SCOTUS case where a civilian may resist excessive force by police?
- Thread starter kjm
- Start date
A basic tenet of common law is that nobody is denied the right of self-defense. It is traditional, but it is also been a Supreme Court case where excessive force was used to effect an arrest, the guy resisted, and was charged with the assault w/ intent, but later was overturned by the SCOTUS. They held that there is a reasonable ammount of force that can be used, and exceeding this force (making the apprehendee fear for his life or health) is cause to act in self defense. For instance: an 80 year old man who is wheelchair bound, cops bust in on him and throw him to the concrete floor, and start roughing him up. His wife shoots the cops in fear for the mans life. She is not guilty because the cops were using excessive force (purely fictional and overly dramatic to help illustrate the type of situation involved). These cases are few and far between, but one made it to the SCOTUS, and I am searching for that case, or any case that clarifies the right of self-defense. I already have the Constitution, and writings by Thomas Paine. I could leave it be, but I really want that case!
Brett Bellmore
New member
Perhaps this would be helpful:
http://boalt.org/CCLR/v2hemmensnf.htm
In part it says,
"¶1 At common law an individual had the right to resist an unlawful arrest. This right to resist was based, in large part, on the perception that some unlawful arrests were so provocative that a person, either the subject of the arrest or an onlooker, might react to the attempted arrest without carefully contemplating the consequences of their actions, and that an individual was justified in resisting, by force if necessary, an illegal interference with his liberty.1
¶2 Virtually all American courts adopted the English common law right to resist arrest, although the justification for the right to resist changed slightly, to one based on principles of self-defense.2 In general, American courts in the eighteenth and early twentieth century allowed the use of whatever force was “absolutely necessary to repel the assault constituting the attempt to arrest.”3 The only major restriction on the right was that an arrest made pursuant to a warrant that was later determined to be technically defective could not be resisted by force.4
¶3 The national trend, during the past forty years, has been to do away with the common law right to resist an unlawful arrest. The right has been abrogated by judicial decree5 as well as legislative enactment.6 Elimination of the right is based on several factors, including the development of modern criminal procedure, the ability of criminal defendants to seek redress via other means, and the improvement of jail conditions.7 Several state courts have recently eliminated the right to resist arrest, despite acknowledging the flagrant illegality and provocative actions of the police in the case at hand.8 In the rush to eliminate a right perceived as against contemporary public policy,9 the courts have paid little attention to the original justification for the rule--that an illegal arrest is an affront to the dignity and sense of justice of the arrestee--and instead have focused on the alternatives to forcible resistance that have been developed, such as civil suits and the writ of habeas corpus."
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Sic semper tyrannis!
http://boalt.org/CCLR/v2hemmensnf.htm
In part it says,
"¶1 At common law an individual had the right to resist an unlawful arrest. This right to resist was based, in large part, on the perception that some unlawful arrests were so provocative that a person, either the subject of the arrest or an onlooker, might react to the attempted arrest without carefully contemplating the consequences of their actions, and that an individual was justified in resisting, by force if necessary, an illegal interference with his liberty.1
¶2 Virtually all American courts adopted the English common law right to resist arrest, although the justification for the right to resist changed slightly, to one based on principles of self-defense.2 In general, American courts in the eighteenth and early twentieth century allowed the use of whatever force was “absolutely necessary to repel the assault constituting the attempt to arrest.”3 The only major restriction on the right was that an arrest made pursuant to a warrant that was later determined to be technically defective could not be resisted by force.4
¶3 The national trend, during the past forty years, has been to do away with the common law right to resist an unlawful arrest. The right has been abrogated by judicial decree5 as well as legislative enactment.6 Elimination of the right is based on several factors, including the development of modern criminal procedure, the ability of criminal defendants to seek redress via other means, and the improvement of jail conditions.7 Several state courts have recently eliminated the right to resist arrest, despite acknowledging the flagrant illegality and provocative actions of the police in the case at hand.8 In the rush to eliminate a right perceived as against contemporary public policy,9 the courts have paid little attention to the original justification for the rule--that an illegal arrest is an affront to the dignity and sense of justice of the arrestee--and instead have focused on the alternatives to forcible resistance that have been developed, such as civil suits and the writ of habeas corpus."
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Sic semper tyrannis!
Hey Guys,
How about this from NJ Law! Section 2C:3-4(1) "The use of force is not justifiable under this section: (a) To resist an arrest which the actor knows is being made by a peace officer in the performance of his duties, although the arrest is unlawful, UNLESS THE PEACE OFFICER EMPLOYS UNLAWFUL FORCE TO EFFECT SUCH ARREST;" Wow, this in the People's Republic of New Jersey. Will wonders never cease.
How about this from NJ Law! Section 2C:3-4(1) "The use of force is not justifiable under this section: (a) To resist an arrest which the actor knows is being made by a peace officer in the performance of his duties, although the arrest is unlawful, UNLESS THE PEACE OFFICER EMPLOYS UNLAWFUL FORCE TO EFFECT SUCH ARREST;" Wow, this in the People's Republic of New Jersey. Will wonders never cease.
Is that like serving a warrant for not paying a $200 class 3 tax with two cattle trailers full of ATF JBTs?
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Tonkin Gulf Yacht Club
68-70
true story, a Union Gen. once said "Don't worry about those Rebs. They couldn't hit an elephant at this dist..SPLAT.
[This message has been edited by TexasVet (edited October 26, 2000).]
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Tonkin Gulf Yacht Club
68-70
true story, a Union Gen. once said "Don't worry about those Rebs. They couldn't hit an elephant at this dist..SPLAT.
[This message has been edited by TexasVet (edited October 26, 2000).]
Texvet,
Exactly! It could also be applied to a situation where a man illegally manufactures a short-barreled shotgun (of course you bein' a 'Nam vet & all, you probably agree that the SC was right when they said a SB SG was useless military wise
), and the ATF, FBI, US Marshalls service trespass, surveil, and shoot his son, his dog, his best friend, his wife, and then spend a gazillion taxpayer dollars trying to get that $200.00 tax paid!
Exactly! It could also be applied to a situation where a man illegally manufactures a short-barreled shotgun (of course you bein' a 'Nam vet & all, you probably agree that the SC was right when they said a SB SG was useless military wise
), and the ATF, FBI, US Marshalls service trespass, surveil, and shoot his son, his dog, his best friend, his wife, and then spend a gazillion taxpayer dollars trying to get that $200.00 tax paid!About five or six years ago a guy took the gun of a Denver cop and shot him to death as the officer was beating him so severely and was in fear of his life. He was found not guilty by a jury to the outrage of the police dept, etc.
Don't remember the name of the accused or the date of the incident. We had just moved here in 1994. A call to the Rocky Mountain News or Denver Post might get some info.
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Gun Control: The proposition that a woman found dead in an alley, raped and strangled with her own panty hose, is more acceptable than allowing that same woman to defend herself with a firearm.
Don't remember the name of the accused or the date of the incident. We had just moved here in 1994. A call to the Rocky Mountain News or Denver Post might get some info.
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Gun Control: The proposition that a woman found dead in an alley, raped and strangled with her own panty hose, is more acceptable than allowing that same woman to defend herself with a firearm.
Art Eatman
Staff in Memoriam
Dennis, you'll have to look in Vernon's Annotated Civil Statutes (V.A.C.S.). I was remiss in not writing down the Section numbers when I read it.
Briefly, it speaks to unlawful arrest, and to use of excessive force. It speaks to levels of resistance--you can't arbitrarily jump up and used deadly force except in self-defense...
I haven't checked "Findlaw" on this.
Regards, Art
Briefly, it speaks to unlawful arrest, and to use of excessive force. It speaks to levels of resistance--you can't arbitrarily jump up and used deadly force except in self-defense...
I haven't checked "Findlaw" on this.
Regards, Art
Drat! I had it right in front of me all the time. 
Texas Penal Code 9.31 with references to 9.32 thru 9.34.
I would sure hate to have to justify (in court) my force against an officer acting in
the line of duty - or even OFF-duty!
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Obviously this is NOT a Supreme Court decision. (I continue the search.)
Texas Penal Code 9.31 with references to 9.32 thru 9.34.
I would sure hate to have to justify (in court) my force against an officer acting in
the line of duty - or even OFF-duty!
=====
Obviously this is NOT a Supreme Court decision. (I continue the search.)
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by jimpeel:
About five or six years ago a guy took the gun of a Denver cop and shot him to death as the officer was beating him so severely and was in fear of his life. He was found not guilty by a jury to the outrage of the police dept, etc.
[/quote]
Much further back, a man in San Diego was acquitted of murdering two San Diego police officers because he managed to convince the jury he was afraid the two officers were going to kill him.
There was some evidence the first officer he killed had been beating him. The second officer he killed was a backup officer and who had just gotten out of his car as I remember. The third person he shot was a police dispatcher, a ride-along with the backup officer. The dispatcher never got out of the car.
My recollection is shaky at best. It happened so long ago. Perhaps fifteen years.
About five or six years ago a guy took the gun of a Denver cop and shot him to death as the officer was beating him so severely and was in fear of his life. He was found not guilty by a jury to the outrage of the police dept, etc.
[/quote]
Much further back, a man in San Diego was acquitted of murdering two San Diego police officers because he managed to convince the jury he was afraid the two officers were going to kill him.
There was some evidence the first officer he killed had been beating him. The second officer he killed was a backup officer and who had just gotten out of his car as I remember. The third person he shot was a police dispatcher, a ride-along with the backup officer. The dispatcher never got out of the car.
My recollection is shaky at best. It happened so long ago. Perhaps fifteen years.
paratrooper
New member
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by madkiwi:
I believe a man in Florida was charged with murder after shooting a black-clad, masked police officer, executing a no-knock warrant. It was the wrong house. He was aquitted in a jury trial.
Madkiwi[/quote]
I think it was a travesty that it even got to trial .Any judge with an ounce of sense could have seen the facts and dismissed it .
I believe a man in Florida was charged with murder after shooting a black-clad, masked police officer, executing a no-knock warrant. It was the wrong house. He was aquitted in a jury trial.
Madkiwi[/quote]
I think it was a travesty that it even got to trial .Any judge with an ounce of sense could have seen the facts and dismissed it .
I lost he paper to this case ,sorry.
Turn of the centery in AZ a man I think of Indian or Spainish desent killed a law officer who was arresting him using excessive force.The case went to the supreme court and he was found innacent of murder by reason of self defence.
I sure wish I could find the paper again.If I do I will post it.
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Bob--- Age and deceit will overcome youth and speed.
I'm old and deceitful.
Turn of the centery in AZ a man I think of Indian or Spainish desent killed a law officer who was arresting him using excessive force.The case went to the supreme court and he was found innacent of murder by reason of self defence.
I sure wish I could find the paper again.If I do I will post it.
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Bob--- Age and deceit will overcome youth and speed.
I'm old and deceitful.
Like Bob, I read of that case that the supremes heard and acquited on. Have been lookin and I can't find it either.
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Sam I am, grn egs n packin
Nikita Khrushchev predicted confidently in a speech in Bucharest, Rumania on June 19, 1962 that: " The United States will eventually fly the Communist Red Flag...the American people will hoist it themselves."
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Sam I am, grn egs n packin
Nikita Khrushchev predicted confidently in a speech in Bucharest, Rumania on June 19, 1962 that: " The United States will eventually fly the Communist Red Flag...the American people will hoist it themselves."