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The rights of the individual in the face of state power has been one of the cornerstones of American political philosophy for centuries. In the Internet era, there is no shortage of advice — certain, definitive and complete with authoritative-looking (and often misleading) sources — about what a civilian can and cannot do when interacting with an agent of the state. One common claim is that, contrary to conventional wisdom, individuals do in fact have a constitutional right to resist unlawful arrest. For example, the Cop Block Facebook page produced this meme: The source for this claim is the web site Constitution.org, which is run by Jon Roland, a Texas computer scientist with links to the anti-government patriot and militia movements. In one entry, originally posted in 1996, Roland provides quotes from several different court cases, all designed to support the unlawful arrest argument. Among them are the two quotes included in the meme. Here's the first, as outlined by Roland: The first quote does not actually come from Plummer v. State, an 1893 case ruled on by the Indiana Supreme Court. However, Chief Justice James McCabe, in his written opinion, did support the right of an individual to forcibly resist an unlawful arrest, writing: Roland correctly points out that seven years later, the United States Supreme Court unanimously granted a new trial in the case of a man sentenced to death for killing a police officer while resisting arrest (John Bad Elk v. United States, 1900.) This ruling was made on the basis that the trial judge had erred in law by telling the jury that the arrested man (John Bad Elk) had no right to resist arrest, regardless of whether there was a legal justification for his arrest. An individual did have the right to resist an arrest, the court ruled, if there was no legal justification for that arrest. Importantly, the Supreme Court did not exonerate Bad Elk. It did not find that an individual has an absolute right to resist unlawful arrest, nor that any they should be free from criminal culpability for any harm they inflict on a police officer while resisting arrest. This is in contrast to the Plummer case, where Justice McCabe described the act of killing a police officer while resisting an unlawful arrest as justifiable. Indeed, John Bad Elk would have undergone a second murder trial, if he had not died in prison while waiting for it to begin. Roland also discussed the second quotation included in the meme, which states An illegal arrest is an assault and battery. This statement comes from a 1950 Maine Supreme Court case, which revolved around a violent altercation between a Deputy Sheriff named John Gallant and a man named Rodney Robinson, who had been convicted of assaulting Gallant while Gallant was arresting him. In the course of his ruling, Chief Justice Edward F. Merrill wrote: However, Merrill qualified this significantly later in his written opinion, explaining that an individual only had a right to physically resist an unlawful arrest by using force proportionate to the force being used in the arrest. In other words, an individual had no right to physically assault a police officer who had only, up to that point, verbally informed them they were being arrested. Over the second half of the 20th century, the right to resist unlawful arrest was progressively diluted and struck down in courtrooms and legislatures across the country, as documented in a 1997 paper by the lawyer and law professor Andrew Wright. In 1969, for example, Alaska Supreme Court Justice Roger Conner wrote: According to Wright, by 1997 the right [had] gone from the rule to the exception, something he attributed to four major factors and developments in criminal justice and the rights of the accused: We checked the law on resisting arrest in all 50 states, and found only one — North Dakota — whose statute explicitly states that there is a legal defense against conviction for resisting arrest on the basis that the arrest was not lawful. However, even in North Dakota the law stipulates that falsely believing the arrest was unlawful is not a defense. It also stipulates that an arrest is unlawful only if a police officer knowingly violates the law, as opposed to making a mistake in good faith. In 14 states (Arkansas, Colorado, Connecticut, Iowa, Maine, Massachussetts, Missouri, Montana, New Hampshire, New Jersey, Oregon, Rhode Island, Tennessee, Texas) the law explicitly states that the legality of the arrest, or an individual's beliefs about its legality, does not offer a defense against conviction for resisting arrest. In 15 states (Alabama, Florida, Georgia, Indiana, Maryland, Mississippi, New York, Ohio, Pennsylvania, Utah, Vermont, Virginia, Washington, Wisconsin, Wyoming) the law states that it is a criminal offense to resist, specifically, a lawful or authorized arrest. In those states, whether or not you are acting legally by resisting an unlawful arrest will depend on how the courts have interpreted the law, and in many cases there are still prohibitions on using physical force (especially disproportionate force) to resist even an unlawful arrest. In the remaining 20 states, the law prohibits resisting an arrest, without any reference to the legality or illegality of the arrest. In other words, in most of the United States there is absolutely no right to resist an unlawful arrest, and even in the minority of states where the law allows for the possibility of such a right, that right is limited. In practical terms, resisting an arrest — even one you believe to be unlawful — risks provoking a violent retaliation.
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