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?
No, 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. 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.