Is it right to resist an unlawful arrest?

yeh yeh here you go, this is how totally screwed up american law is.

You gotta be thrown in jail to be acknowledged as non consenting. nice


The privilege against self-incrimination is neither accorded to the passive resistant, nor the person who is ignorant of his rights, nor to one indifferent thereto. It is a fighting clause. Its benefits can be retained only by sustained combat. It cannot be claimed by attorney or solicitor. It is valid only when insisted upon by a belligerent claimant in person. McAlister v. Henkel, 201 U.S. 90, 26 S.Ct. 385, 50 L.Ed. 671; Commonwealth v. Shaw, 4 Cush. 594, 50 Am.Dec. 813; Orum v. State, 38 Ohio App. 171, 175 N.E. 876. The one who is persuaded by honeyed 541*541 words or moral suasion to testify or produce documents rather than make a last ditch stand, simply loses the protection. Once he testifies as to part, he has waived his right and must on cross examination or otherwise, testify as to the whole transaction. He must refuse to answer or produce, and test the matter in contempt proceedings, or by habeas corpus. The holdings in the cases of this type cited by defendant are sound, but they do not apply here because Memolo did not resist, he acquiesced. Likewise, he did not have himself held in contempt or arrested for refusal. Furthermore, he had the documents in his possession and returned them. Finally, he did testify as to such matters many times before this grand jury and now expressly waives the privilege against self-incrimination as to this testimony.

us v johnson

welcome to the desert of the real kids

 

But it is not up to the person being arrested if their arrest is unlawful or not. It is up to the judge.

 

Or the jury. I probably didn't make my point clearly but what I meant to say was that until a court finds guilt then everything is just an allegation. But wait, there's more.

In terms of the common law everyone had and has a right to resist an unlawful arrest.

Here comes Catch-22 - it's only justified post facto.

An arrest is, prima facie, lawful, it has to be or the system would fall over. Arrest is only a procedure, a means of putting someone before a court, it's not a penalty or judicial process of itself.

Maybe I could use an example to illustrate.

Person A is arrested. Person A thinks, "bugger this, I'm innocent, but wait a minute, these coppers are armed and are experts in the use of force, I think I'll shut up, cooperate and have my day in court........AFTER GETTING A LAWYER).

Person B is arrested and thinks, "bugger this, I'm innocent, I'll show these bastards I won't go easily...."

Later on Person A is acquitted or charges are dropped. Person A then goes back to their lawyer and they begin to compile a suit for unlawful arrest. I see dollars in their future.

When Person B gets out of intensive care and eventually goes home and is then tried and found not guilty (or a nolle is entered) then Person B sues. More compensatory and punitive damages are awarded because of the injuries but poor old B will never play the piano again because of his hands.....I see dollars in his future...... as well as years of physical therapy.

The idea of unlawful arrest allows the victim to sue. The right to resist an unlawful arrest is exculpatory to a criminal charge of resist. If the arrest is lawful there are no grounds for a suit (provided there was no unreasonable use of force). If an arrest is unlawful then whether or not someone resists is only relevant in that it provides a defence to a charge of resist (and bear in mind that in many jurisdictions the offence is "resisting police in the execution of their duty" and not merely "arrest", so beware of the potential wide sweep of that charge.