A person cannot resist with violence an unlawful arrest

Published On August 21, 2011 | By Rob | Articles

According to NBCMIAMI.com

A Pembroke Pines man has filed a federal lawsuit against the Town of Davie and three of its police officers, accusing them of police brutality during a 2009 arrest deemed unlawful by the state.

An attorney for Matthew Lawson, 20, filed the $1 million suit on Tuesday, accusing officers Curtis Schock, Steve Ricker and Paul Vardakis of shocking Lawson with a Taser, sending a K-9 to attack and bite him, and punching and kicking his body, causing him to lose a tooth.

Lawson was initally charged with battery on an officer and resisting arrest with violence after the officers questioned him while he walked down the street and he did not stop.

But the Broward State Attorney’s office dismissed the charges, ruling that a person “cannot resist with violence an unlawful arrest” and there was “no reasonable suspicion of unlawful activity on the part of the defendant to justify a stop and detention of the defendant.”

FULL STORY HERE

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  • ih8cops

    These cops are out of control!

  • trimistresss012

    wow, that is some really fucked up shit… i hope those cops get sued because that kid looks awful. no one deserves something like that.. cops these days seem to be getting more and more crooked.

  • tim

    “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.

    “Citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.” Plummer v. State, 136 Ind. 306.

    or…
    “When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justified.” Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.

    or…
    “These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence.” Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903.

    or…
    “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).

    or…
    “Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense.” (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).

    or…
    “One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance.” (Adams v. State, 121 Ga. 16, 48 S.E. 910).

  • DKSuddeth

    (We the people) “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.”

    “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. If 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.

    “When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justified.” Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.

    “These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence.” Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903.

    “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).

    “Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense.” (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).

    “One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance.” (Adams v. State, 121 Ga. 16, 48 S.E. 910).

    “Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that ‘a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation.’ There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed party be a minority. Story concluded, ‘If there be any remedy at all … it is a remedy never provided for by human institutions.’ That was the ‘ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.’” (From Mutiny on the Amistad by Howard Jones, Oxford University Press, 1987, an account of the reading of the decision in the case by Justice Joseph Story of the Supreme Court.

  • KBCraig

    I think some people are going to get tripped up on your headline and misunderstand the point. When the state dismissed the charges against Lawson, it was saying “a person can’t be charged with resisting arrest with violence, if the arrest itself is unlawful.”

    In other words, a person can legally resist an unlawful arrest.

  • Ivan Tayclue

    Davie cops are scum. They’re rejects from other departments in S. Florida that have already had a problem with them. I hope every judge and jury in line for this throw the book at them. And always check your tag light!

  • Stephen Powell

    I think of most (not all) police officers (today) as mercenaries. Their behavior would be the same in whatever society employed them.They have no regard for citizens, their civil rights or their civil liberties. These mercenaries intimidate and arrest people on trumped up charges (with rubber stamp approval by the judicial system). These mercenaries destroy personal property. They assault, abduct and rob. Sometimes they kill.They have no morals. They lie. Violence is their answer to questioning their actions and/or video-recording.

  • Freedom_fighter

    Of course when the government is committing acts of violence against the people, they are going to always assert that you can’t use violence to defend yourself in any situatioin. But you have to realize the government doesn’t get to make that determination. It’s the people who make such determination over their government when the government doesn’t do what they’re told. Remember, it’s not we the people do what we are told, it’s the government that has to do what they are told. As soon as people remember that and they have not only remember it, they have to enforce the idea that they control the government.

  • PSOSGT

    The problem is folks… 99.9% of the time cops are making a lawful arrest. Cops make Millions of arrest each year. And if someone is falsly arrested the City pays, and pays big. Do some research. 5.27% of lawsuits filed…(FILED).. not won, are for unlawful arrest. Can’t tell you how many people I’ve fought with who thought they were legally right to resist.. and weren’t.

  • tim

    PSOSGT says:
    August 26, 2011 at 7:40 pm

    The problem is folks… 99.9% of the time cops are making a lawful arrest.

    FALSE!!!!!!!

    (“Defendant makes a prima facie case of unlawful arrest when he establishes that arrest was made without a warrant, and burden rests on prosecution to show proper justification.” People v. Holguin (1956) 145 Cal.App.2d. 520 [302 P.2d. 635].)

    99% of the time they are not. I will only show you PROOF for California for the purpose of this:
    http://section520.org/pc.html

    http://law.onecle.com/california/vehicle/40300.html

    CVC 40300
    The provisions of this chapter shall govern all peace
    officers in making arrests for violations of this code without a
    warrant for offenses committed in their presence, but the procedure
    prescribed herein shall not otherwise be exclusive of any other
    method prescribed by law for the arrest and prosecution of a person
    for an offense of like grade.

    http://law.onecle.com/california/vehicle/40300.5.html

    CVC 40300.5
    In addition to the authority to make an arrest without a
    warrant pursuant to paragraph (1) of subdivision (a) of Section 836
    of the Penal Code, a peace officer may, without a warrant, arrest a
    person when the officer has reasonable cause to believe that the
    person had been driving while under the influence of an alcoholic
    beverage or any drug, or under the combined influence of an alcoholic
    beverage and any drug when any of the following exists:
    (a) The person is involved in a traffic accident.
    (b) The person is observed in or about a vehicle that is
    obstructing a roadway.
    (c) The person will not be apprehended unless immediately
    arrested.
    (d) The person may cause injury to himself or herself or damage
    property unless immediately arrested.
    (e) The person may destroy or conceal evidence of the crime unless
    immediately arrested.

    http://law.onecle.com/california/penal/836.html

    Cal Penal 836
    (a) A peace officer may arrest a person in obedience to a
    warrant, or, pursuant to the authority granted to him or her by
    Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2,
    without a warrant, may arrest a person whenever any of the following
    circumstances occur:
    (1) The officer has probable cause to believe that the person to
    be arrested has committed a public offense in the officer’s presence.
    (2) The person arrested has committed a felony, although not in
    the officer’s presence.
    (3) The officer has probable cause to believe that the person to
    be arrested has committed a felony, whether or not a felony, in fact,
    has been committed…

    The United States Supreme Court has identified three categories of police contact with persons. The first is referred to as a “consensual encounter” in which there is no restraint on the person’s liberty. There need be no objective justification for such an encounter. The second type, called “detention,” involves a seizure of the individual for a limited duration and for limited purposes. A constitutionally acceptable detention can occur “if there is an articulable suspicion that a person has committed or is about to commit a crime.” The third type involves seizures in the nature of an arrest, which may occur only if the police have probable cause to arrest the person for a crime. (Florida v. Royer, supra, 460 U.S. 491; Wilson v. Superior Court, supra, 34 Cal.3d 777.)
    PEOPLE v. BAILEY, 176 Cal.App.3d 402
    [No. H000583. Court of Appeals of California, Sixth Appellate District. December 17,1985.]

    You see there MUST be a “Crime” or “PUBLIC OFFENSE” in order for a police officer to “ARREST” or “DETAIN” someone WITHOUT A WARRANT.

    THE only question left, is whether a traffic infraction is a “Crime” or “public offense”.

    http://section520.org/sava.pdf

    must conclude that it was not the intent of the Legislature to enact inconsistent statutes
    and, further, that when it added the term “public offense” to section 16 it was not so
    categorizing infractions because if it did so, it would have caused inconsistency between
    sections 19c and 689 of the Penal Code. Support for this interpretation is found in the
    language of section 1042.5 which states that a defendant “charged with an infraction and
    with a public offense for which there is a right to jury trial” (italics added) may be
    accorded a jury trial. Had the Legislature intended that an infraction be treated as a public
    offense, it would have worded the statute differently, for example, “an infraction and with
    some other public offense.” [50 Cal.App.3d Supp. 7]

    (“[t]here is probable cause to arrest when the facts known to the arresting officer would lead a person of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that an individual is guilty of a crime. [Citation.] The standard of probable cause to arrest is the probability of criminal activity, not a prima facie showing. [Citation.]” (People v. Lewis (1980) 109 Cal.App.3d 599, 608 [167 Cal.Rptr. 326]; see Illinois v. Gates (1983) 462 U.S. 213, 244-246 [103 S.Ct. 2317, 2335-2336, 76 L.Ed.2d 527].)
    In re Charles C. (1999) 76 Cal.App.4th 420
    [3] Reasonable cause has been defined by our California Supreme Court as such a state of facts as would lead a man of ordinary care and prudence to believe, or entertain an honest, strong suspicion, that the person in question is guilty of a crime. (People v. Kilvington, 104 Cal. 86)
    People v West, 144 Cal.App.2d 214
    [Crim. No. 5653. Second Dist., Div. One. Aug. 27, 1956.])

    (The fact the restraint on Ms. Spicer’s liberty was minimal does not make the restraint a reasonable one. The Fourth Amendment applies to all seizures of the person including those consuming no more than a minute. United States v. Brignoni-Ponce, supra, 422 U.S. at pp. 879-880 [45 L.Ed.2d at pp. 615-616].)

    There you have it. A cop pulls someone over for a toll violation, that person is Arrested, without a warrant and illegally…se toll violations specifically.

    http://law.onecle.com/california/vehicle/23302.5.html

    (NOTE not an INFRACTION nor a PUBLIC OFFENSE)

    CVC 23302.5(b)

    (a) No person shall evade or attempt to evade the payment
    of tolls or other charges on any vehicular crossing or toll highway.
    (b) A violation of subdivision (a) is subject to civil penalties
    and is neither an infraction nor a public offense, as defined in
    Section 15 of the Penal Code. The enforcement of those civil
    penalties shall be governed by the civil administrative procedures
    set forth in Article 4 (commencing with Section 40250) of Chapter 1
    of Division 17.

    However, if you want to get technical, the fact the “drivers” of most vehicles have registration and a license plate indicating said registration exists, therefore the officer has consent under the code.

    http://law.onecle.com/california/vehicle/17459.html

    CVC 17459
    The acceptance by a resident of this state of a certificate
    of ownership or a certificate of registration of any motor vehicle or
    any renewal thereof, issued under the provisions of this code, shall
    constitute the consent by the person that service of summons may be
    made upon him within or without this state, whether or not he is then
    a resident of this state, in any action brought in the courts of
    this state upon a cause of action arising in this state out of the
    ownership or operation of the vehicle.

    which is why I have no license plate or registration on my private auto.

  • zonmoy

    psosgt, problem is that simply because an arrest is lawful given the laws designed to insure that most arrests are lawful doesnt make them in any way good.

  • biggieleaver

    We, the people, need to stand up for one another. When a cop is unlawfully arresting someone, do something about it:

    Adams v. State- “One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance…”

    State v. Robinson- “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. Mobley- “Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense…”

  • Jim Coloma

    “One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance.” (Adams v. State, 121 Ga. 16, 48 S.E. 910).
    “Judge Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that ‘a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation.’ There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed party be a minority. Story concluded, ‘If there be any remedy at all … it is a remedy never provided for by human institutions.’ That was the ‘ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.’” (From Mutiny on the Amistad by Howard Jones, Oxford University Press, 1987, an account of the reading of the decision in the case by Justice Joseph Story of the Supreme Court.

    As for grounds for arrest: “The carrying of arms in a quiet, peaceable, and orderly manner, concealed on or about the person, is not a breach of the peace. Nor does such an act of itself, lead to a breach of the peace.” (Wharton’s Criminal and Civil Procedure, 12th Ed., Vol.2: Judy v. Lashley, 5 W. Va. 628, 41 S.E. 197).