Punching the back of the neck is acceptable detainment techniques for LEO's?

[Sukerkin]

As we've moved on from the OP more than a little, I hope people don't mind if I rejoin the discourse with a couple of questions (I'd dropped out as I was simply failing to make my point clearly and was having an adverse affect on the discussion)?

First, what on earth is a 'hoosegow'? I'm guessing from context it means the Police Station?

Second, altho' as someone far away I can see the common sense in not allowing resisting unlawful arrest to be legal, isn't it rather an undermining of the intent of the tone of the Constitution?

After all, it does seem that it could be very easily abused to quash dissent and facilitate 'visible disappearances' of those who oppose the government of the day.

Fictional re-enactment :-

Officer:"He resisted arrest M'lud.
Judge: "Was it a lawful arrest?"
Officer: "No M'lud"
Judge: "Ah well, it wasn't a 'lawful' arrest but the defendant did resist. Off to prision with him. What's that Mr. Reporter? No, he committed no crime. He's not in prison for holding a dissenting opinion (honest, fingers crossed) but for resisting arrest".

 

[Bill Mattocks]

First, what on earth is a 'hoosegow'? I'm guessing from context it means the Police Station?

The pokey.

http://www.bartleby.com/62/38/H0753800.html

Second, altho' as someone far away I can see the common sense in not allowing resisting unlawful arrest to be legal, isn't it rather an undermining of the intent of the tone of the Constitution?

The Constitution (and more specifically, the Bill of Rights) is intended to prohibit, amongst other things, the federal government from unlawful search and seizure, from infringing on due process, and from preventing citizens from seeking peaceful redress under the law. None of these are threatened by prohibiting citizens from resisting unlawful arrest.

After all, it does seem that it could be very easily abused to quash dissent and facilitate 'visible disappearances' of those who oppose the government of the day.

To the best of my knowledge, there are no disappearances in our legal system. A person is arrested, charged, given access to defense, and if convicted, perhaps they are sentenced to a period of confinement. At all times in this process, they have access to the law and the ability to address the government for redress of grievances. Many are the convicted person who makes a veritable lifetime of appealing everything and suing all and sundry - sometimes with success.

Dissent is hardly quashed.

Fictional re-enactment :-

Officer:"He resisted arrest M'lud.
Judge: "Was it a lawful arrest?"
Officer: "No M'lud"
Judge: "Ah well, it wasn't a 'lawful' arrest but the defendant did resist. Off to prision with him. What's that Mr. Reporter? No, he committed no crime. He's not in prison for holding a dissenting opinion (honest, fingers crossed) but for resisting arrest".

It is not uncommon for the term 'resisting arrest' to be applied. Some police officers will levy the charge if a person so much as says "Now just hold on a minute here," when being arrested, while others won't place that charge unless you actively take a poke at them or try to run away. So if you want to say that it is often used inequitably, I'll give you that.

However, 'resisting' is generally not an offense that gets one sent to durance vile - usually a fine and perhaps at worst a few days in the lockup or doing community service for first offenders.

Common law said that resisting unlawful arrest was legal - and for good reasons at the time. Resisting in the first place was not likely to get the officer or you killed - now it is. And there might not be recourse to correct false arrests and bad warrants and just plain stupid cops tricks like there is now. Citizens can no longer resist even unlawful arrest because they DO have recourse to the law after the fact, which is MUCH SAFER for all concerned.

It does vary from state to state. But most states say you can't do it. It appears that Mississippi still says you can. So there you go.

 

[Sukerkin]

I wasn't intending it to be taken and carried in such absolutes, Bill. You have shown above that you have a pretty high level of education and so do I. I'm sure both of us can recognise an invitation to explore a hypothetical question.

What I mean by the term 'visible disappearances' is not that someone is secretly whisked away never to be seen again but rather that the 'loophole' presented by the illegality of resisting arrest can be used to quite openly imprision someone who has actually committed no other crime. A useful tool for getting people out of circulation if the government were to so wish (assuming that it didn't just disappear them the old fashioned way ).

 

[Archangel M]

Just remember there is a difference between an "unlawful arrest"...the cop knows or should know that the arrest is unlawful and a lawful arrest where the offender may actually be innocent.

 

[Carol]

Just remember there is a difference between an "unlawful arrest"...the cop knows or should know that the arrest is unlawful and a lawful arrest where the offender may actually be innocent.

If its actually a cop that is doing unlawful arrest...

"In most unlawful arrest or imprisonment cases, private security is involved. While the law in California allows for any private person to make a “citizen’s arrest”, there are restrictions and limited authority to do so."

Paul W. Ralph, Esq. (Tort Attorney, Orange County, CA)

 

[Archangel M]

If its actually a cop that is doing unlawful arrest...

"In most unlawful arrest or imprisonment cases, private security is involved. While the law in California allows for any private person to make a “citizen’s arrest”, there are restrictions and limited authority to do so."

Paul W. Ralph, Esq. (Tort Attorney, Orange County, CA)

Very true.

 

[GBlues]

Tell YOU what "sunshine" that sentence alone tells me that you dont know squat about what you are talking about. That is one of the most misunderstood (by the masses) things about police work out there. I typically hear it from smartass teenagers or clueless "jailhouse lawyers"

Let me guess..you think that if I dont read you Miranda rights then somehow you get to walk away from all charges right? Puaghhahah!

I dont HAVE to do any such thing.

If you are under arrest AND I want to question you (and I want to use what you say) THEN I have to read you Miranda. If you are free to go OR if I dont want to question you then no Miranda is required (hell I've probably only Mirandized 1-5% of any of my arrests).

Every clueless loudmouth that whines "you didnt read me my rights!" Gets the reply..."You have the right to remain silent....NOW USE IT!"

Miranda Rights for Idiots

So then your saying that Bill Mattocks doesn't know squat about what he's talking about either right? Since he was the one who first used the "Sunshine" Course I wasn't that disrespectful to him until he started that **** with me.

 

[Twin Fist]

dude, you ae in check, you lost this argument, just let it go, dont get your ego get you into trouble on the boards.

 

[Bill Mattocks]

Just remember there is a difference between an "unlawful arrest"...the cop knows or should know that the arrest is unlawful and a lawful arrest where the offender may actually be innocent.

Good point.

In addition, one must consider cases where the warrant or other cause to arrest is deficient, but the police do not know that and act in good faith. Felony warrants that remain in NCIC long after they are revoked, for example. An officer is going to make an arrest if a subject comes back with a code 5 frank hit. However, if that later turns out to be incorrect info, the subject arrested could well have recourse to civil remedy.

They still have to submit to arrest - if they resist (in most states), they get 'resisting arrest' added to the charges, and that could stick even if the want turns out to be incorrect.

 

[Bill Mattocks]

So then your saying that Bill Mattocks doesn't know squat about what he's talking about either right? Since he was the one who first used the "Sunshine" Course I wasn't that disrespectful to him until he started that **** with me.

Actually, when I used the term 'sunshine', I was speaking as if to an imaginary subject I was arresting, I did not mean you. If you felt I did mean it personally, I apologize.

 

[redantstyle]

hmmm....the internets.

the advantage, i feel, is that you can speak your mind with what amounts to absolute strangers, and get a candid response.

free and clear of the emotional context.

which is nice.

 

[jks9199]

You're just wrong Bill.

Citizens do have the right to resist unlawful or illegal arrest. That right has been upheld by courts throughout our history, up to and including the supreme court.



When an officer is acting ouside the boundaries of the law, citizens are not obligated by that law to allow themselves to be manacled and transported to crime scene B.

Now, all that aside, when Officer Bill comes to my door to arrest me, unless I think my life is in imminent danger, I'll be going with him peacefully. Because someone gave him a gun and a badge and limited, insufficient training, and told him to go enforce laws he doesn't fully understand and he's already made it perfectly clear that if I don't abide by his unlawful demands, he'll torture me until I do.


-Rob

Yes, you may resist an unlawful arrest. It's an affirmative defense against a charge of resisting arrest...

But the odds are very good that you'll still end up in jail for the night, and be hurt, too. And you'd better be damn sure that you are right, and that the arrest really is unlawful. Because, even if it turns out that the cop was wrong, the charge of resisting arrest can still be valid. And you can still be convicted of it. As has been said several times, the standard for arrest is probable cause, not proof beyond a reasonable doubt.

Or you can simply accept the circumstances, and deal with the problem later. It may not even be much later; I have to take anyone I arrest before a magistrate without undue delay. The magistrate's job is to independently assess my probable cause for the arrest -- and he'll cut you loose if I don't have it.

 

[Bill Mattocks]

Yes, you may resist an unlawful arrest. It's an affirmative defense against a charge of resisting arrest...

I'd be careful with that one. Having an 'affirmative defense' does not mean that the behavior is legal - it means that one may prevail in court on that basis. The person would still be arrested, charged, and possibly end up in court, with lawyer, etc - expending a great deal of time and energy to argue that the arrest was unlawful, and that therefore their resistance was an 'affirmative defense'.

It appears you're in Virginia, so I did some poking around. It would appear that in VA, the law regarding 'resisting arrest' does indeed say 'lawful arrest':

§ 18.2-479.1. Resisting lawful arrest; penalty.

A. Any person who intentionally prevents or attempts to prevent a law-enforcement officer from lawfully arresting him, with or without a warrant, is guilty of a Class 1 misdemeanor.

B. For purposes of this section, intentionally preventing or attempting to prevent a lawful arrest means fleeing from a law-enforcement officer when (i) the officer applies physical force to the person, or (ii) the officer communicates to the person that he is under arrest and (a) the officer has the legal authority and the immediate physical ability to place the person under arrest, and (b) a reasonable person who receives such communication knows or should know that he is not free to leave.

(2003, cc. 112, 805.)

However, it appears that there is a similarly-worded crime that does not require the arrest to be 'lawful':

§ 28.2-905. Resistance to officer or authorized person, etc.; penalty.

Any person found guilty of resisting or impeding an officer or other person authorized to make arrests, seizures, examinations or other performances of duties under this subtitle, shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 28-215; 1962, c. 406, § 28.1-191; 1992, c. 836.)

So it would seem the charge could be amended to "Resistance to Officer" as opposed to "Resisting Arrest" and it would stick, lawful arrest or not.

I could not find any Virginia court rulings on the issue. It apparently has been asserted as a defense in a number of cases, but in each case, the issue was decided on other basis, and the court never actually addressed the common-law right of the defendant to resist an unlawful arrest.

If there is case law on it, I'd be interested in seeing it. I'm not saying there isn't, I am just fascinated.

One might also note that this is for Virginia - other states do indeed have laws specifically forbidding resisting arrest, period - there is no affirmative defense for resisting an unlawful arrest.

But the odds are very good that you'll still end up in jail for the night, and be hurt, too. And you'd better be damn sure that you are right, and that the arrest really is unlawful. Because, even if it turns out that the cop was wrong, the charge of resisting arrest can still be valid. And you can still be convicted of it. As has been said several times, the standard for arrest is probable cause, not proof beyond a reasonable doubt.

Agreed.

Or you can simply accept the circumstances, and deal with the problem later. It may not even be much later; I have to take anyone I arrest before a magistrate without undue delay. The magistrate's job is to independently assess my probable cause for the arrest -- and he'll cut you loose if I don't have it.

Accepting unlawful arrest not only protects your body and peace of mind, it can also set a person up for a nice little lawsuit that will compensate them for the damage done. There is recourse to unlawful arrest - but the more the arrestee makes a horse's *** of themselves at arrest time, the less clear-cut their civil case is likely to be later on - IMHO.

 

[Carol]

Accepting unlawful arrest not only protects your body and peace of mind, it can also set a person up for a nice little lawsuit that will compensate them for the damage done. There is recourse to unlawful arrest - but the more the arrestee makes a horse's *** of themselves at arrest time, the less clear-cut their civil case is likely to be later on - IMHO.

This makes sense to me. In my business networking group, whenever someone presents an issue at work that seems illegal or borderline, the response from the group is always "Document, document, document".

If a bad situation is documented by the person who feels they've been wronged, that person can get far more mileage by documenting the issue and then following up through administrative channels than they will if they lose their cool.

 

[MJS]

You're just wrong Bill.

Citizens do have the right to resist unlawful or illegal arrest. That right has been upheld by courts throughout our history, up to and including the supreme court.



When an officer is acting ouside the boundaries of the law, citizens are not obligated by that law to allow themselves to be manacled and transported to crime scene B.

Now, all that aside, when Officer Bill comes to my door to arrest me, unless I think my life is in imminent danger, I'll be going with him peacefully. Because someone gave him a gun and a badge and limited, insufficient training, and told him to go enforce laws he doesn't fully understand and he's already made it perfectly clear that if I don't abide by his unlawful demands, he'll torture me until I do.


-Rob

If we apply the above to the thread here, we really don't know what led up to the cops being called in the first place. However, it seems the person in question needed to be removed, for reasons we don't know, and he resisted. Badge, gun and crooked cops aside, this guy was being an ***, plain and simple. I will repeat though, that I personally feel that the cops should have used the other options they had available to them, ie: OC and taser.

 

[Thesemindz]

The first part of your post all assumes that somehow states or lower court rulings could over rule a supreme court decision. You say you have some education in law. Can you describe to me a process by which state legislatures and lower courts can abrogate a Supreme Court ruling?

All that aside, it's simply pointless. Regardless of the legality of the situation, if police continue to violate the rights of citizens, whether under color of law or not, there will be a violent response. It will happen. You may feel that you have the authority to arrest people and beat them mercilessly if they don't comply. That attitude will get police shot.

Yes, they are. I presume by "crime scene B" you mean the hoosegow.

No actually. That isn't what I mean. Since my entire point related to unlawful arrest, there is no telling what crime scene B will be. It could be jail. It could be a cabin in the woods where you are tortured and raped. But I suppose if a police officer grabs a woman at gun point and tells her to put the cuffs on and get in the car so he can go torture and rape her, she doesn't have any right to resist. After all, she can file a complaint later.

Ah yes. Arrest = torture. I see.

Obviously you don't. Arrest doesn't necessarily equal torture, but these things might.

I'll stick my Manodnock up your jaxie and make you a perpsicle.

even if I had to twist your head around three times and beat you like Rodney King to get the cuffs on you, too bad, so sad.

if you resist, I remove your arms and beat you with them

Get those hands behind you before I twist your snarglies off.

Feel free to dismiss all your previous comments as mere "hyperbole." They still reflect a willingness to resort to incredible violence, especially in the context of an unlawful arrest, which was what I was referencing.

I can't claim I know everything about the law. I'm not an attorney. And my information is dated, I haven't worked in law enforcement since the late 1980's. However, I've got two years of criminal law education as an undergrad, and a bit more at the master's level. That's more than a lot of cops. I'm not sure what you think officers of the law need - a law degree themselves?

I think if you are going to pick up a lethal weapon and point it at another human being in order to enforce the law, you better damn sure be right. Because you bear the responsibility of your decisions. If you aren't comfortable with that responsibility, then don't pick up a gun in defense of the law.


-Rob

 

[Bill Mattocks]

I think if you are going to pick up a lethal weapon and point it at another human being in order to enforce the law, you better damn sure be right. Because you bear the responsibility of your decisions. If you aren't comfortable with that responsibility, then don't pick up a gun in defense of the law.

I am not the person you think I am. I can see you have some issues here, and you're not going to change your opinion. That's fine, but I think we have nothing more to discuss on this subject.

 

[Thesemindz]

I am not the person you think I am. I can see you have some issues here, and you're not going to change your opinion. That's fine, but I think we have nothing more to discuss on this subject.

Ok.


-Rob