Since murder is a horrible wrong, preventing a murder must be a good thing, right? Truth be told, it can get complicated. Among the many questions raised by the killing of George Floyd, we should pause to consider what would have happened if a bystander had actually been successful in rescuing Floyd from the knee of Officer Derek Chauvin. It is scary to contemplate since it is no leap to say that had a bystander responded to Floyd’s desperate plea for air and rushed forward to push Chauvin off of his prostrate prisoner, that bystander would have been beaten, perhaps tasered, and then arrested himself. It ought to disturb us that our hypothetical Good Samaritan would now be in jail while Chauvin and his fellow officers would not only be free but still wielding police powers over others in the Minneapolis community. In this article, I want to briefly examine the law surrounding the right of both bystanders and victims to resist unlawful police arrests.
The Modern Movement Away from Magna Carta
The right to resist an unlawful arrest predates the American Constitution. The right can be traced back to 1215 when King John’s power was subordinated to the law of Magna Carta, by force, at Runnymede. The overarching point of that historic confrontation was that when the king or his agents step outside the law, the people can resist—even with the force of arms.
With respect to court precedents, one scholar, writing in The Yale Law Journal, traced the right to resist illegality to Hopkin Huggets Case in 1666. That case involved several bystanders who rescued a man who was being illegally arrested by a constable. Here is a snippet from the ruling:
If a man be unduly arrested or restrained of his liberty by three men, altho’ he be quiet himself, and do not endeavor any rescue, yet this is a provocation to all other men of England, not only his friends but strangers also for common humanity sake…to endeavor his rescue.
The spirit of that holding would have been praised by the American Revolutionaries because they believed liberty ought to be jealously guarded by citizens and supported by law. Arbitrary arrests or arrests outside of the legal process were considered affronts and “provocations” and ought not to be excused. As the decades passed, the courts would refine the parameters of the right and caution would-be resisters that they acted at their own legal peril. If, after an incident, a court found an arrest to be lawful, the resister could face stiff punishment, even execution, if there was any loss of life.
There is no dispute that the right to resist an unlawful arrest was firmly entrenched in American law prior to, and following, the adoption of the Constitution. Indeed, as late as 1948, the U.S. Supreme Court would remark, matter-of-factly, “One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases.”
The first academic criticism appeared in the 1920s when one writer claimed the right had “glorified” personal liberty. More articles appeared that said since societal conditions had changed, there was no longer a good reason to adhere to the ancient common law right. A 1999 law review article summarized the modern trend:
The publication of the Model Penal Code in 1962, a spate of academic criticism in the late 1960s, and the abandonment of the right by several influential state courts led to a widespread effort to eliminate the right to resist unlawful arrest. In 1965, the New Jersey Court of Appeal was the first court to strike down the right through judicial decision, a watershed decision that reinvigorated the movement towards elimination of the right. By 1975, five more states eliminated the right … The pace of change then rapidly increased, as presently thirty-nine states have eliminated the common law right—twenty-three by statute and sixteen by judicial decision.
George Floyd’s home state of Minnesota is among the states that have eliminated the right to resist an unlawful arrest.
An Illustrative Modern Case: State v. Hobson
A modern state case that is worth examining in some detail arose in Wisconsin, State v. Hobson. The case began with a complaint about a stolen bicycle. Officer Nathan Schoate was trying to help a neighborhood juvenile find his bike. The juvenile was in the patrol car with Schoate when he pointed to a 5-year old, and exclaimed, “that’s the boy who was on my bike.” As the officer exited his car and approached, the little boy went inside his home.
Schoate met the boy’s mother, Ms. Shonna Hobson, just outside her home, and he explained that he needed to speak with her boy about a stolen bicycle. Hobson said her boy had done nothing wrong and that he had his own bike. Schoate said he would have to take the boy to the station to sort it all out, and that she could accompany her son. Irritated and upset, Hobson replied that the police were not going to take her little boy anywhere.
Schoate radioed for “backup.”
Within minutes, more police officers arrived on the scene. Because Hobson refused to let the police question her son, the police declared that she was now under arrest for “obstruction.” As the officers moved closer to put her in handcuffs, Hobson pushed one officer away and slapped another. The officers took the mother to the ground, where she kept resisting until she was finally handcuffed and then transported to the police station.
Over the next few days, prosecutors reviewed the case and evidently concluded that they should throw the proverbial “book” at Hobson. The mother was charged with four offenses: (1) obstruction; (2) disorderly conduct; (3) resisting an officer; and (4) battery to a peace officer. The battery count, by itself, is a felony charge.
Later, after hearing arguments from both the prosecution and the defense, the trial court was rendered incredulous by Officer Schoate’s demands to confront a 5-year old boy with questions. The court found Hobson’s arrest to be illegal, and that she had the right, under Wisconsin law, to resist her illegal arrest. The entire case was dismissed prior to trial.
The state appealed the case to the Wisconsin Supreme Court, challenging the basis for the dismissal. Prosecutors argued that Wisconsin law did not recognize the right to resist, but even if it did, the court should follow the modern trend and abrogate (e.g. eliminate) the right.
The Wisconsin Supreme Court held that although the right to resist an unlawful arrest was the law in that state, it should no longer be recognized. To be fair to Shonna Hobson, the court’s ruling would only apply prospectively. Thus, the case against Hobson ended without a trial, but another adverse legal precedent had been set.
In order to better understand the debate over the right to resist, it will be useful to examine the rationale offered by the Wisconsin court because it is illustrative of the problems with the modern trend.
To begin, the court greatly underestimated what was at stake. The modern critique is built upon the non-controversial proposition that nonviolent dispute resolution is intensely desirable. From that idea, the court asks, why should the law tolerate futile, impulsive violence from citizens– even in situations where officers have overstepped the bounds of their office? Here is a snippet from the majority opinion:
We feel that the legality of a peaceful arrest should be determined by courts of law and not through a trial by battle in the streets. It is not too much to ask that one believing himself unlawfully arrested should submit to the office and thereafter seek his legal remedies in court. Such a rule helps to relieve the threat of physical harm to officers who in good faith but mistakenly perform an arrest, as well as minimize harm to innocent bystanders. The old common law rule has little utility to recommend it under our conditions of life today.
With that, the first principles of Western legal thought were catastrophically undermined.
Since the Magna Carta, the foundational idea has been that power is subordinate to law. We hear this in our political discussions today when legislators and editorialists cry out that our president is not “above the law.” The same idea applies to all government employees, including the police. As Washington State Supreme Court Justice Robert Sanders observed in a 1997 dissent, when state courts forbid lawful resistance, the effect is perverse because it “specially privileges government agents in the wrong to the prejudice of citizens in the right.”
For hundreds of years, our political philosophy has been that the police derive their authority from the law, not because they wear distinctive clothing or carry a special badge. Absent a warrant or exigent circumstances, a landowner can order the local sheriff off the premises just as he could an uninvited neighbor. In America, the government and the citizenry are supposed to be on one equal legal plane. There is a mutuality of obligation: Both must abide by the law. In Shonna Hobson’s case, the trial judge noted that since her arrest was illegal, the police officers initiated the violence and assaulted her. Thus, in his legal analysis of the case, Hobson’s response to the assault was self-defense, not “criminal battery.” Alas, as noted, that trial court ruling for Hobson was later overturned. A Wisconsin mother engaging in the very same actions to protect her boy today could end up in prison.
Some jurists argue that nothing momentous has occurred. In fact, they claim the law is advancing and becoming more civilized than the rules of yesteryear. The argument runs something like this: Times have changed! Our jail conditions have greatly improved so spending a few hours or days in the city lockup as bail is arranged is not such a burden. And since the courts will still decide when the police acted lawfully or unlawfully, the police power remains subordinate to law.
The problem with that claim is that it treads the boundary between naivete and mendacity. Whichever it is, the argument cannot withstand scrutiny. It is like saying that since rifles can be used as clubs, it follows that rifles without ammunition are just as effective in battle as rifles with ammunition.
One must remember that judges do not accompany police officers as they patrol communities. A court can only react to a lawsuit that has been filed. Lawsuits are time-consuming and costly. Lawyers are understandably reluctant to take cases without the prospect of money damages that make the effort worthwhile. Ask any attorney committed to defending civil rights and civil liberties about the economics of pursuing complaints about police abuses. Any college student should be able to grasp the daunting nature of the situation. File a lawsuit over an illegal 2-hour detention? Take an illegal car search to a jury? The price is not worth the candle, as they say.
Even with cases involving personal injuries, there are “He said/Officer said” discrepancies that will arise at trial. And various legal doctrines, such as qualified immunity, pose formidable obstacles to any legal vindication. And when there is a monetary award, the repercussions are usually noted by only a handful of lawyers and middle managers in the city’s treasury department, who cut a check many years after the incident took place. All too often, there is no serious feedback loop to the culpable agents, who might now be corporals, sergeants, or lieutenants.
Since hundreds of thousands of police-citizen encounters will never be the basis of a lawsuit that gets filed and litigated, the new legal regime invests enormous power in police agents. This regime represents a calamity for a free citizenry. That is because wherever the rule of resisting illegality has been extinguished, liberty no longer rests upon the law, but merely upon discretionary police restraint. If that sounds like the way things work in certain foreign countries, the problem is becoming apparent.
Try to imagine living in a city where the source of police power is derived from the uniform, not the law. Police orders, no matter how arbitrary, have the force of law. Imagine, for example, that two patrolmen stop a man on his way to work one morning and order him to get down on the sidewalk for a pat-down. “What for?” he says. To which the officer replies, “Because I said so!” When the officer moves to take him to the ground because he is moving too slowly, the man pushes him away, and he is then tackled by the other officer. Under the modern rules, the man can be prosecuted for resisting an illegal arrest.
The absurdity of the initial stop or arrest becomes irrelevant to the subsequent arrest for “obstruction,” however mild the resistance may be. Say two policemen, irritated with a waitress at a restaurant, declare that she’s under arrest for prostitution. Outraged, she tells them to “go to hell.” If she pushes them away, she can be prosecuted for resisting arrest, whether the initial arrest was legal or not. And any bystander who comes to her defense is similarly at risk of arrest, prosecution, and imprisonment for obstructing the police. Judge Sanders is correct to liken the modern rule to entrapment: “It was only the injustice of the police misconduct that induced the outraged victim to resist.”
Americans who live and work in the nicer neighborhoods are puzzled by the cries of police harassment that come from the poorer neighborhoods. They do not yet understand that their liberty does not rest upon the law as much as it does upon discretionary police restraint. In his book, The Rights of the People, David Shipler, the Pulitzer prize-winning author, recounted the many hours he spent with a District of Columbia police unit that drove the streets of the capital at night. He was “stunned” by what he witnessed when the police cars rolled up on groups of black teenagers. The teens already knew the drill: “They raised their hands. Then they pulled up their T-shirts to show that no guns were tucked in their waistbands.” Over and over again, Shipler saw “black men who were sitting on stoops, strolling the sidewalks, or standing on corners just lifted their T-shirts when a squad of policemen approached.” Using their discretionary powers, the police have employed aggressive “stop and frisk” and “jump-out” tactics in poor neighborhoods to combat the crime there. Shipler found a sad, even depressing, servility among people treated as second-class citizens. In his words, what was distressingly common was the “sullen expressions of men long abused by surly cops.”
Consider, again, the hypothetical Good Samaritan, mentioned earlier, who decides to rush Officer Derek Chauvin to save George Floyd’s life. In this scenario, Floyd gets the air he needs and lives while the bystander is beaten up and then prosecuted for obstruction and battery. In the absence of cell phone video evidence showing what really happened, there’s nothing on the evening news and thus no protests. Just another day in the city. And yet, as word spreads around the neighborhood concerning what actually happened, the resentment keeps simmering over unreported, unaddressed police abuses.
“Oppression” sounds like hyperbole, but it is a genuine phenomenon that is experienced in certain pockets of our country. The good news is that cell phone videos are, slowly but surely, building a mountain of irrefutable evidence. Some Floyd protesters have carried signs asking, “What about the Floyds that were not recorded?” It’s a fair question, a question that our political leaders are only now taking seriously.
Fortunately, the overwhelming majority of Americans detest injustice. Whenever it is discovered, they want it corrected. To paraphrase the case from 1666, the killing of George Floyd was a provocation to all Americans for common humanity’s sake. As more abuses occur, the cell phone video evidence will keep exerting pressure on police bureaucracies and city hall politicians to take corrective action. This is welcome news, of course, however belated.
Prospects for Reform
Federal and state policymakers are now considering a variety of reform measures for American policing. For the reasons outlined above, restoring the right to resist police illegality ought to be at the top of the reform agenda.
At first blush, such an idea would appear unrealistic, a flight of fancy, a nonstarter. Especially after the recent incidents of looting, some will surely twist the idea into some sort of anarchic call for violence and disorder. And yet, the politics may be more favorable than many realize. When the Indiana Supreme Court followed the modern trend and abrogated the right to resist an illegal search in 2011, it did not pass unnoticed. The decision touched off a state-wide debate and hundreds of citizens protested and demanded that the right to resist illegality be restored. Over the strenuous objections of national and local police unions, Republican Governor Mitch Daniels signed a restoration measure with broad bipartisan support.
Senator Tim Scott (R-S.C.), who is sponsoring a federal reform bill, should study the Indiana measure and formulate a model federal bill that state lawmakers can emulate. In these highly charged times, the message should be crystal clear. A reform bill wouldn’t be about any desire to resist illegal police power—that’s always a last resort. The idea is to subordinate power to law and to shield innocent citizens from provocations and entrapment. The overarching idea is equality under the law. Those are legal principles that every patriotic American can recognize and support.
Tim Lynch is an attorney specializing in criminal law reform and constitutional criminal procedure. He writes often on subjects relating to law and liberty. He welcomes reader feedback at legalgadly@gmail.com.
Suggested citation: Tim Lynch, A Knee on All Americans, JURIST – Academic Commentary, July 2, 2020, https://www.jurist.org/commentary/2020/07/tim-lynch-knee-on-all-americans
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org
