Pixiq

b) This is a teaching point! Anyone devoted to the cause of freedom would dig through and find the case!

You say you don't want to be spoon fed, but you keep expecting me to just search it for you and give you a direct link.

SpoonFed for you.

Your Right of Defense Against Unlawful Arrest

“Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”

“An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. lf the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter.” Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.

“When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justified.” Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.

“These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence.” Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903.

“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery.” (State v. Robinson, 145 ME. 77, 72 ATL. 260).

“Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense.” (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).

“One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance.” (Adams v. State, 121 Ga. 16, 48 S.E. 910).

“Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that ‘a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation.’ There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed party be a minority. Story concluded, ‘If there be any remedy at all ... it is a remedy never provided for by human institutions.’ That was the ‘ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.’” (From Mutiny on the Amistad by Howard Jones, Oxford University Press, 1987, an account of the reading of the decision in the case by Justice Joseph Story of the Supreme Court.

As for grounds for arrest: “The carrying of arms in a quiet, peaceable, and orderly manner, concealed on or about the person, is not a breach of the peace. Nor does such an act of itself, lead to a breach of the peace.” (Wharton’s Criminal and Civil Procedure, 12th Ed., Vol.2: Judy v. Lashley, 5 W. Va. 628, 41 S.E. 197)

Discarted,

I just want to say that regardless of everyone's personal views, this has been a great discussion, civil and free of invective. Not always the case :)

A couple of points:

About the cases you cite. Jury Trials don't set judicial precedent so we can't really use those to buttress a legal argument.

What I take issue is when someone says "There is a supreme court decision that says/allows/proves XYZ" and states it as a fact yet doesn't provide a way to look it up.

It's fine if they want to tell me their interpretation of the case - clearly I have a different one - but give me a morsel to I can go read it for myself.

The unwillingness to give a case is pretty much the extent of my criticism.

When I conjecture, it is clearly identified (as in "I suspect" or "in my opinion") vs. a "It's not an opinion, It's a fact" answer.

And you are quite correct that my statement may be right or wrong :)

As for link, google: "john bad elk" decision
You'll have a plethora of links, many of which quote the decision as proof of defense against illegal arrest.

And what happened to JBE after actually *doesn't* matter for the "defense against illegal arrest" argument.

I'm guessing by 2076 Roe v. Wade will not matter either, or even the Constitution since that's well over hundred years old already. The dismantling of the 4th Amendment is a good example of that.

But until the Elk case is overturned, it is precedent and can be used by a smart lawyer who is aware of constitutional law history.

Please... 9.31 is about Self-Defense i.e. immediate risk to your life.

Sec. 38.03. RESISTING ARREST, SEARCH, OR TRANSPORTATION. (a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.
(b) It is no defense to prosecution under this section that the arrest or search was unlawful.
(c) Except as provided in Subsection (d), an offense under this section is a Class A misdemeanor.
(d) An offense under this section is a felony of the third degree if the actor uses a deadly weapon to resist the arrest or search.

38.03 (b) makes it clear that even if search or arrest is unlawful you can still be charged with resisting arrest.

Yes, 9.31 would come into play if you don't resist but the policeman attacks or truncheons you.

Ergo, Texas IS one of those states when knowing an arrest is unlawful is no excuse to resist.

Well if you read the TX law, it seems to say you can resist an arrest that involves excessive force but it doesn't say anything about an unlawful arrest.

Reply to dicarted

The statement by the other fellow is actually correct even though your implying he is not. The Texas law you posted certainly does "clarify" the issue as the other gentleman stated. Your suggestion that the law you posted doesn't clarify the question. In your haste to prove somebody wrong you posted an inaccurate statement and probably should apologize.

Here's some other information if you're interested:

http://www.calltodecision.com/yrts.htm

And yet people are in jail for it. Strange how that works if it is not a law.