Forum topic related to:

Augustin introduced the issue of whether resisting arrest is a valid crime in a follow-up post to the problem of police brutality. I wanted to start a separate conversation about this issue; perhaps we will eventually list this as a separate problem.

Here is what someone wrote in a youtube comment:

There is no such crime as "resisting arrest." This is a fictitious crime.
Supreme court rulings-
"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
"Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary." Plummer v. State, 136 Ind. 306.

Here is my reply:

You make a very interesting point, which I will respond to below, but I’m afraid the case law you cite is misleading and in several respects just wrong. It is circulating widely on the Internet in more or less the same form as you give it.

Here are the "facts," as far as I can tell:

• The cases you cite are not Supreme Court cases: they are both state cases, the first from the state of Maine (ME), and the second from the state of Indiana (Ind.).
• The first case, State v. Robinson, decided in 1950, is no longer operable -- since 1978, Maine has had a different standard:
  

  Under the law of justification in Maine, a private citizen is limited in his or her legal ability to resist an arrest by a police officer. Maine no longer adheres to the common law rule that a citizen has the same rights to resist an illegal arrest "as he would have in repelling any other assault and battery." State v. Austin, 381 A.2d 652, 653 (Me. 1978) (quoting State v. Robinson, 145 Me. 77, 81, 72 A.2d 260, 262 (1950)) Maine v. Dumond (2000) (I don't know if you will be able to follow the link without signing up for a free account at FindLaw...)
  

• The second case has not been overturned. However, I think the quote is misleading. The issue in Plummer (decided in 1893) was whether a person has the right to resist excessive force used by a police officer performing an illegal arrest. More recent decisions (summarized nicely in Wilson v. Indiana (2006) have made it clear that this means that a person has the right "to resist arrest to such an extent as necessary to protect himself from great bodily harm or death." Absent that, you're supposed to submit to the arrest and then sue them for wrongfully arresting you.
• There is a relevant U.S. Supreme Court decision. It's called JOHN BAD ELK v. U S, 177 U.S. 529 (1900). It is cited in many of the places that talk about the Plummer case from Indiana, and has never been overturned, although the trend in the U.S. is very decidedly away from making resisting arrest legal (See http://boalt.org/bjcl/v2/v2hemmens.htm#endnote126anc). Even this case, though, makes it very clear that the only arrest that a person can resist is one that is "unlawful." "Unlawful" doesn't appear to mean "wrong" or "unjust" in this case -- it means you don't have a warrant to arrest them, or you don't have probable cause that they are doing something illegal (see http://en.wikipedia.org/wiki/Unlawful_Arrest). For both of your examples, the second criteria -- that the person wasn't doing something illegal -- could apply. But in most cases, it's necessary to prove that the police officer was wrong in the initial allegation of wrongdoing. In fact, in most cases you have to prove that the officer knew s/he was wrong, and was willfully overreaching. I don't know what laws the two people who were brutalized were allegedly breaking, but if they were breaking a law, even a dicey one like "disturbing a public meeting," then the police may have had the right to arrest them. That doesn't mean that they had the right to brutalize them. But it may mean that they can't claim that they were resisting an unlawful arrest, under the law as it stands now. I can't find any evidence of a legal right to resist an arrest that you don't agree with -- only the more limited right to resist an arrest when your life is in jeopardy, or when the arresting officer clearly has no right to make the arrest. It is a very tough standard.

I don't mean to undermine the moral case you are making here. But I think it is incorrect to say that "there is no such crime as 'resisting arrest.'" The fact is that it is a crime in some circumstances in every state in the U.S., and in most states there are very few situations where you can lawfully resist arrest. You pretty much have to be in danger of significant injury or death. I'm not saying that this is right -- just that it is what exists. Change will require changing the law, not following it.

That said, I'm very glad you raised this issue. Perhaps it should be listed as a distinct problem: "Resisting arrest should not be a crime." This issue is obviously intertwined with the problem of police brutality, since most of the latter is in the context of arresting people who are obviously resisting. At the same time, if resisting arrest was no longer a separate crime, the police would obviously still use force to arrest people, so brutality would still happen. All it would mean is that someone arrested wrongly would not have the added insult of being charged for resisting an improper arrest. I agree with you that this would be much better, but I question whether it would change the core problem of brutality. In the two cases you refer to, the police were not arresting the people for "resisting arrest" (because of course that "crime" couldn't happen until they started the arrest process). They were arresting them for "disturbing the peace" or whatever other charge. To change the police behavior from the legal side of things, you'd have to prohibit the use of force for alleged crimes like that.

That might be a good idea, although there are complications. Suppose someone started shouting at a public city council meeting and wouldn't stop. If the police don't have the right to arrest that person, how could you hold the meeting? I'm very sympathetic to the right to protest, but I wonder what would happen if there was no right to contain protest. It seems like there should be some reasonable balance between the two. But as soon as you give the police the right to arrest protesters under at least some circumstances, you have the possibility that they will be brutal in the process of doing so. The question I have is: what alternatives are there to the use of brute force in arresting someone? Obviously, someone who is threatening people (with a weapon, for example) might need to be stopped forcefully. But when a person is just irritating people, isn't there some way of intervening non-violently?