Americans on the receiving end of police abuse are often smugly told, “You might beat the rap, but you can’t beat the ride” — as if they had no right to resist when they are victims of a criminal assault by people in government-issued costumes. Bystanders who witness episodes of that kind are often told that the propriety of a police beat-down is a matter “for the courts to decide” — even when an obviously innocent person has already been left battered and bloody by an attack that constitutes summary punishment for what police often call “contempt of cop.”

In fact, the right to resist criminal violence by agents of state coercion — including unlawful arrest — is a common law right recognized for centuries in both Anglo-Saxon and American judicial precedents.

“The weight of authoritative precedent supports a right to repel an unlawful arrest with force…. This was the rule at common law,” observed the Alaska State Supreme Court in its ruling in the 1969 case Terry Glenn Miller v. State of Alaska.“It was based on the proposition that everyone should be privileged to use reasonable force to prevent an unlawful invasion of his physical integrity and personal liberty.” While that court argued that the common law right to resist should be abandoned, they candidly acknowledged that it was a central part of our legal heritage.

In the decades just prior to the American founding, the Queen’s Court in England handed down two rulings — Hopkin Hugget’s Case (1666) and Queen v. Tooley (1710) — acknowledging that the Magna Carta protected an individual right to employ lethal force to prevent an illegal arrest. In fact, in the latter decision the English High Court described an attempt to carry out an unlawful arrest as a criminal abduction, and expressed the view that bystanders have the legal authority to use whatever force is required to prevent the consummation of that crime.

Simply put: A constable or police officer attempting an illegal arrest is a criminal, and citizens who witness an act of that kind have the legal authority to act as peace officers in order to prevent that crime or arrest the officially licensed offender. The United States Supreme Court recognized that principle in its decision in the 1900 case John Bad Elk v. U.S., which is still a valid precedent. In United States v. Di Re(1948), the Court observed: “One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases.” That right was recognized and protected by state laws across the nation until the late 1960s, and has occasionally been acknowledged in recent court rulings.

In the 1999 decision Victoria Price Brown v. Commonwealth of Virginia, that state’s Court of Appeals vindicated the claim that a woman assaulted and arrested by police in a case of mistaken identity “had the right to resist upon self-defense principles. The Commonwealth cannot expunge that right even by showing the officers acted in `good faith.’”  The Louisiana Supreme Court, in a 1994 decision entitled State v. Stowe, ruled: “The right of personal liberty is one of the fundamental rights guaranteed to every citizen, and any unlawful interference with it may be resisted. Every person has the right to resist an unlawful arrest, and in preventing such illegal restraint on his liberty, he may use such force as necessary.” (Emphasis added.) Late last year, the Michigan State Supreme Court heard oral arguments in State v. Moreno, a case involving the right to resist an unlawful police search and subsequent physical resistance by the victim; a ruling is expected later this year.

Current dogma holds that citizens have a duty to defer to any order issued by an armed individual carrying government credentials. This includes permitting ourselves to be restrained, arrested, and incarcerated without just cause, on the assumption that the same State that stole our liberty will agree not to take any more of it when the matter is examined in court.

Without a right to resist, we have a duty to submit. And submission to unlawful police violence too frequently results in injury, sexual assault, and death.

Yes, resisting lawless state-authorized violence is dangerous, and can be counterproductive. Citizens confronting the prospect of an illegal arrest should be governed by the test of proportionality — that is, would forceful resistance result in more harm than submission? And the same consideration should define the actions of third parties thinking of intervening to prevent an abuse of police authority.

This assumes, of course, that the actors in question reside in a state where the right to resist is protected by law. Where this is not the case, an effort should be made to restore legal protection for that right, and to educate policy makers, law enforcement officers, and the public about the legitimacy of forceful resistance to unlawful arrest.

The model legislation below is based on the constitution and laws of the State of Idaho, but it can be adapted to those of any other state:

Restoring the Right to Resist Arrest: A Model Statute

An Act

Relating to the restoration of the right of a citizen to resist unlawful arrest, search, and seizure, by amending Title 18, Idaho Code, through deletion of section 18-705 and its replacement by language restoring the common law right to resist unlawful arrest and establishing penalties for unlawful assault by public officials and sentence enhancement following conviction of those who resist arrest in the course of committing crimes against persons and property.

Legislative findings:

Whereas – Article I, section 2 of the Idaho State Constitution decrees: “All political power is inherent in the people.[…] Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary; and no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed by the legislature” (emphasis added); and

Whereas – The authority delegated by the sovereign people to any government official, including a licensed peace officer, cannot be greater than that of any law-abiding citizen from whom that authorization is derived; and

Whereas – Title 18, Ch. 7, Sec. 18-703 of the Idaho State Code designates the arrest or detention of any individual, or the seizure, levy, or dispossession of any property “without a regular process or other lawful authority,” as a crime; and

Whereas – Title 18, Ch. 7, Sec. 18-706 of the Idaho Code defines a physical assault by a public officer “under color of authority, without lawful necessity” as a crime punishable “by a fine not exceeding $5,000 and imprisonment in the county jail not exceeding one (1) year”; and

Whereas – The Idaho Code Judicial Instructions (ICJI 1262) asserts that “it is the person’s duty to refrain from using force or any weapon in resisting arrest regardless of whether or not there is a legal basis for the arrest” – thereby creating a spurious “privilege” or “immunity” liable to revocation by the legislature; and

Whereas – Current state judicial precedent (State v. Lusby, 2008) encourages licensed peace officers to violate those statutes by provoking physical confrontations in the hope of charging citizens with “resisting arrest” in order to circumvent Fourth Amendment restrictions on search and seizure (according to the Idaho Court of Appeals, “ although officers may have conducted an unconstitutional search or seizure, a subsequent attack on the officer is a new crime unrelated to any prior illegality”); and

Whereas – The Idaho State Supreme Court, in its 1973 decision State V. Richardson, explicitly acknowledged that “At common law a person unlawfully arrested could resist such an arrest by the use of reasonable force,” then – without legislative direction or other authorization by the sovereign people of the State – decreed that “the trend is, and should be, away from the traditional common law rule, and therefore we hold that if a person has reasonable ground to believe he is being arrested by a peace officer, it is his duty to refrain from using force or any weapon in resisting arrest regardless of whether or not there is a legal basis for the arrest,” thereby illegitimately abrogating what the Court itself acknowledged to be a valid and long-standing individual right; and

Whereas – In its decision in John Bad Elk v. U.S. (1900), the U.S. Supreme Court ruled that a police officer trying to make an unlawful arrest has “no right to unnecessarily injure, much less to kill, his assailant; but where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no such right” – thereby explicitly recognizing a citizen’s right to use lethal force to prevent an unlawful arrest; and

Whereas —  ”The right to resist unlawful arrest memorializes one of the principal elements in the heritage of the English revolution: the belief that the will to resist arbitrary authority in a reasonable way is valuable and ought not to be suppressed by the criminal law” (Paul G. Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128,1129 [1969]);

Therefore, be it enacted by the Legislature of the State of Idaho:

SECTION 1. That Title 18, Chapter 7, sec. 18-705 of the Idaho Criminal Code dealing with “Arrests and Seizures of Persons or Property – Special Officers,” is hereby amended by removing the offense of “Resisting and obstructing officers,” and replacing it with the following:

18-705. Resisting lawful arrest, and the crime of unlawful arrest. Every person who willfully resists, delays or obstructs any licensed peace officer in the course of executing a valid warrant or conducting a lawful arrest will – upon conviction of a property crime or crime of violence – be subject to an additional penalty of up to one year imprisonment in the county jail, and/or a fine not exceeding one thousand dollars ($1,000). These penalties are of secondary effect and cannot be imposed in the absence of a predicate offense against person or property.

SECTION 2. That any individual – whether licensed peace officer or member of the public – who assaults or detains another, or presumes to seize or levy property, without a valid warrant or court order, or legitimate probable cause that a crime against person or property has been or is about to be committed, is guilty of the crime of false arrest, as well as other related offenses, and is liable to appropriate criminal prosecution and civil action.

SECTION 3. Notwithstanding any previous judicial ruling or administrative finding or policy, the right of the individual to resist unlawful arrest will be recognized as a valid defense in all criminal and civil proceedings.

Go here to read more about the case for restoring legal protection for the right to resist unlawful arrest.