A large number of Internet wannabe experts cite cases from this webpage when arguing the proposition that a citizen may resist a police officer making an “unlawful” arrest.  Let’s look at the post, the actual cases, and the law.

“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.”

OK, let’s look at what Plummer v. State, 136 Ind. 306, 34 N.E. 968 (1983) actually says.  First, the opinion of the Indiana Supreme Court doesn’t have the quoted material anywhere in the opinion.  Not even in the headnotes (which are not part of the opinion anyway).  Second, what the opinion does say is the exact opposite.  It states “[i]f the officer is resisted before he has used needless force and violence, he may then press forward and overcome such resistance, even to the taking of the life of the person arrested, if absolutely necessary.” Id. at 313, 34 N.E. at 969 (emphasis added).  If the officer is being resisted, then the officer can use any force necessary, up to and including deadly force.  Nothing at all about the citizen using deadly force.  What the opinion does state is that if the officer uses unnecessary, excessive force, a person has the right to defend themselves from that excessive force.  Here the officer hit Plummer over the head from behind with a billy club, and then shot at Plummer.  Plummer shot back, more accurately, and killed Marshal Dorn.  The court said “[w]hen a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force, and if, in the reasonable exercise of his right of self-defense, his assailant is killed, he is justifiable.”  Id. at 314, 34 N.E. at 970.  Plummer is still good law for what it actually says, that a citizen may defend himself against an officer’s excessive force.

One can also tell when someone is citing the Bad Elk case from this website.  They always cite the case the exact way that the wannabe cited it, as John Bad Elk v. U.S.  There’s only one problem with that–it’s not the correct way to cite the case, which should be listed as Bad Elk v. United States, 177 U.S. 529 (1900).  Legal citation only uses the last name of the party, and U.S. is not abbreviated.  The quoted portion is accurate, but is cherry-picking.  Earlier in the opinion, the Court says

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 had the right to arrest, to manslaughter. What would be murder, if the officer had the right to arrest, might be reduced to manslaughter by the very fact that he had no such right.

Id. at 534.

The Court lists about ten citations as supporting authority for this statement.  The statement cited has none, but is clearly referring to a self-defense right as in Plummer.  That may or may not have been present here.  Another item that the post doesn’t mention is that Bad Elk was a tribal police officer.  In any event, Bad Elk is no longer considered good law in much of the country, having been superseded by statutes that prohibit resisting arrest even if the arrest is unlawful.  See State v. Gallagher, 465 A.2d 232 (Conn. 1983); State v. Haas, 596 A.2d 127 (N.H. 1991); Villafranca v. United States, No. 3:06-CV-0806-N, 2008 U.S. Dist. LEXIS 111716, 2008 WL 8919855 (N.D. Tex. 2008).

Continuing to the second paragraph of the post, which states

“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.

Again, the quoted material does not appear in the citation listed.  Instead the Illinois Supreme Court states in Housh v. People, 57 Ill. 491 (1874) that when a judge issues a warrant that he does not have jurisdiction to issue, a constable or other officer may not be held liable for voluntarily releasing the person arrested under such warrant.  The opinion does not mention resistance, does not mention killing, and does not mention manslaughter.  The State v. Leach, 7 Conn. 452 (1829) most assuredly did not “reaffirmed and quoted” Housh, indeed it was impossible for it to do so, having been decided 45 years before the Housh decision.  Instead, Leach was cited in the Housh decision, as supporting authority.

Neither Housh nor Leach is cited in State v. Gleason, 32 Kan. 245, 4 P. 363 (1884), which is about the authority of a county attorney to file criminal charges on an information instead of an indictment.  Ballard v. State, 43 Ohio 340, 1 N.E. 76 (1885) states the opposite of the premise of the post.  It states that if an officer is making an arrest, even if the information is false and the accused innocent, the accused is bound to submit to the arrest and seek redress in the courts.  Ballard’s conviction for murder in the first degree was affirmed.

State v. Rousseau, 241 P.2d 447 (Wash. 1952) does state that an individual has a common law right to resist an unlawful arrest, but has one major problem.  It was overruled.  The citation should read State v. Rousseau, 241 P.2d 447 (Wash. 1952), overruled by State v. Valentine, 935 P.2d 1294 (Wash. 1997), which stated that one could only legally resist if the officers were using unlawful or excessive force.

The last case cited, State v. Spaulding, 34 Minn. 361, 25 N.W. 793 (1885) also does not say what the post claims it states.  It reverses a murder conviction on the fact the original arrest warrant could not be found and that the state did not lay a proper foundation for admitting oral testimony as to the original arrest warrant.  It cites none of the other cases, but does state that the only time that an officer may be resisted is if the officer is using unlawful, excessive force.

The other cases are similarly wrong.  Whether this was an inadvertent error by the site owner, or a deliberate attempt to falsify the information, the end results are the same.  It’s wrong, and if you cite them in court to defend yourself, you are going to get screwed.  Even worse, if you base your actions in dealing with a police officer on this page, and you resist to the point that the officer is killed, you could end up with a needle in your arm.

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