opportunity to do so in Wainwright v. New Orleans.82 Wainwright,
a Tulane law student, was detained by several New Orleans police officers who thought
he fit the description of a murder suspect. He refused to remove his shirt to allow the
police to determine whether he had a tattoo similar to the one in the description of the

Id., at 594.
81
Id.
82
392 U.S. 598, 614-615 (Douglas, J., dissenting).
80

22

murder suspect,83 and was then arrested on charges of vagrancy, resisting arrest and
reviling the police.84 At the police station, he first offered to return to his apartment to
secure identification, but then folded his arms and tried to avoid the police. After the
original charges were dismissed, he was charged with, and convicted of, resisting arrest
based on his conduct at the police station. 85 The trial court ruled the initial arrest was
lawful, and that Wainwright had no right to refuse to comply with police orders to
remove his shirt. 86 The Louisiana Supreme Court upheld the trial court ruling, 87 and
Wainwright sought review in the United States Supreme Court, arguing he had a Fourth
Amendment right to resist an unlawful (and hence unreasonable) arrest. 88
The Court granted his petition, but subsequently dismissed the writ of certiorari
as improvidently granted. Both Chief Justice Warren and Justice Douglas dissented,
with Warren arguing that Wainwrights arrest was illegal under state law. Although he
saw no need to reach the Fourth Amendment issue in this case, Warren did suggest that
the right to resist an unlawful seizure of the person may be basic to the Fourth

Jefferson D. Hughes III, Note, The Right to Resist Unlawful Arrest, Louis. L. Rev. 840,
841 (1978).
84
392 U.S. 598, 614-615 (Douglas, J., dissenting). The basis for the last charge apparently
was his reference to the police as stupid cops. Id., at n. 12.
85
Hughes, supra note 83.
86
Id.
87
City of New Orleans v. Wainwright, 184 So.2d 23 (1966).
88
Wainwright v. City of New Orleans, 392 U.S. 598 (1967).
83

23

Amendment.89 For his part, Douglas asserted that the Courts refusal to find a
constitutional basis for the right to resist an unlawful arrest meant that the Court had
forsaken the Western tradition and taken a long step toward the oppressive police
practices not only of Communist regimes but of modern Iran, democratic Formosa,
and Franco Spain.90 Despite, or perhaps because of, such strong language, neither the
Chief Justice nor Douglas could persuade any of the Warren Courts stalwart
libertarians, including Black, Brennan, Fortas or Marshall, who had brought about the
due process revolution of the 1960s, to join them. 91
B. Early Scholarly Criticism
The first reported scholarly criticism of the right to resist an unlawful arrest
appeared in a 1924 law review note.92 The notes author briefly recounted the

392 U.S. 598, at 603-608 (Warren, C.J., dissenting). The Chief Justices suggestion that
there may be a right to resist not just unlawful arrests but unlawful seizures has
profound implications in light of the Courts determination in Terry v. Ohio, 392 U.S. 1
(1968), that while the police may conduct a brief investigative detention on the basis
of reasonable suspicion of criminal activity, such a stop and frisk constitutes a form
of seizure. If this is so, then there may be a constitutional basis for resisting not only an
unlawful arrest, but any on the street encounter that rises to the level of a seizure.
Such a holding would obviously have profound implications for current police
practices. For a discussion of the stop and frisk doctrine, see generally, 72 St. Johns L.
Rev. 721-1382 (1998).
90
392 U.S. 598, 615 (Douglas, J., dissenting).
91
Fortas wrote a concurrence, joined by Marshall, that warned against drawing
inferences regarding the authority of police to arrest people under such circumstances,
and explicitly declaring that they had not chosen to decide the case on the merits
because the case record was underdeveloped. 392 U.S. 598.
92
Note, Resistance to Illegal Arrest, 1924 Michigan Law Review 62 (1924).
89

24

development of the common law rule in the United States and acknowledged that
[m]ost of the cases hold that a person may use all the force reasonably necessary to
resist the illegal arrest, short of taking life. 93 Nonetheless, the author concludes that the
law seems to be too willing to glorify the right to personal liberty . . . 94 and that the
common law rule should be abrogated. The idea that liberty was too highly valued and
so could pose a threat to social welfare is a peculiarly 20th century idea, and clearly
antithetical to the liberal tradition, which animates much of modern criticism of the
common law rule. That public safety should be considered a paramount value is
indicative of how American legal discourse would continue to shift from a highly
individualistic ideology of rights and responsibilities to one valuing physical security. 95
This preference for the physical security of both officers and arrestees over the
common law understanding of individual liberty would be continued and amplified in
one of the first academic criticisms of the rule, a 1942 law review article by Harvard law
professor Sam Bass Warner. 96 Warners article was a discussion of the Uniform Arrest
Act, which had drafted by a committee comprised of police officers, prosecutors,
defense attorneys, judges, attorneys general, and law professors. 97 Warner had served as
the reporter for the committee, which was formed by the Interstate Commission on
Id.
Id., at 65.
95
Laurence Friedman, Total Justice, pp. 45-79 (1992).
96
Sam Bass Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315 (1942).
97
Id., at 316.
93
94

25

Crime for the purpose of drafting a model act to reconcile the law as written with the
law in action.98 The Act covered nine topics, including questioning and detaining
suspects, searching suspects for weapons, and arrest without a warrant. 99 Section Five100
of the Act stated:
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.101
While the Act imposed no specific penalty for resisting arrest, by making resistance to
an arrest illegal in all instances, the Uniform Arrest Act prevented the person being
arrested from using the illegality of the arrest as a defense to charges of assault,
manslaughter, or murder of the arresting officer. 102
Id.
Id., at 317. The Uniform Arrest Act is included in the Warner article, on pages 343347. Its full title is An Act Concerning Arrests by Peace Officers, Providing for the
Questioning and Detention of Suspects, Searching Suspects for Weapons, the Force
Permissible in Making and Resisting Arrest, Arrests without a Warrant, the Use of
Summons instead of Arrest, the Release and Detention of Persons Arrested and the
Identification of Witnesses, Prescribing Penalties, and Making Uniform the Law
Relating Thereto. Id., at 343-344. In composing the title, the authors of the Act
apparently opted for comprehensiveness of coverage over brevity, as the full title sets
forth the nine topics included in the Act.
100
Professor Warner notes in the text of the article that the right to resist arrest is covered
in Section Six of the Act. Id., at 331. The Act as printed in the article covers the right in
Section Five. Id., at 345. This error has been repeated by later commentators.
101
Id., at 345.
102
Id., at 331.
98
99

26

Warners justification for eliminating the right to resist arrest was that society had
changed, so that the conditions which gave rise to the rule no longer existed, making
the rule a dangerous anachronism.103 First, Warner argued, the act of resisting an arrest
in the 20th century posed far greater perils to society than during the period when the
common law evolved:
Constables and watchmen were armed only with staves and swords, and
the person to be apprehended might successfully hold them off with his
own weapon 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. 104
While modern weaponry is far more lethal than that of earlier times, both Hopkin
Huggetts Case and The Queen v. Tooley, involved the death of a constable. Despite the
fatal result of the resistance, the English courts were willing to create the right, even
while creating a serious danger,105 as Professor Warner described the common law
rules consequences.
Warner s second justification for eliminating the right to resist an unlawful arrest
was that it was only exercised by criminals:
Id., at 330.
104
Id.
105
Id.
103

27

Though at one time the innocent may have been as likely to resist illegal
arrest as the guilty, this is not longer true. 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. 106
This argument is similar to the claims often made against modern criminal procedure
rules such as the exclusionary rule 107 and the requirement that suspects in custody be
apprised of their constitutional rights prior to any interrogation. 108 While some claim
that only those who have committed a crime will need to claim the benefits of the
exclusionary rule or the right to remain silent, the Supreme Court and numerous
commentators have made it clear that these rights are held by all Americans.
Warners second argument is based on two incorrect premises. The first is that
only criminals are armed and able to successfully resist arrest. 109 Warner overstates
what constitutes a successful resistance to arrestescape. Having a right to resist
Id.
The exclusionary rule is a judge-created remedy for violations of the Fourth
Amendment by police officers or their agents. Under this rule, first applied to the
federal government in Weeks v. United States, 232 U.S. 383 (1914), and applied to the
states in Mapp v. Ohio, 367 U. 643 (1961) any evidence seized by police officers in
violation of the Fourth Amendment will be excluded from trial.
108
This requirement was first announced by the Court in Miranda v. Arizona, 377 U.S.
201 (1966).
109
Warner, supra note 96, at 330.
106
107

28

arrest does not apply only to those who escape, but more often serves as a defense to a
charge of resisting arrest for those who resist but are still arrested. Warners second
premise, that innocent persons will not object to the minor inconvenience of a wrongful
arrest,110 completely ignores the original justification for the right to resist arrestthat a
person wrongfully arrested, or even a bystander who observes the wrongful arrest, has
been sufficiently provoked by the illegal arrest that any assault is excused or culpability
in a homicide lessened. Warner offers no support for his conclusion that only enemies
of society111 will resist arrest, neglecting those who may resist out of passion or
principle. He also fails to note one of the basic principles of due process, that an arrestee
is not yet guilty in the eyes of the law, and proceeds to describe the arrestee as a guntoting hoodlum,112 or a gangster.113
However, it is Warners third rationale for eliminating the right to resist unlawful
arrest which has been most often seized upon by later commentators 114 and courts.115
According to Warner, the dangers inherent in being arrested have been all but
eliminated in modern society.116 Warner ties the origins of the right to resist unlawful

Id.
Id, at 331.
112
Id, at 330.
113
Id.
114
See infra notes 124-140 and text.
115
See, e.g., State v. Valentine, 935 P.2d 1294 (1997); State v. Hobson, 577 N.W.2d 285 (Wis.
1998).
116
Warner, supra note 96, at 330.
110
111

29

arrest to the supposed recognition by the common law courts that being arrested
subjected a person to great peril:
The rule developed when long imprisonment, often without the
opportunity of bail, goal [sic] fever, physical torture, and other great
dangers were to be apprehended from arrest, whether legal or illegal. 117
This argument built upon Warners prior research into the law of arrest. In his article
Investigating the Law of Arrest,118 published two years before his article on the
Uniform Arrest Act, Warner described in great detail the frightening conditions in
English jails:
[P]risoners were often kept in irons. Those without the means to buy
better accommodations were frequently huddled together in dark, filthy
rooms, in close proximity to depravity and disease. Under such
conditions, imprisonment until the next term of court was often
equivalent to a death sentence, especially during the frequent periods
when prisons were swept by a malignant form of typhus known as gaol
fever.119

Id.
118
Sam B. Warner, Investigating the Law of Arrest, 26 A.B.A. J. 151 (1940).
119
Id., at 152.
117

30

Warner drew heavily from several early accounts of prison conditions 120 to argue that
the right to resist unlawful arrest was developed in response to deplorable prison
conditions rather than out of the law of provocation. Warner never mentions or explains
the rationale of cases such as Tooley, nor does he refer to any cases in which common
law courts mentioned the deplorable prison conditions, much less used such conditions
to justify the right to resist unlawful arrest; Warners claim of such concern was found
unsustainable by Paul Chevigny many years later. 121 Nonetheless, Warners explanation
for creation of the right to resist unlawful arrest appears to have been accepted without
question by subsequent courts122 and most commentators.123
The next scholarly examination of the right to resist arrest, a student note
published almost ten years after Professor Warners seminal article, 124 echoes his claims

See, e.g., John Howard, The State of Prisons (1929). A later commentator, examining
the same sources noted that gaol fever was such a problem that in 1730 several
officers of the court, including the lord chief baron, at the Lent Assize at Taunton
contracted the disease from prisoners brought before the bar and died. Ralph D. Smith,
Comment, Criminal LawArrestThe Right to Resist Unlawful Arrest, 7 Nat.
Resources J. 119, 122 n. 16 (1967).
121
Id., at 1130-1131.
122
See, e.g., State v. Valentine, 935 P.2d 1294, at 1301 (noting One can understand why, as
the Tooley court said, an unlawful arrest was a great provocation affecting all people
out of compassion) (internal quotation marks omitted).
123
See, e.g., Smith, supra note 120, at 123 (noting that Where imprisonment was often the
equivalent of a death sentence, or at least, a living death, one can understand why men
resisted arrest. But see Chevigny, supra note 66.
124
Robert H. K. Walter, CommentTaking Away Right to Resist Illegal Arrest, 39 Cal.
L. Rev. 96 (1951).
120

31

that the right developed in response to poor prison conditions 125 and that only criminals
will avail themselves of the right to resist an unlawful arrest. 126 The author also argues
that in the case of California, the time has come to reconsider the rule, as prison
conditions have improved127 and police are better armed to prevent successful attempts
at resisting arrest.128 At the same time, he concedes that, at the time of writing, the right
to resist arrest seems to be universal and virtually unchallenged by statute, 129 and that
the only people criticizing the right are scholarly commentators and police
departments.130 That would change in the next few years.

Id., at 112.
He suggests that the law-abiding citizen will be satisfied seeking redress through a
subsequent civil or criminal action, as [t]he innocent arrestee is not apt to risk
committing an offense and inviting retaliatory force by physically restraining an officer.
Unarmed and unaccustomed to opposing the police, the idea of escape does not occur
to him. Walter, supra note 124, at 112.
127
Improved, yes, but perhaps still less than ideal, according to the author, who gives
them something less than a ringing endorsement: Whatever their deficiencies,
Californias jails are not medieval. Id.
128
Id.
129
Id., at 111. In fact, the author quotes from the leading California case on the right to
resist arrest at that time; The right of a person to resist unlawful arrest cannot be
denied. Id., quoting People v. Craig, 91 P. 997 (1907).
130
Id. Regarding the police, the author states The [police] are unanimous in believing
that physical resistance to an arrest by an officer whose identity is known to the suspect
should be forbidden. This does not mean that they believe police should not be subject
to restraints against illegal arrests, but they do believe that the proper forum for
determining the lawfulness of an arrest should be the courts, not the scene of the
arrest.
125
126

32

Several legal and extralegal movements occasioned the first stage of change in the
common law rule. While the early criticism of the right to resist arrest did not
immediately lead to court decisions overruling prior cases or legislation eliminating the
right, during the 1960s several courts did issue decisions eliminating the right. 131 From
the language of these decisions, it appears that courts had taken notice of the academic
criticism of the right and adopted many of the same arguments. 132 The courts that
abandoned the rule relied on the rationale that social change had made the rule
obsolete and dangerous.133 Few courts even recognized the common law rationale of
provocation, and a number of state courts, even those recognizing the right to resist
arrest, changed the rationale from provocation to self-defense. 134 The Model Penal Code
and statutory abandonment of the right in other states also seems to have influenced
these courts decisions.135
In the early 1950s, the American Law Institute (ALI), a private association
comprised of prosecutors, defense attorneys, judges, and law professors, created an
advisory committee with the more ambitious goal of drafting a comprehensive model
criminal code to serve as a treatise on the major problems of the penal law and their
See, e.g., State v. Koonce, 214 A.2d 428 (New Jersey 1965).
See, e.g., Miller v. State, 462 P.2d 421 (Alaska 1969).
133
See, e.g., City of Columbus v. Fraley, 324 N.E.2d 735 (Ohio 1975)..
134
James Engel, Criminal LawThe Right to Resist an Unlawful Arrest in Modern
SocietyCommonwealth v. Moreira, 388 Mass. 596, 447 N.E.2d 1224 (1983), 18 Suffolk
L. Rev. 107 (1984);
135
Lerblance, supra note 52.
131
132

33

appropriate solutions,136 the Model Penal Code, published in 1961. 137 Included in the
code was a section dealing with self-defense, which itself included a provision dealing
with the right to resist unlawful arrest. Following the Uniform Arrest Act, the drafters of
the Model Penal Code eliminated the right to resist arrest, providing that: The use of
force is not justified under this section . . . to resist an arrest that the actor knows is
being made by a peace officer, although the arrest is unlawful. 138 The Model Penal
Code committee rationalized their decision to eliminate the right to resist unlawful
arrest in part because of the development of alternate remedies for an aggrieved
arrestee, and in part because the use of force by the arrestee was likely to result in
greater injury to the person without preventing the arrest. 139 According to a leading
treatise on the criminal law, the Model Penal Code Section abrogating the right to
unlawful resist arrest presumes that, because there are other remedies aside from force,
an arrestee should submit to the indignity of the arrest and the inconvenience of the
detention until release, as these are relatively minor matters.140

Model Penal Code (Tent. Draft No. 8, 1958).

For a discussion of the writing and adoption of the Model Penal Code and a
discussion of its contents, see Herbert Wechsler, The Model Penal Code and the
Codification of American Criminal Law, in Roger Hood, ed., Crime, Criminology, and
Public Policy 419 (1974).
138
Model Penal Code Section 3.04(2)(a)(i)(1985).
139
Model Penal Code 3.04(2)(a)(I) commentary at 19 (Tent. Draft No. 8, 1958).
140
Wayne R. LaFave and Austin W. Scott, Criminal Law at 462 (2d ed. 1986).
136
137

34

IV. The Movement to Abrogate the Right to Resist Unlawful Arrest--1941 to 1970
The modern move away from the common law rule began in earnest in 1941,
when two states, Rhode Island and New Hampshire, adopted versions of the Uniform
Arrest Act through legislative action; 141 they would remain the only states to reject the
common law rule until Delaware legislatively abrogated the right in 1953, and
California erased the right by statute in 1957. 142 The publication of the Model Penal
Code in 1962, a spate of academic criticism of the common law rule in the late 1960s,
and the abandonment of the rule by several influential state courts led to a widespread
effort to eliminate the right to resist arrest. In 1965, the New Jersey courts were the first
to strike down the common law rule through judicial decision, 143 a watershed decision
which reinvigorated the movement towards elimination of the right. By 1975, five more
states had eliminated the common law right to resist an unlawful arrest: two - Illinois
and New York - by statute,144 and three - Alaska, Idaho and Ohio - by case law. 145 The
pace of change then rapidly quickened, as thirty-one states had eliminated the common

N.H. Rev. Stat. Ann. Sec. 594.5 (enacted 1941); R.I. Gen. Laws Sec. 12-7-10 (enacted
1941).
142
Del. Code Ann. Tit. 11, Sec. 1905 (enacted 1953); Cal. Penal Code Sec. 834(a) (enacted
1957).
143
State v. Koonce, 214 A.2d 428 (App. Div. 1965).
144
Ill. Rev. Stat. Ch. 38, Sec. 7-7 (1971); N.Y. Penal Law Sec. 35.27 (McKinney Supp. 1975
145
Miller v. State, 462 P.2d 421 (Alaska 1969); State v. Richardson, 511 P.2d 263 (Idaho
1973); City of Columbus v. Fraley, 324 N.E.2d 735 (Ohio 1975).
141

35

law rule: nineteen by statute,146 and twelve by case law by 1983.147 Presently, thirtyseven states have abrogated the right to resist an unlawful arrest: nineteen by statute, 148
and eighteen by case law.149

Ala. Code Sec. 13A-3-28 (1982); Ark. Stat. Ann. Sec. 41-512 (1977); Cal. Penal Code
Sec. 834a (1971); Colo. Rev. Stat. Sec. 18-8-103(2) (1978); Conn. Gen. Stat. Sec. 53a-23
(1981); Del. Code Ann. Tit. 11, Sec 464(d) (1979); Fla. Stat. Sec. 776051(1) (1976); Ill. Stat.
Ann. Ch. 38, Sec. 7-7 (1972); Iowa Code Sec. 804.12 (1980); Mont. Code Ann. Sec. 45-3108 (1981); Neb. Rev. Stat. Sec. 28-1409(2) (1979); N.H. Rev. Stat. Ann. Sec. 594.5 (1974);
N.Y. Penal Law Sec. 35.27 (1975); Or. Rev. Stat. Sec. 161-260 (1981); 18 Pa. Cons. Stat. Sec.
505(b)(1)(2) (1973); R.I. Gen. Laws Sec. 12-7-10 (1981); S.D. Comp. Laws Ann. Sec. 22-115 (1978); Tex. Penal Code Sec. 9.31(b)(2), 38.03 (1974); Va. Code Sec. 18.2-460 (1982).
147
Miller v. State, 462 P.2d 421427 (Alaska 1969); State v. Hatton, 568 P.2d 1040, 1046
(Ariz. 1977); State v. Richardson, 511 P.2d 263, 268 (Idaho 1973); State v. Thomas, 262
N.W.2d 607, 610-611 (Iowa 1978); State v. Austin, 381 A.2d 652, 654-55 (Me. 1978);
Commonwealth v. Moreira, 447 N.E.2d 1224, 1227 (Mass. 1983); In the Matter of the
Welfare of Burns, 284 N.W.2d 359, 360 (Minn. 1979); State v. Nunes, 546 S.W.2d 759, 762
(Mo. Ct. App. 1977); State v. Koonce, 214 A.2d at 433; State v. Doe, 583 P.2d 464, 467
(N.M. 1978); City of Columbus v. Fraley, 324 N.E.2d 735, 740 (Ohio 1975); State v. Blaine,
133 Vt. 345, 348, 426 A.2d 834 (Vt. 1975).
148
Ark. Code Ann. 5-54-103 (Michie 1993); Colo. Rev. Stat. Ann. 18-8-103 (West 1986);
Conn. Gen. Stat. Ann. 53a-23 (West 1994); Del. Code Ann. tit. 11, 464(d) (1995); Fla.
Stat. Ann. 776.051 (West 1992); Haw. Rev. Stat. Ann. 710-1026 (Michie 1993); 720 Ill.
Comp. Stat. Ann. 5/7-7 (West 1993); Iowa Code 804.12 (1997); Kan. Stat. Ann. 21-3217
(1995); Ky. Rev. Stat. Ann. 520.090 (Michie 1990); Mont. Code Ann. 45-3-108 (1997);
Neb. Rev. Stat. Ann. 28-1409(3) (Michie 1995); N.H. Rev. Stat. Ann. 594:5 (1986); N.Y.
Penal Law 35.27 (McKinney 1998); N.D. Cent. Code 12.1-05-03 (1997); Or. Rev. Stat.
161.260 (1995); 18 Pa. Cons. Stat. Ann. 505(b)(1)(i) (West 1983); R.I. Gen. Laws 12-7-10
(1994); S.D. Codified Laws 22-11-5 (Michie 1988); Tex. Penal Code Ann. 38.03 (West
1994).
149
Miller v. State, 462 P.2d 421, 427 (Alaska 1969); State v. Hatton, 568 P.2d 1040, 1046
(Ariz. 1977); Evans v. City of Bakersfield, 27 Cal. Rptr. 2d 406, 409 (Ct. App. 1994); State
v. Richardson, 511 P.2d 263, 268 (Idaho 1973); Casselman v. State, 472 N.E.2d 1310, 1317
(Ind. Ct. App. 1985); State v. Austin, 381 A.2d 652, 654-55 (Me. 1978); Commonwealth v.
146

36

As of 1965 only California, Delaware, New Hampshire, New Jersey, and Rhode
Island had criminalized resistance of an illegal arrest, with all but New Jersey doing so
by statute.150 All four states which did so through statute used language which closely
followed Section Five of the Uniform Arrest Act. 151 The New Jersey appellate court
decision in State v. Koonce referred to Warner, the Uniform Arrest Act, and the Model
Penal Code for justification in refusing to recognize the right. 152 The New Jersey court
focused on two arguments: that Force begets force and escalation into bloodshed is a
frequent probability,153 and that arrestees had other, legal, forms of recourse [i]n this

Moreira, 447 N.E.2d 1224, 1227 (Mass. 1983); State v. Wick, 331 N.W.2d 769, 771 (Minn.
1983); State v. Nunes, 546 S.W.2d 759, 762 (Mo. Ct. App. 1977); State v. Koonce, 214 A.2d
at 433; State v. Doe, 583 P.2d 464, 467 (N.M. 1978); City of Columbus v. Fraley, 324
N.E.2d 735, 740 (Ohio 1975); State v. Gardiner, 814 P.2d 568, 576 (Utah 1991); State v.
Peters, 450 A.2d 332, 335 (Vt. 1982); State v. Valentine, 935 P.2d 1294, 1304 (Wash. 1997);
State v. Hobson, 577 N.W.2d 825 (Wis. 1998); Roberts v. State, 711 P.2d 1131, 1134 (Wyo.
1985).
150.
Max Hochanadel and Harry W. Stege, NoteCriminal Law: The Right to Resist
Arrest: An Out-Dated Concept? 3 Tulsa L.J. 40 (1966). All four states which did so
through statute used language which closely followed Section Five of the Uniform
Arrest Act. The authors describe the Act as an attempt, on the part of the educated,
informed persons to provide a compromise between unbounded liberty and an ordered
society. Id.. at 47. For a discussion of the Uniform Arrest Act generally, see Warner,
supra note 96.
151
Id. at 47.
152.
[A] private citizen may not use force to resist arrest by one he knows or has good
reason to believe is an authorized peace officer, whether or not the arrest is illegal.
State V. Koonce, 214 A.2d 428 At 436 (App. Div. 1965).
153
Koonce at 436. [P]revention of death or serious injury, not only to participants in an
arrest fracas but of innocent third persons, precludes tolerance of any formulation
which validates an arrestees resistance of a police officer with force merely because the
arrest is ultimately adjudged to have been illegal. Id. at 435-436.
37

era of constantly expanding legal protections.154 The Koonce court also argued that
police officers attempting in good faith, although mistakenly, to perform their duties ...
should be relieved of the threat of physical harm at the hands of the arrestee. 155 In so
ruling, the court broadened the good faith exception contained in the common law rule
that one might not resist an officer who possessed a warrant for ones arrest into a
blanket assumption of good faith, closing off the possibility of resistance even when the
arresting officer acted arbitrarily or with discriminatory purpose.
Koonce signaled not only the beginning of the end of the right to resist, but also
renewed attention to the issue, and at least five law review articles addressed the issue
between 1966 and 1970.156 The first was a student written article that appeared in 1966,
shortly after the decision in Koonce.157 The authors noted that the right to resist arrest
was recognized in forty-five of the fifty states,158 but argued that the right should be
abrogated. Their argument closely mirrored Warners159 despite evidence that some of
Koonce at 436.
Id.
156
See, e.g., Chevigny, supra note 66; Smith, supra note 120; Note, Defiance of Unlawful
Authority, 83 Harv. L. Rev. 626 (1970); Comment, The Right to Resist Unlawful Arrest, 2
N.C. Cen. L.J. 125 (1970). While the period between 1966 and 1970 represents the high
water mark in interest in the right to resist arrest, interest did not end there. At least six
more law review articles appeared in the 1970s. See notes 218-221, and text, infra.
157
Hochanadel and Stege, supra note 150.
158
Id., at 46.
159
Hochanadel and Stege, supra note 150, at 46. The authors also argue that the
decisions in The Queen v. Tooley and Hopkin Huggetts Case were based on dicta from
a prior decision, Sir Henry Ferrerss (sic) Case, 79 Eng. Rep. 924 (K. B. 1635), and thus
the right to resist an unlawful arrest is ill-founded and based on an incorrect
154
155

38

the alternative remedies to an unlawful arrest were not effective, and that neither civil
nor criminal sanctions had proven effective in preventing police abuses. 160 Warners
arguments were also reiterated in a student note by Ralph Smith published the
following year examining the right to resist in New Mexico. 161 Smith also concluded that
the right to resist an unlawful arrest was an undesirable anachronism, 162 and asserted
that the right to resist was based on the concept of self-help, and that self-help was only
justified when there is no remedy available in the courts. 163 Since the courts have
developed adequate remedies for illegal arrests, resistance was no longer so necessary
as to justify the potential dangers to the arrestee, officer and the public. 164

application of precedent. Examination of the cases does not seem to bear out their
argument, however.
160
Regarding the efficacy of civil remedies, the authors cite a study by Wilson, Police
Arrest Privileges in A Free Society: A Plea for Modernization, 51 J. Crim. L.,
Criminology, and Pol. Sci. 395 91960). Id., at 47. Regarding the adequacy of criminal
penalties, the authors cite a study by Foote, Tort Remedies for Police Violations of
Individual Rights, 39 Minn. L. Rev. 493 (1955).
161
Smith, supra note 120. Smith echoed many of the arguments previously stated, that
jails are no longer death traps, that it is primarily the guilty who resist unlawful
arrests, and that police are better trained in both how to arrest and the rules of arrest,
so that the common law right is no longer desirable as a remedy to official misconduct.
Finally, Smith repeats the argument of previous commentators that the appropriate
means of addressing an unlawful arrest is with a civil action or criminal sanction. Yet
the author admits that both of these after the fact remedies are inadequatepolice
officers are often judgement proof, and in any event juries are reluctant to find against
the police in such cases. Id. at 121, 123-124., 128.
162
Id., at 121-123.
163
Id.
164
Id.
39

Smith also made several original arguments in support of eliminating the right to
resist unlawful arrest. First, he noted the long-standing problem with the common law
rule that a law-abiding citizen who might seek to resist in good faith has no sound
method by which to gauge the legality of his conduct.165 While accurate, this criticism
misses the reason behind the rule, which was to provide individuals with the choice to
resist if they believed that the arrest was an abuse of police power. If they were wrong,
they paid the penalty, for they had no right to resist a lawful arrest, and no court has
allowed the defense of subjective belief in the illegality of the arrest. Second, Smith
observed that the right to resist an unlawful arrest creates a contretemps of two
legally permissive uses of force166these being the citizens right to resist an unlawful
arrest and the police officers right (and duty) to use the force necessary to make an
arrest. Smith incorrectly attributes legality to the actions of the police officer. An
officers right to use whatever force is reasonable to make an arrest only applies when
the arrest is lawful, and an officer has no right to use any amount of force to make an
unlawful arrest. If the arrest is unlawful, only the arrestee has the right to use any
amount of force under the common law. Third, Smith argued that the right to resist
arrest is an artificial right167 because it fails to achieve its purpose of preventing the
arrest, instead in getting [the arrestee] into more trouble than he ever would have
Id., at 124-125.
166
Id., at 125.
167
Id.
165

40

encountered had he not resisted in the first place. 168 Here, Smith ignores the original
justification for the common law rightto allow a person provoked by an unlawful
arrest to have a defense to the charge of resisting arrest. 169 Without this defense, a
person who resists an illegal arrest is subject to punishment not for the original alleged
offense, but for challenging, even correctly, the authority of the officer to make the
arrest.170
As the movement towards abrogating the right continued, the courts began to
add new doctrine which reflected original, and often disturbing, arguments unforeseen
by academic commentators. In particular, two cases from 1969 identified novel
justifications for the termination of the right to resist unlawful arrest: People v. Curtis171
and Miller v. State.172 Curtis, a California case, concerned the unlawful arrest of an
African-American man wearing a white shirt and tan pants, which matched a general
description of a burglary suspect in the area; rather than interrogate Curtis to determine
his previous whereabouts or his reason for walking in the neighborhood at night (he
Id.
The Queen v. Tooley, 93 Eng. Rep. 349 (K.B. 1710).
170
Smith also argues that the case law on resistance to unlawful arrest is untidy and
confusing and is a jumble of unlawful arrest, self-defense, and provocation.
Eliminating the right to remove arrest, Smith argued, would provide the case law with
greater clarity and consistency. This argument fails because the lack of consistency in
the law on unlawful arrest has resulted because modern courts struggle to justify the
right in some way other than its original justification, provocation. Smith, supra note
120, at 127.
171
450 P.2d 33 (Cal. 1969).
172
462 P.2d 421 (Alaska, 1969).
168
169

41

lived a block away), the officer arrested him immediately and without explanation.
Curtis resisted, was overpowered, and, while acquitted of the burglary charge, was
convicted on the felony charge of battery on a peace officer engaged in the
performance of his duties. In Curtis, the California Supreme Court cited a state law
adopted a decade earlier which had terminated the right to resist, but then dismissed
Curtis conviction for battery on a peace officer, arguing that, since an unlawful arrest
lay outside an officers duties, the charge should have been simple battery. 173
Curtis is not so much remarkable for the courts attempt to mitigate the charge of
battery against a police officer, as for the policy reasons which the court provided in
upholding Californias law. Because the California legislature clearly had the power to
abandon the common law rule by statute, as they had done, the court had no reason to
justify the new rule. But the Curtis court moved beyond simple deference to justify the
abandonment of the right because of how police had become more omniscient and
more capable in their use of lethal force:
In a day when police are armed with lethal and chemical weapons, and
possess scientific communication and detection devices readily available
for use, it has become highly unlikely that a suspect, using reasonable

173

450 P.2d at 37-38.

42

force, can escape from or effectively deter an arrest whether lawful or

unlawful. 174
The court then articulated what can only be labeled a declaration of surrender before
the police state:
the state, in deleting the right to resist, has not actually altered or
diminished the remedies available against the illegality of an arrest
without probable cause; it has merely required a person to submit peacefully to
the inevitable and to pursue his available remedies through the orderly
judicial process.175
Curtis thus ratifies the legislatures deprivation of individuals choice to resist arrest on
the grounds that such a choice simply no longer exists and that in modern America we
have no place to hide from the police and no hope of overpowering them. Resisting
arrest is not so much normatively wrong as it is simply impossible; resistance is futile.
The second case, Miller v. State, came from Alaska, where it was used to
judicially abrogate the common law rule. Miller involved a traffic stop which quickly
escalated into a serious incident, with Miller armed with a bayonet attempting to cut the
officer and the officer with his revolver drawn. Ultimately Millers friend convinced him
to drop the bayonet, and he was arrested, charged with, and convicted of, stabbing at

174
175

The quotation is taken from People v. Curtis, 450 P.2d 33, 36-37 .
Id. (Emphasis added).
43

another with intent to wound. 176 Although it found Millers arrest to be lawful, the
Alaska court also decided to address the question of whether the right to resist
unlawful arrest existed within that state. Ironically for a state which encompasses more
wilderness than any other, Justice Connors opinion for the court based much of its
argument on the idea that civilization existed to end individuals need for, and use of,
force to defend ones proper interests:
The control of mans destructive and aggressive impulses is one of the
great unsolved problems of our society. 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 reexamined.177
Miller thus draws upon the Lockean theory that justice is impossible without a state
that can impose a decision with impartiality, because all persons are prone to favor
themselves in any dispute and to respond with greater force than is necessary. 178 This
theory is accompanied in Miller by the concern, appropriate to the case, that each party
avoid the use of force, but places primary responsibility for avoiding force on the
arrestee:

462 P.2d 421 at 422-423.

177
Id. at 426.
178
John Locke, Second Treatise of Government, Chapter 2.
176

44

Because officers will normally overcome resistance with necessary force,

the danger of escalating violence between the officer and the arrestee is
great. What begins as an illegal misdemeanor arrest may culminate in
serious bodily harm or death.179
This policy argument is common to many (maybe most) of the cases abrogating the
right to resist unlawful arrest; in a 1998 case, the Wisconsin Supreme Court argued that
terminating the right was necessary as a way to deescalate violence. 180 But while it
focuses on preventing violence and injury, it fundamentally mistakes the use of police
force in effecting arrests for the creation of civilizing order. While lawful arrests are
necessary to restore order, unlawful arrests are themselves a threat to law and justice.
This would be placed in sharper relief as academic commentators began to understand
the right through its role in challenging arbitrary, and clearly unconstitutional,
authority.181
V. The Civil Rights Movement, Disobedience of Unlawful Authority and the Right
to Resist
The stakes involved in the increasingly statist discourse around the right to resist
became even more apparent as the civil rights movement gained momentum during the
1950s and 1960s, an increasing number and variety of public protests against

462 P.2d, at 426.

180
State v. Hobson, 577 N.W.2d 286 (Wis., 1998).
181
See Chevigny, supra note 66.
179

45

segregation took place, including public marches and rallies, picketing of segregated
facilities, and sit-ins.182 While statistics on the number of illegal arrests and number of
charges of resisting arrest during this time period are not available, 183 the civil rights
movement and other protest movements, such as that opposing the Vietnam War, led to
an increase in the number of cases involving unlawful arrests and attempts by the
arrestee to resist arrest. Often, these demonstrations were lawful, as when protestors
marched pursuant to a permit. However, even law-abiding protestors were often
arrested by hostile police officers, 184 and the protestors sometimes resisted arrest. Many
of these arrests were deemed unlawful by courts for a variety of reasons, 185 and the
1960s saw a sudden increase in the number of appellate cases concerning individuals
resisting unlawful arrest.186
For a discussion of the civil rights movement, see generally, David J. Garrow, Protest at
Selma (1995).
183
There are no statistics available concerning the number of arrests for resisting arrest,
but the arrest overall went up. If the number of unlawful arrest is related to number of
arrests, this would indicate number of unlawful arrests also increased. For a discussion
of the frequency of mistaken arrests and convictions, see Ronald C. Huff, Arye Rattner,
and Edward Sagarin, Guilty Until Proven Innocent: Wrongful Conviction and Public
Policy. 32 Crime and Delinq. 518 (1986).
184
For example, city officials in Birmingham, Alabama refused to issue a permit for a
civil rights march in April, 1963. When the marchers sought a permit form the city
officials, Police Commissioner Eugene Bull Connor said No, you will not get a
permit in Birmingham, Alabama. I will picket you over to the City Jail. Walker v.
Birmingham, 388 U.S. 307, 317 note 9 (1967). The march then took place without the
requisite permits, and the Police Commissioner ordered the arrest of the demonstrators.
185
See, e.g. Wainwright v. New Orleans, 392 U.S. 598 (1967).
186
For instance, several courts overturned the common law right to resist arrest during
this time period. See, e.g., State v. Koonce, 214 A.2d 428 (New Jersey 1965). .
182

46

Several of the law review articles published between 1965 and 1970 prefaced
their discussion of the right to resist arrest with a discussion of the civil rights
movement and the methods protestors used to resist police attempts to end the
demonstrations, with one calling for the rules abandonment anyway. 187 Against the
chorus calling for elimination of the right to resist, Paul Chevigny, a staff attorney for
the New York Civil Liberties Union, wrote the first law review article advocating
retention of the common law right to resist an unlawful arrest in 1969. 188 Chevigny was
inspired to write on the subject by his reaction to the arrest of civil rights demonstrators
and the Supreme Court decision in Wainwright v. New Orleans189 the year before.190
Chevigny rediscovered the English courts justification of the right to resist an illegal
arrest as based on the provocation inherent in the unlawful arrest attempt and noted
that the common law courts treated the illegal arrest as a trespass against the person of
the arrestee.191 He also found that nothing in the courts opinions referred to the
condition of the jails at the time, or the lack of procedural safeguards, or any of the
other justifications for the rule that have been offered by modern writers. 192 Chevigny
also noted that the common law courts did not create an unlimited right to resist arrest,

See, e.g. Hochanadel and Stege, supra note 150.

Chevigny, supra note 66.
189
392 U.S. 598 (1968).
190
Chevigny, supra note 66, at 1128-1129.
191
Id., at 1129.
192
Id., at 1130-1131.
187
188

47

but instead limited the right to arrests . . . of the most outrageous kind, 193 those which
were simply arbitrary assertions of authority.194
Having built a useable history, Chevigny began his major project, evaluating
modern scholarly and judicial criticism of the common law rule. 195 Noting that the right
to resist an unlawful arrest had been eliminated by the legislature in six states as of
1969,196 and that [r]ecognition of the right has waned in the face of almost universal
criticism,197 Chevigny described modern criticism of the right as based on the view that
the common law rule is a vestige of a more brutal age when society could tolerate
street altercations between officers and citizens and when a citizen deprived of
constitutional rights had no effective redress. 198 This, Chevigny argued, is a
misinterpretation of the right which [d]oes not exist to encourage citizens to resist, but
rather to protect those provoked into resistance by unlawful arrests.199

Id., at 1131.
Id.
195
Id., at 1132-1138. Chevigny notes that [t]he decline of the common law rule dates at
least from Professor Warners attack in the forties. Id., at 1132-1133. He also notes that
the American Law Institute rejected the common law rule after a spirited debate. Id.,
at 1132.
196
The states are cited as follows: Cal. Penal Code Sec. 834(a) (West Supp. 1968); Del.
Code Ann. Tit. 11, Sec. 1905 (1951); N.H. Rev. Stat. Ann. Sec. 594.5 (1955); Ill. Ann. Stat.
ch. 38, Sec. 7-7 (Smith-Hurd 1961); N.Y. Penal Law Sec. 35.27 (McKinney Supp. 1992);
R.I. Gen. Laws Sec. 12-7-10 (1941). Id., at 1133, n. 30.
197
Id., at 1133.
198
Id.
199
Id., at 1133-1134.
193
194

48

Chevigny also challenged critics argument that the existence of remedies such as
the availability of bail, 200 procedural safeguards such as the probable cause hearing, 201
administrative controls over police misconduct,202 and civil actions for injunction or
money damages,203 indicate that constituted authority is now sufficiently civilized that
citizens should deal with it peacefully. 204 Chevigny argued that these remedies are
insufficient to protect the rights of citizens unlawfully arrested, 205 and that such
arguments do not account for the problem of provocation created by the illegal arrest. 206
Instead, the real question should be whether an individual should face criminal charges
when forcefully defending his or her rights during an unlawful arrest:

Id., at 1134. Chevigny notes that while bail is available to many more individuals
than it was at common law, it is still not universal, and many defendants cannot afford
even the lowest bail amount.
201
Id., at 1134-1135. Chevigny notes that such safeguards may exist in name only, as
defendants often lack the proof necessary to establish a constitutional violation, and
police officers may not testify truthfully.
202
Id., at 1135. Chevigny notes that administrative remedies have not proven adequate
in controlling police abuses.
203
Chevigny, supra note 66, at 1135-1136. Chevigny notes that injunctions are rarely
granted against the police, and that money damages are difficult to obtain.
204
Id., at 1136.
205
Id.
206
The decision to resist is the work of the moment rather than the result of carefully
considered alternatives. The real question is whether for this act of resistance the
citizen ought to be convicted of a crime. Id., at 1137. Chevigny points out that the
common law rule provides no protection for those who resist a lawful arrest, and no
protection for those who resist what they incorrectly perceive to be an unlawful arrest.
A citizen who chooses to resist acts at their peril in this regard. Id.
200

49

The freedom to refuse to obey a patently unlawful arrest is essential to the

integrity of a government which purports to be one of laws, and not of
men. Unless it is desirable to kill the impulse to resist arbitrary authority,
the rule that such an arrest is a provocation to resist must remain
fundamental.207
In this view, the right to resist unlawful arrest not only serves as a remedy to
police abuse, it is a fundamental element in remaining a free nation.
According to Chevigny, the freedom to resist arbitrary authority derives from the
United States Constitution as well as English common law. There were two possible
constitutional bases for the right to resist, according to Chevigny. 208 The first is the
vindication of certain constitutional rights.209 Chevigny argued that a person should
not be required to submit to an arrest when he is exercising his First Amendment rights,
relying on such examples as the unlawful arrests of civil rights and antiwar
demonstrators during the 1960s.210 Chevignys second constitutional argument for a
right to resist an unlawful arrest is due process. Under this theory, due process is
implicated when an individual resists an unlawful arrest because the Supreme Court

Id., at 1147.
Id., at 1138-1139. Another possible constitutional basis for the right to resist an
unlawful arrest, not mentioned by Chevigny, is the Fourth Amendment. See, e.g.,
Lerblance, supra note 52.
209
Id., at 1138.
210
Id.
207
208

50

has . . . acknowledged that due process protects an individual from being punished for
violating an arbitrary police order, 211 and an unlawful arrest is similar to an arbitrary
police order.212 Due process is also implicated, according to Chevigny, when police
officers provoke resistance by making a patently unlawful arrest, because such conduct
is analogous to entrapment, and the state should not be permitted to prosecute a citizen
for conduct primarily caused by state actors outrageous conduct. 213
Chevigny acknowledged that not all forms of resistance should be countenanced.
Rather, he recommended that only reasonable resistance to an unlawful arrest be
judicially recognized. 214 Reasonable resistance may exist when (1) there is no underlying
offense; (2) the officer believed that the complaint was false; (3) there was personal
animosity between the police officer and the defendant; and (4) and the individual has
been repeatedly arrested. 215 Chevignys argument, still the strongest scholarly216
statement supporting the right to resist an unlawful arrest, rediscovered the rules
historic purpose of preventing the state using its agents unlawful and provocative
conduct to prosecute someone for a crime that they would not otherwise committed.
Id., at 1139 (citing Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965); Wright v.
Georgia, 373 U.S. 284 (1963)).
212
Chevigny, supra note 66, at 1139.
213
Id.
214
Id.
215
Id., at 1147-1149.
216
For examples of equally strong judicial statements in favor of the common law rule,
see State v. Valentine, 935 P.2d 1294, 1306-1320 (Wash. 1997) (Sanders, J., dissenting);
State v. Hobson, 577 N.W.2d 285, 838-842 (Wis. 1998) (Abrahamson, C.J., concurring).
211

51

The reemergence of aggressive policing tactics, including repeated arrests for minor
offenses, and the continuing animosity between police and minority communities,
create the potential for many such encounters between law enforcement and
individuals.217
VI. The Abrogation of the Right to Resist from 1970 to the Present
While academic commentators had presaged and largely driven the move away
from the right to resist unlawful arrest from the 1920s through the 1960s, the initiative
for abrogation of the right clearly shifted from academe to state legislatures and courts
during the 1970s and throughout the 1980s and 1990s. Several law review articles
discussing the growing trend towards abrogation of the common law rule appeared
during the 1970s and 1980s,218 and while they repeated the arguments already
presented by prior critics,219 these articles opposed the trend towards elimination of the
common law rule. 220 Somewhat removed from the violence and turmoil of the civil
See State v. Valentine discussion, infra notes 223-231 and text.
These include: James B. Lindsey, Comment, The Right to Resist Unlawful Arrest, 10
Akron L. Rev. 171 (1976); Note, The Right to Resist Unlawful Arrest, 38 La. L. Rev. 840
(1978); James Moskal, Note, Justification, Excuse, and Resisting Unlawful Arrest, 33
Wayne L. Rev. 1471 (1987); Hearne, supra note 63; Lerblance, supra note 52; Engel, supra
note 37;.
219
See, e.g., Lindsey, supra note 218, at 174-176 (arguing that elimination of the right
leaves citizens without an adequate remedy); Lerblance, supra note 52 (arguing that
elimination of the right to resist is an overreaction, and suggesting a compromise
position premised on the reasonableness of the circumstances).
220
See, e.g., Lindsey, supra note 218, (arguing for modification of the rule to allow
resistance when it is an uncalculated reaction); Hearne, supra note 63 (arguing for
modification of the rule to allow resistance when there is reasonable provocation);
217
218

52

rights and anti-war movements of 1960s, these authors were more receptive to
arguments that the common law rule remained vital, if in modified form. 221 In the
1990s, two student notes and one law review articles have also been published
discussing recent cases in their respective jurisdictions. 222
The justification of greater public safety and the argument that modern due
process rights rendered the right to resist less important continued from the judicial
decisions of the 1960s through most of the decisions during the 1970s, 1980s and 1990s.
However, two cases decided in the last few years have brought into question the trend
towards the rights abrogation. While both decisions resulted in the abrogation of the
right in their respective jurisdictions, strong opinions from justices dissenting against
the termination of the right posed important questions for the continuation of the trend
Hughes, supra note 83 (arguing for retention of the common law rule).
221
See, e.g., Lindsey, supra note 218, at 183-184.
222
These articles include: F. Todd Lowell, CommentWhen Should Force Directed
Against A Police Officer Be Justified Under the Maine Criminal Code?Toward A
Coherent Theory of Law Enforcement Under the Codes Justification Provision, 55
Maine L. Rev. 385 (1993); Alexandra W. Tauson, Recent Decision--Criminal Law
Resisting ArrestUnlawful ArrestThe Pennsylvania Supreme Court Held That
Resistance to an Arrest Found to be Unlawful Cannot Result in A Conviction for
Resisting Arrest But Can Result in Conviction for Aggravated Assault, 55 Duquesne L.
Rev. 755 (1996). Both of these briefly recite the development and recent erosion of the
rule, focusing on the particular facts of the case before them. The third article is written
by a former prosecutor, and focuses on a recent case from Washington involving
particularly egregious police activity. Andrew P. Wright, Resisting Unlawful Arrests:
Inviting Anarchy or Protecting Individual Freedom? 55 Drake L. Rev. 383 (1997)
(arguing that the trend towards abrogation of the common law rule is unfortunate, and
suggesting a compromise position premised on a theory of self-defense). The case in
question is State v. Valentine, 935 P.2d 1294 (Wash. 1997), discussed below.
53

towards the elimination of the right. Those questions are directly related to the function
of the police in contemporary society and the forms of abuse which create new
justifications for a return to the doctrine that an unlawful arrest constitutes provocation.
A. State v. Valentine
A 1997 Washington Supreme Court case, State v. Valentine, poses the
contemporary problems of civility policing, racial harassment, and resisting an arrest
made in bad faith in its starkest terms.223 Ronald Valentine, an African-American living
in Spokane, had had several recent encounters with the Spokane Police Department
when he was pulled over. After sighting Valentine wearing a black coat on a street
corner, an officer had radioed about a suspicious person. Another officer, named
Moore, responded, and, after Valentine had driven away in his car, stopped Valentine
for failing to signal for a turn. Officer Moore recognized Valentine at this point as a
person he had twice previously cited for failure to display a front license plate and
identified Valentine over the radio, causing several other squad cars and a police
motorcycle to converge on the scene, so that the entire downtown police force was in
attendance.224 Police testimony differed from that of Valentine regarding what next
transpired, but Valentine may have been less than gracious about being stopped again.
What is clear is that Valentine was badly hurt in a physical encounter with the police,

223
224

935 P.2d 1294 (Wash. 1997).

Valentine at 1309 (Sanders, dissenting).
54

sustained multiple injuries, and was subdued with a carotid (choke) hold. The police
justification for his arrest was that Valentine had refused to sign the citation for failure
to signal, but Valentine testified that he had not so refused; instead, he signed the
citation when it was presented to him after he regained consciousness in the hospital
and was never charged with refusing to sign the citation. 225 It was also revealed at
trial that several of the offices involved in this altercation had encountered Valentine in
a bar the night before and told him at that time: we are going to get you. Valentine
was the subject of some discussion at roll call the next morning, the day of his arrest.
Charged with third degree assault, Valentine claimed the right to resist arrest and asked
for a jury instruction that A person arrested without lawful authority may forcibly
resist that arrest so long as the force is no more than is necessary as defined elsewhere
in these instructions.226 However, the trial court judge instead instructed the jury that
The use of force to prevent an unlawful arrest which threatens only a loss of freedom,
if you so find, is not reasonable. 227 Ultimately, Valentine was convicted of resisting
what the trial court conceded was an illegal arrest.
In resolving Valentine, the Washington Supreme Court followed the trial court
judge in finding that the right to resist only existed when arrestee reasonably feared

Id.
226
Id. at 1308 (Sanders, dissenting).
227
Id. at 1296.
225

55

bodily harm.228 The distinction between the right to resist when one feared bodily injury
as opposed to the right to resist when one faced only the loss of ones freedom makes
sense only when understood in relation to the Valentine courts adoption of Warners
history of the right, portraying it as an anachronism no longer necessary in an era of
due process rights and sanitary jails. By adopting this history, the Valentine court was
able to claim that the common law rules origins in the defense of provocation
proceeded as well from the lack of due process and decent jail conditions in 17 th century
England: One can also understand why, as the Tooley court said, an unlawful arrest
was a great provocation affecting all people out of compassion... The common law rule
set out in Tooley plainly resulted from conditions that no longer exist. 229 By following
Warners history, the Valentine court transformed Tooley and his fellows from proud
seventeenth century protectors of the rights of Englishmen into modern legal reformers
and social workers, who might have looked the other way if only liberty, rather than
sanitation and the speed of the legal process, were at issue.
This distinction between unlawful arrests which only threaten ones liberty
and those which pose a threat of injury was soundly attacked in the dissent written by
Justice Sanders and joined by Justice Madsen that argued from the premise that only

228
229

Id. at 1304.
Id. at 1301.
56

lawful authority need be respected. Mocking the majoritys emphasis on avoiding

violence, Justice Sanders wrote that it had
opine[d] that the established common law rule has outlived its usefulness
in our brave new world where resistance to unlawful infliction of state
coercive power is not only futile ... but also invites anarchy. Apparently
the majority believes the unlawful use of state force is not anarchy but
order.230
Throughout his dissent, Sanders compared official violence with private violence,
demanding that equal actions be treated equally.
Much of Sanders dissent focused on the facts of the case, adding numerous
details from the testimony of Valentine and others to show a pattern of police
harassment and call into question the officers assertions that he was arrested because
he had refused to sign the citation. In this, he was joined by a concurrence by Justice
Smith that read more like a dissent. Smith wrote that he hoped that
this case will not provide law enforcement officers a license to target a
person as a suspicious subject merely because the person is standing on
a street corner at midday wearing a black coat, to observe the person
dirve away in an automobile and follow the automobile until a turn signal
violation occurs to then stop the person, with the participation of at least
230

Id. at 1307.
57

four police officers, and to engage in a course of conduct which results in

subduing, tackling and handcuffing the person. 231
Smiths approach to the case thus recognized that the arrest was not only unlawful but
part of a pattern of harassment; at the same time, he was unwilling to support the
common law rule for reasons which he did not discuss. Still, Smiths caution regarding
the future of such cases has a certain poignancy in its simultaneous recognition of
police officers capacity to infringe citizens civil rights, while also fearing the
consequences of allowing for a right to resist unlawful arrest.
B. Wisconsin v. Hobson
While Valentine well demonstrates the need for a right to resist stemming from
police harassment, no contemporary case better illustrates the reasons for returning to
the principle of provocation as underlying the right to resist unlawful arrest than
Wisconsin v. Hobson.232 Hobson was charged with obstructing a police officer, resisting
an officer, battery to a police officer, and disorderly conduct, after she refused to allow
an officer to take her five year old son to the police station to be questioned about a
stolen bicycle. The officer summoned three other officers before arresting Hobson for
obstruction; when two officers attempted to handcuff her, she resisted and was knocked
to the ground where she continued to struggle. The charges against Hobson were

231
232

Id. t 1306.
577 N.W.2d 825 (Wis., 1998).
58

dismissed by the trial level judge even before trial, in an opinion which both recognized
the common law right to resist arrest and suggested that that rule was contrary to
contemporary public policy and encouraged dangerous situations for all.
The Wisconsin Supreme Court took up the trial courts suggestion, although only
proactively so that Hobson did not have to face charges. In an opinion by Justice Geske,
the court acknowledged that Wisconsin had long recognized the common law rule, but
found that, as a matter of policy, the right to resist should no longer be state law. 233 Not
only did the majority acknowledge the common law rules existence in Wisconsin law,
they also recognized that it was grounded in provocation, relying heavily on Chevignys
article for its history.234 But having taken care of the history of the right, Geskes opinion
turned to a policy argument that began by mentioning the degree to which other states
had abandoned the common law rule, and then found the rationale for this
abandonment in the rise of due process protections, quoting from Warners work and
the California Supreme Courts argument in People v. Curtis that police capacity for use
of force was so overwhelming as to make resistance futile. 235 The particular conclusion
of the majority was that resistance, even a measured response, 236 would often escalate
into conditions that threatened the safety of both officers and individuals. In its opinion,
Id. at 826.
Id. at 829-830.
235
Id. at 835-836
236
Indeed, the court acknowledged that the characterization of Ms. Hobsons resistance
as a measured response . . . may be apt in this case. Id. at 836.
233
234

59

the majority also rejected the formulation relied upon by the trial court judge, who
would have allowed for only reasonable force to be used in resisting arrest.
Chief Justice Shirley Abrahamsons concurrence in the result in Hobson mostly
consisted of her dissent against Geskes policy argument. Abrahamson largely followed
the lower courts opinion that the officers conduct was clearly beyond the proper
bounds of police procedure, quoting the lower courts opinion that Nothing would
permit the officer to take a five-year-old child to a police station for a junior version of
the third degree.237 And she noted the lower courts belief that the officers took the
child into custody because they were hacked off because she wouldnt let them
interview the child at her home.238 The lower courts opinion furthermore portrayed
the situation as a classic case of provocation, writing that it is difficult to imagine a
mother who would allow her five-year-old son to be dragged off to the station house
and subjected to an illegal interrogation.239
However, Abrahamsons most direct challenge to the majority opinion lay in her
refutation of the claim that the right to resist necessarily involves an escalation of
violence. Closely relying on the lower courts findings, Abrahamson focused on how
measured Hobsons resistance had been, occurring entirely through her flailing about as

Id. at 839.
238
Id.
239
Id. at 842.
237

60

the officers took her to the ground.240 Hobson had not threatened officers with
violence, had not pursued officers in any way, and, according to the lower court, had
been assaulted by the police, rather than assaulting the police. By closely following the
entire fact situation, Abrahamson was not only able to portray Hobson as the victim, but
also to make the case that the right to resist was important as a proactive right - as the
reactive remedies cited as justifying abandonment of the right would have done
nothing to halt the greatest threat in the situation, the proposed interrogation of
Hobsons five-year-old son at the station.241 It is for such police provocations that the
right to resist was created and for which it should be revived.
VII. The Applicability of the Common Law Rule to Modern Society
It is undisputed that police work is a dangerous occupation, and that police
officers are not infrequently assaulted by person resisting arrest. It is also clear that
police have been shown to be at times predisposed to using violence to make an
arrest.242 Recent research suggests that police officers may add the charge of resisting
arrest as a means of proactively protecting themselves from later accusations of police

Id. at 840.
Id. at 841.
242
Jerome H. Skolnick, Justice Without Trial (1966); William Westley, Violence and the
Police (1970).
240
241

61

brutality.243 Given these findings, the movement to eliminate the right to resist an
unlawful arrest seems overly solicitous of the interests of law enforcement.
The frequency with which individuals assault police, and the rate at which such
individuals are charged with resisting arrest becomes even more important when
examining the abrogation of the right to resist in the context of such police tactics as
civility policing and order maintenance. By focusing on small quality of life
infractions, police attempt to send a message that disorder will not be tolerated, and
that they, and not the criminals, control the streets. It is not so much clear that such
tactics maintain order as that they maintain police, and state, authority, and it is
similarly problematic to assume that all of those arrests which result from the
enforcement of these norms were directly connected to imminent criminal activity.
Because the charge of resisting arrest can be used to substitute for the absence of
observable criminal behavior by individuals considered suspicious by the police, the
right to resist unlawful arrest is today even more important as a check on police abuse
of authority.
The way in which modern police organizations may conflate their own control
over street life with crime control is well illustrated in the recent Supreme Court
decision in City of Chicago v. Morales,244 which involved an ordinance requiring
John Kavanagh, The Occurrence of Resisting Arrest in Arrest Encounters: A Study of
Police-Citizen Violence, 22 Criminal Justice Review 16 (1997).
244
City of Chicago v Morales, 119 S.Ct. 1849 (1999).
243

62

criminal street gang members and persons associating with gang members to
disperse when so ordered by a police officer who has found them loitering in a public
place with no apparent purpose.245 This ordinance provided police officers with
almost unlimited discretion to control any persons about on the streets of Chicago.
form of preventive police practice. The Chicago scheme was struck down by the
Supreme Court on grounds of vagueness; Justice Stewart writing that a law cannot be
constitutional if its violation depends upon whether or not a policeman is annoyed. 246
The ordinance did not criminalize loitering itself, but rather the failure to disperse
when so ordered by the officer, thus allowing police officers to regulate the public
presence of those they consider undesirable.
While the Court decided Morales by a margin of six to three, its reasoning was
contained in a collection of concurring and dissenting opinions, with no entire opinion
commanding a majority. Justice Stevens delivered what came closest to a majority
opinion in arguing that the Chicago ordinance was unconstitutionally vague because it
did not provide sufficient notice to individuals that their activities might result in a
dispersal order, as they could not know when they would not appear to have an
apparent purpose to a police officer247 and because the ordinance gave too much
discretion to officers in its enforcement. Other justices concurred in opinions
Id., at 1854.
246
Id..
247
Id. at 1859.
245

63

emphasizing the problem of vagueness,248 lack of proper notice,249 and protesting the
idea that the order to disperse was only a minor restriction on individual freedom. 250
The practices exemplified in Morales have the capacity for racial discrimination,
a serious concern which continues to affect both the politics of resisting arrest laws and
the practice of charging individuals with resisting arrest. The last time such issues came
to the fore was the 1960s and early 1970s. Several cases which came to the United States
Supreme Court concerned use of such charges to harass African-Americans who
insisted on their rights or did not pay traditional deference to the police. One breach of
the peace case, Wright v. Georgia, involved a group of African-Americans who were
playing basketball in a segregated park when they were told to leave by police officers.
After one of the players asked, by what authority?, they were arrested for breach of
the peace, although there was no evidence that they had caused any disruption. 251
Another form of police harassment often visited African-Americans in the South
was the enforcement of vagrancy ordinances, which required an individual to be
properly employed, and which seemingly allowed arrest simply on the basis of ones
reputation for dishonesty. In one form, such ordinances might allow for the arrest of
suspicious persons who wanders about the streets or other public ways or who is

Id., at 1863-1865 (concurring opinion of OConnor, J., joined by Breyer, J.).

Id., at 1865 (concurring opinion of Kennedy, J.).
250
Id., at 1865-1867 (concurring opinion of Breyer, J.).
251
Wright v. Georgia, 373 U.S. 284 at 286 (1963).
248
249

64

abroad at late or unusual house in the night without any visible or lawful business and
who does not give satisfactory account of himself, in the words in the words of an
ordinance struck down by the Supreme Court in 1971. 252 Invalidated by the Supreme
Court in Papachristou v. Jacksonville,253 vagrancy laws had the dual purpose of crime
control, by making persons account for their presence and activities, and providing a
cheap labor supply by criminalizing unemployment. What was most problematic for
the Court was that [f]uture criminality ... is the common justification for the presence
of vagrancy statutes.254
Proactive policing is linked to resisting arrest because of the greater number of
opportunities for police-civilian interaction and because individuals are more likely to
take offense for what they may view as harassment unconnected to any particular or
serious offense. When resistance to an illegal arrest is made criminal, an initially
unlawful arrest becomes lawful, and an individual may be charged with a crime even
though they committed no crime prior to being provoked by the police. In such a
situations, the police, who already have the advantage in such encounters, have further
incentive to abuse their authority.255

Palmer v. City of Euclid, 402 U.S. 544 (1971).

405 U.S. 156 (1972).
254
Id. at 169.
255
Such a point was made by Justice Douglas in 1968, in his dissent to the per curiam
dismissal of certiorari in Wainwright v. New Orleans, 392 U.S. 598, 614-615 (Douglas, J.,
dissenting).
252
253

65

Many of the cases involving resisting arrest follow incidents where a challenge to
the officers authority has already been transformed into the pretext for an arrest. In
State v. Doe, the New Mexico case abrogating the right to resist arrest, a passenger in a
car stopped for suspicious driving resisted arrest for disorderly conduct after arguing
with the officers in a loud voice.256 In K.G. v. State, a juvenile was charged with
resisting arrest after officers arrested her for open profanity after she had followed
their order to move.257 In State v. Austin, the individual was arrested for disorderly
conduct for uttering an obscenity while pointing to the officers car; he kicked both
officers while being taken into custody and transported to the station. 258 In these cases,
the crime of creating some form of public disorder was, at its root, the offense of giving
offense to police.
It is not only the police who may feel disresepcted during such encounters. The
act of resisting arrest often comes at a time when arrestees are feeling particularly
threatened or disrespected. In an Oklahoma case, one James Sandersfield was so
charged after the police attempted to arrest him for obstructing an officer for standing
closer than police wished while they arrested a friend of his. As Sandersfield was being
handcuffed, he turned and hit the officer, saying If Im going to jail, then I might as

256
257
258

State v. Doe, 583 P.2d 464 (N. M. 1978).

K.G. v. State, 338 So.2d 72 (Fla.App. 1976).
State v. Austin, 381 A.2d 652, 653 (Me. 1978).
66

well as given you a fucking reason.259 In the Louisiana case of Melancon v. Trahan, a
police officer unlawfully arrested an individual for refusing to move on when told to
by officers, and was pushed into wall for his trouble; the confrontation occurred as the
officer and his partner were clearing the streets after a race riot. 260 Under such
circumstances, both police and civilians may be far too quick to act and react.
The issue of police-civilian respect becomes much more complicated in cases
involving race, as demonstrated in one Ohio case. The police were summoned to an
interracial neighborhood quarrel by a white family; after being called motherfucker
and pigs, and being told that if [blacks] had called the police, they wouldnt have got
this much motherfucking police protection, the police attempted to arrest Imogene
Fraley for disorderly conduct. 261 Fraley physically resisted her arrest, and was
subsequently charged with using violence against a police officer. 262 While the Ohio
Supreme Court found that the obscenity used by Fraley was protected by the First
Amendment, making her arrest illegal, they also ruled that the right to resist arrest was
no longer good law in Ohio, citing the Uniform Arrest Act, Model Penal Code, and
statutes and decisions in other states.263 The courts decision may have made sense
within the context of a public policy discussion of violent crime, but it only added fuel
259
260
261
262
263

Sandersfield v. State, 568 P.2d 313 (Okl.Cr. 1977).

Melancon v. Trahan, 645 So.2d 722, 724-725 (La.App. 3 Cir 1994).
City of Columbus v. Fraley, 324 N.E.2d 735, 736 (Ohio 1975).
Id. at 737.
Id., at 739-740.
67

to the problem of community suspicion of police, and possibly furthered the perception
that arbitrary police conduct will go unpunished.
The common law rule originally stood on the theory that police provocation
created anger and a response that was excused by outrageousness of police conduct.
This rationale is particularly applicable today, because of new, aggressive police tactics.
Recognizing the right to resist unlawful arrest as a defense, and constructing that right
so that it only excuses such resistance as resulted from provocation by the police,
protects individuals from outrageous police conduct. Moreover, it does not create an
increased likelihood of resistance because people make the decision to resist an
unlawful arrest in a deliberate and rational manner. Those who resist arrest would most
likely resist arrest regardless of the legal consequences. A return to the common law
rule would only excuse those who are wrongfully arrested who can convince a judge or
jury that the manner of their arrest was sufficient to provoke resistance.
VIII. Conclusion
In his book The Process is the Punishment, Malcolm Feeley observed that due
process revolution of the 1960s did not make the maintenance of ones rights any easier
or less expensive for the many arrestees who wished to merely plea out minor
offenses so that they might return to their work or families far sooner than if they had
insisted on those due process rights. 264 While the Warren Court had pronounced a
264

Feeley, supra note 34.

68

theoretical right to counsel regardless of personal wealth, increased the likelihood that a
defendant who requested jury trial would receive one, and improved expectations
regarding ones treatment throughout the criminal process, these protections did little
to alleviate the deprivation of individuals liberty before their first court appearance.
This interest in personal liberty is not recognized by the modern trend abrogating the
right to resist unlawful arrest. Instead of continuing the common law tradition of
opposing individual rights against state authority, the contemporary law of arrest has
come to value the statist values of order, process and power with little regard for
whether that power is exercised lawfully.
An illegal arrest irreparably deprives citizens of their right to liberty and civil
remedies for those unlawfully arrested are not very effective. First, a person must show
a violation of the individuals Fourth Amendment rights by demonstrating a lack of
probable cause for the arrest.265 Second, the aggrieved individual must overcome the
qualified immunity enjoyed by police officers by demonstrating that the officer violated
a clearly established266 right. Only the most egregious police misconduct falls under
this definition, and it can be difficult to prove to the courts that the abridgement of ones

Probable cause has been defined as when an officer demonstrates that the facts and
circumstances within [his] knowledge and of which [he has] reasonably trustworthy
information [are] sufficient to warrant a prudent [person] in believing that the [suspect]
has committed or was committing an offense. Del Carmen, supra note 12.
266
Anderson v. Creighton, 483 U.S. 635, 640 (1987). This is referred to as the objective
reasonableness standard. Del Carmen, supra note 12.
265

69

liberty is of such great weight to warrant the awarding of damages. Thus, in the 1971
case of Boyle v. Landry, the Supreme Court declined to hold the Illinois law prohibiting
resisting arrest unconstitutional because the original complainants had not been able to
show that they faced irreparable injury. 267
This preference for retroactive vindication of rights is misplaced in the postWarren Court era. The right to resist unlawful arrest comes under suspicion because of
a traditional understanding that the violation of personal integrity should be remedied
after the fact, largely in the form of compensation. 268 This was particularly true in the
case of resisting arrest because the centuries old common-law rule is rooted in the
view that an action by an official in excess of his authority constituted a trespass. 269
Such a trespass has traditionally be considered a tort at law. However, one of the major
changes that underlay the due process revolution of the 1960s was the Warren Courts
emphasis on using proactive measures to prevent the infringement of constitutional
rights, rather than traditional forms of penalties; two of the most notable examples are
the exclusionary rule preventing admission of illegally obtained evidence that was
developed in Mapp v. Ohio,270 and the Miranda rule requiring that a defendant
receive notice of his constitutional rights at the time of arrest, developed in Miranda v.
Boyle v. Landry, 401 U.S. 77 (1971).
David Luban, The Warren Court and the Concept of a Right, 34 Harv. Civ. Rights
Civ. Liberties L. Rev. 7, 13-14 (1999).
269
Lerblance, supra note 52.
270
367 U.S. 643 (1961).
267
268

70

Arizona.271 These two rules have resulted in greater professionalization of police

procedure as well as greater respect for individuals rights.
Such a proactive approach is particularly appropriate for the right to resist
unlawful arrest. However, a strong argument can be made that the right against
unlawful arrest can also be based upon the U. S. Constitution. This argument is largely
based upon the Fourth Amendments prohibition of unreasonable searches and
seizures. The Fourth Amendment was mentioned as a source of the right to resist
arrest in Chief Justice Warrens dissent in Wainwright v. New Orleans, although he did
not fully develop the argument.272 However, in the Utah case of State v. Bradshaw, that
states Supreme Court found that the application of laws prohibiting resisting arrest to
those resisting unlawful arrests is in violation of both the Utah and United States
Constitutions . . . in that it permits and authorizes an arrest without probable cause and
with lawful basis for the arrest.273
The public nature of any arrests later found to be unlawful has weakened this
arguments application in the past. In State v. Ramsdell, the Rhode Island Supreme
Court argued that resistance to an illegal arrest should not be protected because the
essential needs of public safety demand a promote police inquiry into any suspicious or

377 U.S. 201 (1966).

392 U.S. 598, at 603-608 (Warren, C.J., dissenting).
273
State v. Bradshaw, 54 P.2d 800, 801 (Utah 1975). Bradshaw appears to have been
overturned in State v. Gardiner, 814 P.2d 568 (Utah 1991).
271
272

71

unusual street activity. It is not only the right but the duty of police officers to
investigate suspicious behavior both to prevent crime and to apprehend offenders. 274
Such arguments typically cite Terry v. Ohio, the Supreme Court case authorizing
investigatory stops when police suspect an individual but lack probable cause for an
arrest or a search.275
But Terry v. Ohio depends on a distinction between ones expectation of privacy
at home or in other private places and ones expectation of privacy in a public place.
While such a distinction is logical and appropriate when applied to searches, it should
not apply to the seizure of ones person. Unfortunately, where the courts have
recognized the right to resist unlawful arrest as a form of the right against unreasonable
seizures, they have largely done so in a manner that follows the law of searches. Thus,
in State v. Gallagher, a Connecticut court recognized the right to resist an unlawful
entry, but not the right to resist arrest,. 276 Officers arrested Gallagher after he refused to
leave his house for further questioning about a neighborhood dispute; both Gallagher
and his wife were then involved in fisticuffs with the police. While the Connecticut
Supreme Court ruled that a state statute can only be read as abrogating the common
law rule,277 they decided to continue to adhere to the common law view that there are

State v. Ramsdell, 285 A.2d 399, 402 (1971).

392 U.S. 1 (1968).
276
465 A.2d 323 (Conn., 1983).
277
465 A.2d 323 at 327.
274
275

72

circumstances where unlawful warrantless intrusion into the home creates a privilege to
resist, and that punishment of such resistance is therefore improper. 278
This view of the right against unreasonable seizure as tied to place was reiterated
in Casselman v. State, an Indiana case, where the defendant resisted a civil arrest for
failure to appear at bankruptcy proceedings; Casselman had simply closed his door
when informed by the sheriffs deputy of the reason for his visit. The court found that,
although the officer had a proper warrant, civil warrants of attachment did not
authorize officers to interfere unlawfully with a citizens right to be secure in his
home.279 Moreover, the court in Casselman relied in part of the provocation justification
for the right to resist, declaring that the more patently unlawful the intrusion, the more
excusable the resistance becomes.280 Casselman unfortunately privileges the protection
of place over that of personal security from unlawful police conduct; in all of these cases
the traditional prerogatives underlying the Fourth Amendment are applied to the right
against seizure as if it were dependent on the sort of expectation of privacy which
underlies the law of searches.
The biggest obstacle to basing the right to resist on the principle of probable
cause is judicial deference to police authority, which appears to be rooted in some form
of institutional comity. In United States v. Heliczer, the Court of Appeals for the Second
465 A.2d 323 at 328.
279
Casselman v. State, 472 N.E.2d 1310, 1318 (Ind.App. 3 Dist. 1985).
280
Id., at 1317.
278

73

Circuit defined police authority in a manner contrary to the common law tradition,
declaring that an officer is engaged in the performance of official duties so long as [h]e
is simply acting with the scope of what the agent is employed to do. The test is whether
the agent is acting within that compass or is engaging in a personal frolic of his own. 281
Heliczer has had a wide impact, and has been relied upon by many courts to avoid
determinations regarding whether arrests are lawful or not, so long as police actions
were job related. 282 Under this definition, authority follows the badge, not the law, with
judicial review of the provocativeness and/or lawlessness of police actions largely
foreclosed.
Having authority follow the badge, rather than the law has important
consequences for how courts understand the right to resist as related to the defense of
provocation; this is well-illustrated in State v. Wick, where Minnesotas Supreme Court
opined that while a defendant would have a right to resist an officer in order to defend
himself or another against unjustified bodily attack, assaultive conduct is not justifiable
solely on the ground that the officers are violating the defendants fourth amendment
rights or on the ground that the defendant believes that the officers are violating his
rights.283 Individuals Fourth Amendment rights, in other words, are not worth

United States v. Heliczer, 373 F.2d 241, 245 (2d Cir. 1967).
282
Lerblance, supra note 52, at 674.
283
State v. Wick , 331 N.W.2d 769, 771 (Minn. 1983).
281

74

fighting for, and are only worth litigation as liberty is less important than bodily
integrity.
This a consequence of the modern conflation of the right to resist with the right
of self-defense. Illegal arrest is a form of battery (or assault, depending on the
jurisdiction) and the tort of false imprisonment. The seizure of a person by an officer
without legal justification is a serious deprivation of personal liberty and the right of
privacy. And the common law right to resist was premised on defense, that is, an
officer in making an unlawful arrest is an attacker who can be reasonable resisted like
any other attacker.284 The dissent in State v. Valentine,285 notes that, in Washington at
least, the people retain such rights as the right to use force to defend property against
trespass and invasion, and a right to respond with force no matter how reasonable
flight may be when assaulted while conducting oneself lawfully. 286 Such different rules
for state and citizen violates any theory of popular sovereignty and political equality,
and those who violate their public trust by stepping beyond the boundaries of their
lawful authority are privileged to become the usurping masters of the public there were
originally entrusted to serve.287

Lerblance, supra note 52, at 681.

935 P.2d 1294, at 1312 (Sanders, J., dissenting).
286
Id., at 1318.
287
Id., at 1307.
284
285

75

Finally, the abrogation of the right to resist unlawful arrest substitutes reliance on
the courts for personal autonomy, requiring even greater faith in our legal institutions.
This may be difficult for some to stomach because, as Justice Sanders wrote in his
dissent in People v. Valentine: When government agents commit assault and battery
against the very citizens they are sworn to protect, the government is no longer our
friend: it is our dangerous enemy.288

288

Id. at 1312.
76