Anne Dekins was a loud-mouthed party girl -- or at least, that's what the arrest warrant suggested. Whatever she may havedone in the past, Miss Dekins was quietly minding her own business when OfficerSamuel Bray found her on the street and began to haul her away.
Dekins wasn’t inclined to goquietly, and she put up a struggle. Her cries for help attracted the interestof several armed men led by an individual named Tooley, who confronted Bray anddemanded to know what he was doing to the frantic woman. The officer producedhis official credentials and insisted that he was making a lawful arrest for“disorderly conduct.” When witnesses disputed that description, Bray called forbackup.
Tooley and his associatesordered Bray to release the woman, and then took action to enforce that lawful order.After Bray’s partner was killed in the ensuing struggle, Tooley and hisassociates were arrested for murder. The trial court threw out the murdercharge, ruling that the warrant was defective. Since the arrest was illegal,the court pointed out, Dekins had a right to resist – and bystanders likewisehad a right, if not a positive duty, to assist her. The defendants were eventuallyfound guilty of manslaughter, but quickly pardoned and set free.
By trying to enforce an invalidwarrant, Bray “did not act as a constable, but a common oppressor,” observedthe trial court. Tooley and the other bystanders were properly “provoked” bythe act of aggressive violence against Anne Dekins, and their forceful butmeasured response – first demanding that the abductor release the hostage, thenexercising defensive force to free her – was entirely appropriate.
Lawless violence against thehelpless “is a sufficient provocation to all people out of compassion” in anycircumstance, observed the court, “much more where it is done under a colour ofjustice, and where the liberty of the subject is invaded….” In fact, an act ofthat kind carried out by a law enforcement official is nothing less than “aprovocation to all the subjects of England.”
Every Englishman “ought to beconcerned for Magna Charta and the laws,” concluded the Queen’s Bench inthe 1710 case Queen v. Tooley.“And if any one against the law imprison a man, he is an offender against MagnaCharta.”
Roughly forty years earlier, thesame court had issued a similar opinion in HopkinHuggett’s Case. Huggett and his friends had come to the aid of a manwho had been arrested by a constable named Berry. Huggett demanded to see thearrest warrant. When Berry produced a clearly spurious document, Huggett drewhis sword and demanded the prisoner’s release. Berry refused, and finishedsecond in the ensuing swordfight.
The wrongfully arrested man inthat case (who was threatened with impressment into the military) did nothingto resist his abduction. It wasn’t clear that Huggett knew the man, or had evenmet him prior to the incident. Yet the Queen’s Bench ruled that Huggett’sactions were justified, since a situation in which a “man [is] unduly arrestedor restrained of his liberty … is a provocation to all other men of England,not only his friends but strangers also[,] for common humanity’s sake.”
In addition to codifying theCommon Law right to resist arrest, HopkinHuggett’s Case and Queen v. Tooley recognized that this right inheresnot only in the victim, but in citizens who interpose on the victim’s behalf.
Simply put: When a policeofficer commits the crime of unlawful arrest, the citizens who intervene areacting as peace officers entitled to employ any necessary means –including lethal force – to liberate the victim.
In early 18thCentury England, this was seen as anon-negotiable bulwark against what the heroic Algernon Sidney called “theviolence of a wicked magistrate who, hav[ing] armed a crew of lewd villains,”would otherwise inflict his will on innocent and helpless people with impunity.Sidney’s martyrdom at the hands of precisely that kind of degenerate,tyrannical magistrate underscored the vitality of the principle he expressed.
“The right to resist unlawful arrestmemorializes one of the principal elements in the heritage of the Englishrevolution: the belief that the will to resist arbitrary authority in areasonable way is valuable and ought not to be suppressed by the criminal law,”observed Paul Chevigny in a 1969 Yale LawJournal essay. Actually, Chevigny – like many others – elides a criticaldistinction between “power” and “authority”: While a police officer may havethe power to abduct or abuse aninnocent person, citizens have the authorityto prevent that crime.
Until the late 1960s, moststates recognized – albeit grudgingly -- the Common Law right to resist arrest.By 1969, that right had been transmuted, through judicial activism, into arevocable “privilege” – one that had to be dispensed with to serve the interests of the State's punitive caste.
“The weight of authoritativeprecedent supports a right to repel an unlawful arrest with force…. This wasthe rule at common law,” admitted the Alaska State Supreme Court in a seminalwork of sophistry called Terry Glenn Miller v. State of Alaska. “Itwas based on the proposition that everyone should be privileged to usereasonable force to prevent an unlawful invasion of his physical integrity andpersonal liberty.”
That admission clearlyanticipated the familiar use of the magical conjunction “but” as a rhetoricalreset button, and the Court didn’t disappoint:
“But certain imperfections inthe functioning of the rule have brought about changes in some jurisdictions. Anew principle of right conduct has been espoused” – by whom, the Court didn’tspecify. “It is argued” – once again, the parties to that argument were notidentified – “that if a peace officer is making an illegal arrest but is notusing force” – something that could not occur, given that an arrest, by strictdefinition, is an act of armed coercion – “the remedy of the citizen should bethat of suing the officer for false arrest, not resistance with force.”
Four years after the Miller decision, a decision entitled Richardsonv. Idaho emerged from the Idaho State Supreme Court’s emunctoryaperture. John Richardson had been convicted of resisting arrest throughviolence and sentenced to five years in prison. The incident in which thesupposed crime occurred took place at a restaurant in Idaho Falls. Richardsonand his ex-wife, who were having dinner, got into an argument, and were askedto leave when the latter became loud and profane.
Two off-duty police officersescorted them outside, and then tried to arrest Richardson for “disorderlyconduct” after he became annoyed by their unwarranted intrusion. Richardsonkicked one of the uniformed buttinskis in the mouth, and managed to grab one oftheir pistols, which he fired into the air, rather than at his assailants (ashe was entitled to, both morally and – under the Supreme Court’s still-valid 1900 Bad Elk precedent – legally).
Prominentlyciting the Miller decision in Alaska,the Idaho Court observed that “More than one state has, without legislativeaction, modified the traditional common law rule and has adopted the rule thata private citizen may not use force to resist a peaceful arrest,” blithelyignoring, once again, the fact that a “peaceful arrest” is a creature morefanciful than a left-handed unicorn that speaks Norwegian. “We are of theopinion that the trend is, and should be, away from the traditional common lawrule, and therefore we hold that if a person has reasonable ground to believehe is being arrested by a peace officer, it is his duty to refrain from usingforce or any weapon in resisting arrest regardless of whether or not there is alegal basis for the arrest.”
The key holding in theRichardson ruling has been enshrined in the Idaho Code Judicial Instructions(ICJI 1262), which asserts that “it is the person’s duty to refrain from usingforce or any weapon in resisting arrest regardless of whether or not there is alegal basis for the arrest.” The obverse of this spurious “Duty to Submit toArrest” is a police officer’s privilege to commit criminal acts for the purposeof nullifying the Exclusionary Rule – something the Idaho Supreme Courtacknowledged in a 2008 ruling captioned State v.Lusby.
Police paid a visit to Lusby’sapartment to investigate a disturbance. She quickly grew tired of the uninvitedcompany – what decent person wouldn’t? – and went into her apartment, closingthe door behind her. One of the officers committed an act of criminal trespassand announced that Lusby was under arrest for “obstruction” and “resistance.” Atone point the bully caught an elbow in the face from the victim, a small down-paymenton what he deserved – but enough to earn Lusby a charge of felonious assault onan officer. She was also charged with drug possession on the basis of evidencefound in the officer’s illegal search.
Because that search was patentlyillegal, the trial court granted a motion to dismiss all charges against Lusby.The State Supreme Court admitted that this was the case – but insisted that Lusby’s resistance to the illegal invasion of herhome retroactively legalized the unconstitutional search.
“It appears to be a nearlyuniversal rule in American jurisdictions that when a suspect responds to anunconstitutional search or seizure by a physical attack on the officer,evidence of this new crime is admissible notwithstanding the prior illegality,”decreed the court, extracting that “rule” from precisely the same orifice fromwhich the Richardson rulingoriginated. “The rationale … [is that] a subsequent attack on the officer is anew crime unrelated to any prior illegality…. Accordingly, we hold thatevidence of Lusby’s alleged batter on an officer or other forceful resistanceis not suppressible … [and] evidence of paraphernalia found in the searchincident to Lusby’s arrest [is] admissible.”
On this construction, a policeofficer can nullify the Fourth Amendment anytime he pleases, simply by claimingthat the victim committed the supposed crime of resisting. This can take theform of assuming an “aggressive posture,” such as “blading” the body or evenputting one foot in front of the other in what can be construed as an “attackstance.” Or, as the recent assault on Austin, Texas resident Antonio Buehlerdemonstrates, the “assault” can be nothing more than breathing in the face of apolice officer.
Buehler, 34, is a combat veteran of Kosovo and Iraq, West Point graduate,and middle school teacher.He was serving as a designated driver on the morning of New Year’s Day when hesaw a woman being abused by police outside a 7-11. The costumed assailants,officers PatOborski and RobertSnider, were conducting what they called a DWI arrest of a woman lateridentified as Norma Pizana.
To Buehler and his friends, thespectacle looked more like a gang assault.
"We hear a loud scream, andwe look over, and we see the cop violently yanking the female out of the caronto the ground," Buehler told local ABC affiliate KVUE. "She is screaming. The other copran up and they both sort of grabbed her arms. Her hands were behind her backstraight out and they lifted her up by her arms. It looked extremelypainful."
With the help of a friend,Buehler began to document this act of "street justice" with his cellphone. That prompted Oborski to confront Buehler, who was not interfering inany way.
According to Buehler, Oborskibarked, "What the hell are you taking pictures for?"
"My response was, `I amallowed to. Public official in a public place.'"
As he was trained to, Oborski started to lie in an effort to devise a cover charge against Buehler.First he claimed that Buehler was somehow "interfering with the investigation,"which was patently untrue. Then the cop assaulted Buhler by pushing theunresisting man — who would have been more than a match for the donut-grazer,had he chosen to fight back — up against a truck.
"Once he had me pinned upagainst the back of the truck he kept leaning in," Buehler continued."He kept pushing me."
Eventually Oborski got so closethat Buehler actually breathed on him — which gave him a pretext to accuse thewitness of "spitting" on him. With some difficulty, and Snider’s help,Oborski wrestled Buehler (who offered only passive resistance) to the groundand handcuffed him. The cops took Beuhler to a BAT van—- a patently unreliable mobile alcohol testing unit — in the hope of documenting that thewitness was intoxicated, which he wasn't. The cop finally settled on charginghim with "harassing a public servant" — a third-degree felony — and"resisting arrest."
As is always the case inincidents of this kind, Buehler wasn’t arrested for an actual crime; hewas vindictively punished for “contempt of cop.”
“You don’t f*** with cops,” Oborski snarled at Buehler. “Youdon’t get in our f***ing way. You don’t question us, and we’re going to teachyou a lesson.”
Norma Pizana’s plight was strikingly similar to that of AnneDekins, with at least one critical difference: Dekins and her rescuers were blessedto live in 18th Century England, a relatively civilized society thatrecognized and protected a free individual’s indispensable right to resistState-licensed criminal violence.
Acknowledgements and Updates
Once again, thanks to everyone who has donated so generously. This really means a great deal to me and my family.
Among the reasons why my activity here at Pro Libertate has tapered off somewhat is the fact that I've been very busy curating the blog at Republic magazine. Check out the website and, if you're interested, sign up for a free digital subscription.
Some of you are aware that my wonderful wife Korrin has been hospitalized several times since 2006. She's in the hospital again. I would appreciate prayers on her behalf from those of you so inclined. Thank you.
Dum spiro, pugno!
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