Do You Have the Right to Resist an Unlawful Arrest?

Often when people discuss “the law,” rather than operating from a fact-based vantage point they are instead pontificating based upon hearsay, rumor or simply an emotional reaction.

During a recent school board meeting in Gilford, New Hampshire an irate father was removed from the meeting and arrested for “disorderly conduct” based upon his exceeding the “two minute rule.” Many have said that this arrest was illegal.

The reason for this man’s outrage is a topic for another piece, but the video of the arrest, that went viral almost immediately, has sparked yet another debate nationwide.

Screenshot of William Baer being arrested after a school board meeting where he "violated the two minute rule."
Screenshot of William Baer being arrested after a school board meeting where he “violated the two minute rule.”

In one camp you have those who assert that the officer in question had no grounds to actually arrest the angry father and subsequently transport him to jail. Others offered that, while perhaps handcuffs were unnecessary, the man was in the wrong for speaking out of turn and the officer was justified in removing him from the school.

Whichever Internet link you happen upon, if there is an open comment section, chances are high that at least one person posted their opinion that the man in question had the absolute right to resist an unlawful arrest. In response to such comments others have stated that resisting arrest is the worst possible course of action.

Street-corner lawyers and Internet pundits aside, we need to ask ourselves a serious question in this regard: does the American Citizen have the legal right to resist an unlawful arrest?

Thanks to the miracle of the World Wide Web, you need not drive to you local county courthouse and spend hours wading though law books and legal journals. The precedent has long been established and there are numerous findings and legal opinions that can be found online.

WhatImage source: YouTube/
What rights do you have to resist an arrest? Image source: YouTube 

In what would seem to be the original test of the U.S. Constitution’s Bill of Rights, Amendment 5, specifically “..deprived of life, liberty, or property, without due process of law” we have the case of Plummer v. State 135 Ind. 308, 34 N.E. 968 (1893). The Indiana Supreme Court after considering the original case, overturned a manslaughter conviction against Plummer and issued the following opinion: “Citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.”

Several years later, the Plummer decision was used as precedent during the appeals trial of one, John Bad Elk. Bad Elk, a tribal police officer in South Dakota, had killed another tribal policeman. Three policemen had attempted to arrest Bad Elk without a warrant or charges.

Bad Elk was originally convicted of murder, however, his conviction was overturned by the U.S. Supreme Court who issued this opinion:

“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.”

To the modern, enlightened man these legal opinions would seem to be taken straight out of the pages of the Anarchists Cookbook. Some readers may be shocked to see them for the first time and consider that the old courts were sanctioning lawful murder of policemen.

More than two decades ago when I attended the police academy, I recall one of our instructors advising us that a citizen had the right to resist an unlawful arrest. The purpose of that lesson was to impress upon we young bucks the seriousness of the act of arresting a person and that our actions would indeed be put under scrutiny. We cadets were warned about the career ending perils of a “false arrest” charge and advised against the tendency to resort to handcuffs just because we could.

During my time behind the badge there were definitely times when handcuffs and detention were absolutely the order of the day. Nonetheless, there were also times during a non-violent confrontation that the introduction of cuffs would have only exacerbated the situation.

Source: Shutterstock.com
Source: Shutterstock.com 

My first police chief taught me that as long as no one was throwing punches, sometimes it was good just to let people “blow off some steam.” Back then new officers were taught the art of mediation. The choice to arrest, or not to arrest, was left to the officer’s on scene discretion.

Those boisterous people would often vent a bit and then regain control. More than once I was able to calm an irate individual by not reacting the way they thought I would. Many blowhards were ready to fight, but when I did not offer physical combat they took the cue and changed their tune. Some even apologized to me for losing their cool.

My impetus for putting pen to paper on this subject is the disturbing trend I am witnessing nationwide. In case after case, we see policemen who seem to view handcuffs as their first and only resort to a non-violent altercation. What is even more troubling to me are the scores of timid apologists who reason that any public display of anger or outrage is rightfully silenced by officers of the state.

This nation was born of dissent not acquiescence. Our founders fought for the rights of man. If Adams, Jefferson and Madison had listened to the voices of timidity and complicity their only path would have been the return to the life of comfortable tax slaves.

Rather than accept that they were sanctioning murder, we could view the legal opinions of the courts in both the Plummer and Bad Elk cases as a message sent by the Judicial Branch to the Executive. Firearms and handcuffs, while often legitimately called for in a crisis, should not be the default for every situation encountered. When the state seeks to rule by the sword, the peasants have a choice to make: submit or resist.

For the past three decades Paul Markel has had the privilege to study with some of the finest instructors the U.S. Military and Law Enforcement world have to offer. Visit Student of the Gun.

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