 |
|
re: Resisting unlawful arrest...
Posted on: September 4, 2017 at 00:03:49 CT
JeffB MU
Posts:
69571
Member For:
20.85 yrs
Level:
User
M.O.B. Votes:
0
A couple of days ago TigerMatt asserted that a nurse who was arrested in what was likely a false arrest had a right to kill the cop who arrested her.
http://tigerboard.com/boards/view.php?message=15010849
Plummer vs State says nurse can kill cop while Resisting an unlawful arrest.
----------
Of course that is patently false, pickle's protestations to the contrary notwithstanding. He cited a number of cases, but none of them backed up his assertion.
Later on he made a different assertion:
http://tigerboard.com/boards/view.php?message=15011136
Kansas City vs Mathias.. MO case law says citizens have a right to resist unlawful arrest.
-----------
Lest anyone fall prey to the mistake of taking his legal advice, it should be noted that Missouri passed a law specifically addressing the issue & superseding common law:
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=0ahUKEwjo6tr93IrWAhUIh1QKHdA-B8wQFggyMAI&url=https%3A%2F%2Fwww.ncjrs.gov%2FApp%2Fpublications%2Fabstract.aspx%3FID%3D52410&usg=AFQjCNFT-ZWCpPWT2evejA7R6xzCa9cloQ
Even though present case law is conflicting as to the existence in Missouri
of a right to resist an unlawful arrest, the statute is now clear. In
its last legislative session, the General Assembly adopted section 575.150
of the new Criminal Code, which makes it a crime to resist or interfere
with an arrest if the arrestee knows that a law enforcement officer is
making the arrest. The common law defense of resisting an unlawful
arrest is specifically eliminated.2 9 The right of self defense against the
unreasonable and excessive force by an arresting officer was not affected
by the statute. This provision is not effective until January 1, 1979, so
until that time, Missouri case law will determine the rights of an arrestee
subject to an unlawful arrest. The new statutory provisions align Missouri
with the increasing number of states that have abrogated the right
to resist an unlawful arrest.30 The rule in these jurisdictions is that
when a person knows he is being arrested by an officer of the law, he
cannot physically resist unless it is necessary to protect his physical wellbeing.
1
The reasons for recommending the abandonment of the common law
rule are grounded on the assumption that such a change will lead an
arrestee to "challenge the validity of arrest[s] in courts rather than on
the streets." 32 From an historical perspective, it is argued that the unavailability
of bail often led to lengthy pre-trial detainment in overcrowded,
disease-riddened jails, and that an arrestee had good reason to
resist an unlawful arrest. At present, because of better jail conditions,
improved police methods, prompt arraignment, the setting of bail, 33
administrative remedies, and injunction and civil damages, it simply is
not practical to resist physically an unlawful deprivation of one's liberty.
34 Further, the defense of resisting an unlawful arrest cannot accomplish
its purpose of preventing the arrest because the defense is only
raised in a criminal trial, after the arrest has taken place. 35
-------------
http://law.justia.com/codes/missouri/2005/t38/5750000150.html
2005 Missouri Revised Statutes - § 575.150. — Resisting or interfering with arrest--penalty.
575.150. 1. A person commits the crime of resisting or interfering with arrest, detention, or stop if, knowing that a law enforcement officer is making an arrest, or attempting to lawfully detain or stop an individual or vehicle, or the person reasonably should know that a law enforcement officer is making an arrest or attempting to lawfully detain or lawfully stop an individual or vehicle, for the purpose of preventing the officer from effecting the arrest, stop or detention, the person:
(1) Resists the arrest, stop or detention of such person by using or threatening the use of violence or physical force or by fleeing from such officer; or
(2) Interferes with the arrest, stop or detention of another person by using or threatening the use of violence, physical force or physical interference.
2. This section applies to arrests, stops or detentions with or without warrants and to arrests, stops or detentions for any crime, infraction or ordinance violation.
3. A person is presumed to be fleeing a vehicle stop if that person continues to operate a motor vehicle after that person has seen or should have seen clearly visible emergency lights or has heard or should have heard an audible signal emanating from the law enforcement vehicle pursuing that person.
4. It is no defense to a prosecution pursuant to subsection 1 of this section that the law enforcement officer was acting unlawfully in making the arrest. However, nothing in this section shall be construed to bar civil suits for unlawful arrest.
5. Resisting or interfering with an arrest for a felony is a class D felony. Resisting an arrest, detention or stop by fleeing in such a manner that the person fleeing creates a substantial risk of serious physical injury or death to any person is a class D felony; otherwise, resisting or interfering with an arrest, detention or stop in violation of subdivision (1) or (2) of subsection 1 of this section is a class A misdemeanor.
(L. 1977 S.B. 60, A.L. 1996 H.B. 1047, A.L. 2002 H.B. 1270 and H.B. 2032, A.L. 2005 H.B. 353)
(1992) Offense of resisting arrest is the resistance by the defendant and the number of offenses for resisting arrest is not dependent upon how many officers were attempting to arrest defendant. Double jeopardy bars multiple convictions for the same offense where the conduct is continuous. State v. Good, 851 S.W.2d 1 (Mo. App. S.D.).
(1993) Statute requires for the crime of resisting arrest: first that a person knows that a law enforcement officer is making an arrest, and second that the person resists the arrest by fleeing for the purpose of preventing the officer from effecting the arrest. Where there was no evidence that officer was making an arrest nor was there any evidence that defendant knew that the officer was making an arrest, there was no evidence to sustain a conviction for resisting arrest. State v. Dossett, 851 S.W.2d 750 (Mo. App. W.D.).
--------------
http://www.slate.com/blogs/quora/2014/06/18/unlawful_arrest_is_resisting_a_police_arrest_ever_legal.html
Is Resisting Arrest Ever Legal?
by Tim Dees, retired cop and criminal justice professor, Reno Police Department, Reno Municipal Court, and Pyramid Lake Paiute Tribal Police Department:
Possibly, depending on which state you happen to be in. Some states expressly grant the right to resist an unlawful arrest, and a few others expressly prohibit it.
That said, I would never advise someone to resist arrest, even if he or she knows the arrest was improper or unlawful. The cop's trained reaction to resistance is to increase the level of force to overcome the resistance. Since he has the immediate capacity to take that level all the way to deadly force, you're rolling the dice in a very dangerous game.
In court, resistance to arrest will nearly always be interpreted as a consciousness of guilt, not the recognition that the arrest is unlawful and the arrestee's resistance is a reasonable response. If the officer's testimony could be impeached (showing he was not being truthful) or the court was made aware that the officer had a reputation for untruthfulness or fabrication of probable cause for an arrest, the defendant might prevail. These officers and instances do exist, but they tend to be rare. Most officers are well-intentioned and truthful, and the courts know this.
Keep in mind that an arrest made in error is not necessarily unlawful if the officer's belief that the arrest was lawful was reasonable. Here's a real-world example: ...
Edited by JeffB at 00:16:24 on 09/04/17
http://tigerboard.com/boards/view.php?message=15010849
Plummer vs State says nurse can kill cop while Resisting an unlawful arrest.
----------
Of course that is patently false, pickle's protestations to the contrary notwithstanding. He cited a number of cases, but none of them backed up his assertion.
Later on he made a different assertion:
http://tigerboard.com/boards/view.php?message=15011136
Kansas City vs Mathias.. MO case law says citizens have a right to resist unlawful arrest.
-----------
Lest anyone fall prey to the mistake of taking his legal advice, it should be noted that Missouri passed a law specifically addressing the issue & superseding common law:
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=0ahUKEwjo6tr93IrWAhUIh1QKHdA-B8wQFggyMAI&url=https%3A%2F%2Fwww.ncjrs.gov%2FApp%2Fpublications%2Fabstract.aspx%3FID%3D52410&usg=AFQjCNFT-ZWCpPWT2evejA7R6xzCa9cloQ
Even though present case law is conflicting as to the existence in Missouri
of a right to resist an unlawful arrest, the statute is now clear. In
its last legislative session, the General Assembly adopted section 575.150
of the new Criminal Code, which makes it a crime to resist or interfere
with an arrest if the arrestee knows that a law enforcement officer is
making the arrest. The common law defense of resisting an unlawful
arrest is specifically eliminated.2 9 The right of self defense against the
unreasonable and excessive force by an arresting officer was not affected
by the statute. This provision is not effective until January 1, 1979, so
until that time, Missouri case law will determine the rights of an arrestee
subject to an unlawful arrest. The new statutory provisions align Missouri
with the increasing number of states that have abrogated the right
to resist an unlawful arrest.30 The rule in these jurisdictions is that
when a person knows he is being arrested by an officer of the law, he
cannot physically resist unless it is necessary to protect his physical wellbeing.
1
The reasons for recommending the abandonment of the common law
rule are grounded on the assumption that such a change will lead an
arrestee to "challenge the validity of arrest[s] in courts rather than on
the streets." 32 From an historical perspective, it is argued that the unavailability
of bail often led to lengthy pre-trial detainment in overcrowded,
disease-riddened jails, and that an arrestee had good reason to
resist an unlawful arrest. At present, because of better jail conditions,
improved police methods, prompt arraignment, the setting of bail, 33
administrative remedies, and injunction and civil damages, it simply is
not practical to resist physically an unlawful deprivation of one's liberty.
34 Further, the defense of resisting an unlawful arrest cannot accomplish
its purpose of preventing the arrest because the defense is only
raised in a criminal trial, after the arrest has taken place. 35
-------------
http://law.justia.com/codes/missouri/2005/t38/5750000150.html
2005 Missouri Revised Statutes - § 575.150. — Resisting or interfering with arrest--penalty.
575.150. 1. A person commits the crime of resisting or interfering with arrest, detention, or stop if, knowing that a law enforcement officer is making an arrest, or attempting to lawfully detain or stop an individual or vehicle, or the person reasonably should know that a law enforcement officer is making an arrest or attempting to lawfully detain or lawfully stop an individual or vehicle, for the purpose of preventing the officer from effecting the arrest, stop or detention, the person:
(1) Resists the arrest, stop or detention of such person by using or threatening the use of violence or physical force or by fleeing from such officer; or
(2) Interferes with the arrest, stop or detention of another person by using or threatening the use of violence, physical force or physical interference.
2. This section applies to arrests, stops or detentions with or without warrants and to arrests, stops or detentions for any crime, infraction or ordinance violation.
3. A person is presumed to be fleeing a vehicle stop if that person continues to operate a motor vehicle after that person has seen or should have seen clearly visible emergency lights or has heard or should have heard an audible signal emanating from the law enforcement vehicle pursuing that person.
4. It is no defense to a prosecution pursuant to subsection 1 of this section that the law enforcement officer was acting unlawfully in making the arrest. However, nothing in this section shall be construed to bar civil suits for unlawful arrest.
5. Resisting or interfering with an arrest for a felony is a class D felony. Resisting an arrest, detention or stop by fleeing in such a manner that the person fleeing creates a substantial risk of serious physical injury or death to any person is a class D felony; otherwise, resisting or interfering with an arrest, detention or stop in violation of subdivision (1) or (2) of subsection 1 of this section is a class A misdemeanor.
(L. 1977 S.B. 60, A.L. 1996 H.B. 1047, A.L. 2002 H.B. 1270 and H.B. 2032, A.L. 2005 H.B. 353)
(1992) Offense of resisting arrest is the resistance by the defendant and the number of offenses for resisting arrest is not dependent upon how many officers were attempting to arrest defendant. Double jeopardy bars multiple convictions for the same offense where the conduct is continuous. State v. Good, 851 S.W.2d 1 (Mo. App. S.D.).
(1993) Statute requires for the crime of resisting arrest: first that a person knows that a law enforcement officer is making an arrest, and second that the person resists the arrest by fleeing for the purpose of preventing the officer from effecting the arrest. Where there was no evidence that officer was making an arrest nor was there any evidence that defendant knew that the officer was making an arrest, there was no evidence to sustain a conviction for resisting arrest. State v. Dossett, 851 S.W.2d 750 (Mo. App. W.D.).
--------------
http://www.slate.com/blogs/quora/2014/06/18/unlawful_arrest_is_resisting_a_police_arrest_ever_legal.html
Is Resisting Arrest Ever Legal?
by Tim Dees, retired cop and criminal justice professor, Reno Police Department, Reno Municipal Court, and Pyramid Lake Paiute Tribal Police Department:
Possibly, depending on which state you happen to be in. Some states expressly grant the right to resist an unlawful arrest, and a few others expressly prohibit it.
That said, I would never advise someone to resist arrest, even if he or she knows the arrest was improper or unlawful. The cop's trained reaction to resistance is to increase the level of force to overcome the resistance. Since he has the immediate capacity to take that level all the way to deadly force, you're rolling the dice in a very dangerous game.
In court, resistance to arrest will nearly always be interpreted as a consciousness of guilt, not the recognition that the arrest is unlawful and the arrestee's resistance is a reasonable response. If the officer's testimony could be impeached (showing he was not being truthful) or the court was made aware that the officer had a reputation for untruthfulness or fabrication of probable cause for an arrest, the defendant might prevail. These officers and instances do exist, but they tend to be rare. Most officers are well-intentioned and truthful, and the courts know this.
Keep in mind that an arrest made in error is not necessarily unlawful if the officer's belief that the arrest was lawful was reasonable. Here's a real-world example: ...
Edited by JeffB at 00:16:24 on 09/04/17
Please explain why this message is being reported.
MESSAGE THREAD
re: Resisting unlawful arrest... - JeffB MU - 9/4 00:03:49