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Right to Resist an Illegal Arrest? Nope!

July 29, 2016 3 Comments

Guest Blog by Millie Thompson, HCCLA member and Defender of the Constitution

The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted—indeed, for every suspect released.

Libertarian-bent people repeatedly ask me the following leading question, expecting me to confirm their conclusion: We have a Constitutional right to resist an illegal arrest, right?

Bloody_Sunday-Alabama_police_attackNo, you don’t. There was a common law right to resist, set forth in the Supreme Court case Bad Elk v. United States, 177 U.S. 529 (1900). That right was destroyed by the courts during the backlash against the Civil Rights Movement.

The courts stripped citizens of the right to resist an unlawful arrest, explaining that people should seek redress in court and sue civilly for an unlawful seizure. Qualified Immunity, however, destroys your ability to sue for an unlawful arrest based on mistaken identity.

On the one hand, you can’t resist them. On the other, you have no right to complain later if they were merely mistaken about arresting you.

Compare 1 with 2:

1 – United States v. Danehy, 680 F.2d 1311 (11th Cir. 1982):

Speaking for the court in United States v. Johnson, 542 F.2d 230, 233 (5th Cir. 1976), Judge Morgan evaluated the current vitality 1316*1316 of the common law right to forcibly resist unlawful arrest. He concluded that old Fifth Circuit case law on the subject had been “sapped of its precedential value” by the persuasive authority of decisions from the other courts of appeals. Those decisions recognize that the common law right to resist an arrest that is not based upon probable cause, suited though it may have been to a past era, has no significant role to play in our own society where ready access to the courts is available to redress such police misconduct. See, e.g., United States v. Cunningham, 509 F.2d 961, 963 (D.C. Cir. 1975); United States v. Martinez, 465 F.2d 79, 82 (2d Cir. 1972); United States v. Simon, 409 F.2d 474, 477 (7th Cir.), cert. denied, 396 U.S. 829, 90 S.Ct. 79, 24 L.Ed.2d 79 (1969). Cf. United States v. Ferrone, 438 F.2d 381, 389-90 (3d Cir.), cert. denied, 402 U.S. 1008, 91 S.Ct. 2188, 29 L.Ed.2d 430 (1971) (no right to resist search pursuant to invalid search warrant). But see United States v. Moore, 483 F.2d 1361, 1364 (9th Cir. 1973) (dictum). Although there may be some residual role for the common law right where it appears that the arresting officer is engaged in a “frolic of his own,” see United States v. Martinez, 465 F.2d at 82, there was no such situation here.

2 – Baker v. McCollan, 443 U.S. 137 (1979):

Respondent’s innocence of the charge contained in the warrant, while relevant to a tort claim of false imprisonment in most if not all jurisdictions, is largely irrelevant to his claim of deprivation of liberty without due process of law.[4] The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted—indeed, for every suspect released. Nor are the manifold procedural protections afforded criminal defendants under the Bill of Rights “without limits.” Patterson v. New York, 432 U. S. 197, 208 (1977). “Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.” Ibid.

The Fourteenth Amendment does not protect against all deprivations of liberty. It protects only against deprivations of liberty accomplished “without due process of law.”

Experts will tell you that the fight-or-flight instinct kicks in whenever someone is in a high stress situation, like, for example, when a police officer puts you in a choke hold. You get tunnel vision. Your body shuts down the processes associated with digestion and rational thought, and your body ramps up the systems that will help you outrun the lion or fight the home invader.

At rest, you can process messages like “put your hands behind your back.” When you’re experiencing the fight-or-flight response, your brain isn’t working in a way that allows proper computation of that message.

The law on resisting arrest is illogical on two fronts: First, the whole reason courts have gotten rid of it – you can sue – is false. No, you can’t sue. Those officers have immunity from suit. Courts also point to the right to a speedy trial. That right is meaningless. There are people sitting in county jails everywhere who can’t make bail, were arrested a year, or even two years, or even three years ago, and still haven’t gone to trial. Second, it is not a cognitive rational decision to resist. It isn’t a choice. It is instinct.

We have a Constitutional right to resist arrest, right? Nope.

Filed Under: constitution, justice, police Tagged With: constitutional rights, illegal arrest, police, resisting arrest

So the School Principal has Interrogated Your Child…

May 3, 2016 4 Comments

 

The wisdom of my friend and colleague, Larry McDougal, bears repeating:

A school principal is undisputedly an agent of the State of Texas. Yet the rules that apply to police officers interrogating your child do not apply to school principals. Even if the police officer detaiprincipalns your child and takes them to the principal, as long as the police officer leaves the room prior to the interrogation by the school principal, the rights granted to any person when interrogated by the police do not apply. In the Matter of V.P., 55 S.W.3d 25. This includes the right to an attorney and the right to remain silent. So even though the principal is an agent of the State, they are not law enforcement and the questioning by a school principal is not a custodial interrogation as it would have been had a police officer conducted the questioning of your child.

So now school administrators and police officers are trained to have the principal take all statements or confessions from the child to avoid the constitutional protections afforded all persons when questioned by law enforcement. They will question your child, without notice to you, and anything your child says can be used against them in court. It is a sad day when our schools and law enforcement work together with the intent to deny our children their rights provided to them by both the U.S. and Texas Constitutions along with the Texas Family Code.

No one wants to teach his or her children to lie. Yet parents are forced with the reality of teaching their children not to cooperate with school administrators and law enforcement.

Your children, once they reach the age of 10 in Texas, must know to never admit to anything that they may have done. They must learn to stand up to authority by demanding that their parents be present, that they want an attorney, and they want to remain silent. Children must learn to hold their ground despite being threatened by the principal (or even a teacher or counselor). It is the American school system that has forced parents into this position.

It was not this way 30 years ago. It does not take much to get a young child to admit to something that they did not do.

Overall, this is one of the saddest consequences of our “tough on crime” mentality. Recalling the practices of the past decades, I remember prosecutors teaching law enforcement to “request” interviews and “release” the child after the interview – even if he intended to arrest. The “release” was to show that the child was not “in custody” and therefore the special protections requiring a trip to a magistrate before a statement could be made would not be triggered. Now, we have gone even further to suggest that the school administrators should do the questioning so as not to trigger the constitutional protections afforded to all.

Of even greater concern is that teachers and school administrators are now being offered and taught the infamous Reid technique: a police interrogation technique focused on breaking down the subject and extracting a confession.

Yes, you heard that correctly. Teachers and school administrators are now being taught to extract confessions under a technique that has been charactered by psychologists and judges as coercive and liable to produce false confessions – especially when used on juveniles who are highly suggestible and more easily manipulated.

The Reid Technique taught in schools is composed of three steps:

  1. an investigative component, in which you gather evidence;
  2. a behavioral analysis, in which you interview a suspect to determine whether he or she is lying; and
  3. a nine-step interrogation, a nonviolent but psychologically rigorous process that is designed, according to Reid’s workbook, “to obtain an admission of guilt.”

Even though taught to educators and administrators, outside a law enforcement arena, the video segments to demonstrate behaviors and questioning involved serious crimes such as murder and rape. The materials given to educators refer to suspects or subjects – never students or kids.

Not surprisingly, one of the first things administrators will do is take away the student’s cell phone to prevent calls or texts to parents. Teaching educators to “dabble” in law enforcement is just as dangerous as teaching them to “dabble” in psychology or other sciences. When they get it wrong (not “if” but “when”), we will have false confessions taking children down the prison pipeline with little hope of stopping.

And, why? We already have entire law enforcement agencies created and ran by our school districts. Officers are already on campus or very near campus to respond. Seems one or the other simply isn’t necessary. Ah, but then again, if we relied on our law enforcement officers, we would have to respect the child’s constitutional and statutory rights. And, don’t even get me started on the whole “alternative school” mess…

Filed Under: incarceration, jail, justice, police, students Tagged With: constitutional rights, law enforcment, principal, school administrators, school interrogation, student, students

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