Police Misconduct
Police Misconduct
Police Misconduct
Auth
hor Unknownn
Conten
nts
The Right to Self‐Defen
nse ............................................................................... .................................................. 1
OK Corral ..................................................................................................... .................................................. 1
Waco SShowdown ........................................................................................ .................................................. 2
Police P
Power................................................................................................ .................................................. 2
The Upshot of Police
e Brutality – JJohn Bad Elk ............................................ .................................................. 3
Your Right to Resist Un
nlawful Arrestt ............................................................... .................................................. 5
The Naturral & Common Law Right o
of Self Defensse ....................................... .................................................. 6
Summary of Case Citattions ............................................................................. .................................................. 8
The Rig
ght to Sellf‐Defense
e
I have oftten wonderedd what it was like when co ommunities w were small, annd everybodyy knew everyybody.
This thou
ught occurred
d to me while I was driving throughh Tombstonee, Arizona, siite of the faamous
gunfight.
OK Corrral
As was re
eported in the
e papers of thhe day (not te ws), the Earps and Doc Holliday were waalking
elevision new
down the e street, know
wing that the Clantons andd Lowery we re at the corral. These facctions had beeen at
odds withh each other for years, an
nd on this dayy there appeaared to be a plan, for as tthe Earps and Doc
walked byy the Clantons, the Earps tthrew some hhateful wordss out.
n provoke the desired action, so Dooc pulled hiss shotgun fro
This, appaarently, did not om under his coat,
turned annd fired. The Earps then jo oined in and o only two of thhe others gott away. Similaarly, here in W Waco,
one factio
on, with colo or of law, wass able to ope
en up on thee other in a d
devastating ggunfight that left 9
dead. Thee color of law
w was sufficieent, at least for the time being, to vinndicate the aaggressors. In
n both
cases the side with color of law wo ould have, if ccircumstancees warranted,, been given ttime off, with h pay,
while adjjudication occcurred. The other side would have been incarccerated until adjudication n was
Okay to Kill Law Enforcers in Self‐Defense?
completed. Those with h color of law
w would not be charged witth a crime, bu
ut the others would be charged
ous crimes.
with serio
Waco Showdown
n
While I was here durin ng the siege I ran across an
n interesting piece of Texaas law. In the Texas Penal Code,
9.31 (C), rreads as follow
ws:
Th
he use of forcce to resist arrest or search
h is justified:
(1
1) If, before th
he actor offers any resista
ance, the peaace officer (orr person actin
ng at his direection)
usses or attemppts to use greater force tha
an necessary to make the arrest; and
2) when and to the degreee the actor reeasonably beelieves the forrce is immediiately necessa
(2 ary to
prrotect himsellf against thee peace officeer’s (or otherr person’s) usse or attempted use of grreater
fo
orce than neccessary.
lib
berty
1.. Exemption ffrom slavery, bondage, imp
prisonment, oor control of aanother.
2.. Freedom fro
om external reestraint or compulsion
(W ew Collegiate Dictionary).
Webster"s Ne
LIIBERTY ‐ Freeedom; exemp ption from exxtraneous coontrol. The poower of the will to follow
w the
diictates of itss unrestricted
d choice, and
d to direct thhe external acts of the individual wiithout
reestraint, coerccion, or contrrol from otherr persons.
(B
Black"s Law D
Dictionary ‐Third Edition)
It appearss, then, that tthe right for each of us to
o walk freely,, subject to n
not harming oor injuring an
nother
person orr his propertyy is the conceept of liberty tthat the Founnding Fatherss spoke of, an
nd we have leet our
liberty be lost in a myrriad of regulattion, rule and
d control.
Police P
Power
What gives a "peace officer" the right to take
e a person’s liberty, or p
property? Ob bviously the Texas
legislatorss realized thaat excessive fforce could bbe used, unlaw wfully, justifyying lawful reetaliation. Peerhaps
they understood hum man nature and
a knew thaat personal bias might p play a part w
when one peerson,
operatingg under color of law, mightt exceed lawfful exertion oof force. Undeerstanding th hat abuse of ppower
might occcur, isn’t it poossible that b
both time and d extension oof power migght result in ""law enforcem ment"
officers exxerting an authority that iss beyond lawful authority??
Okay to Kill Law Enforcers in Self‐Defense?
Wonderin ng how, and w why, the scop pe of law enfforcement m ay have chan nged, I begann searching fuurther
and ran innto an interessting accountt of a significaant change thhat came as a result of a m major trauma in the
history off the United States of America.
A During World W War II, especially with thee troops bein
ng an
occupatioon army afterr the armisticces, there waas a rather caarefree attitu
ude among thhose who thoought
they may never see ho ome again.
The Upshot of Po
olice Bruta
ality – John
n Bad Elk
I looked further,
f in Am mber 1993, a nd found an interesting aarticle, portio
merican’s Bullletin, Septem ons of
which follow: This fun ndamental pre emise was up pheld by the Supreme Co ourt of the Un nited States iin the
case of when the courtt stated:
Jo
ohn Bad Elk v. U.S., 177 U.SS. 529 (1900))
"The court charged the jury:
Okay to Kill Law Enforcers in Self‐Defense?
sufficient ju
ustification fo
or the defend dant to shoot
t him and killl him. The def
efendant
would only be justified
d in killing th
he deceased when you sshould find tthat the
circumstancces showed th hat the decea ased had so ffar forgot hiss duties as an
n officer
and had gon ne beyond th he force necesssary to arreest the defend dant, and wa as about
to kill him o
or to inflict g
great bodily in njury upon hhim, which wwas not necesssary for
the purpose e of making th he arrest.”
The jury, relying on the
ese instructio
ons, convicted
d John Bad Elkk of murder aand the case w
went to the h
higher
court on e
error. The higgher court staated:
So we can clearly see that something has happe ened that hass had the effeect of allowingg us to be arrrested
(lose our liberty) by th
he design of aa law enforce
ement officer when the Su upreme Courtt has held thaat the
officer has no right unlless certain procedures (co
onstitutional protections) are adhered to.
Perhaps we
w have bee en led to beelieve that laaw enforcem ment has sup perhuman rigghts. Perhap ps the
Founding Fathers, and d those that followed reccognized thaat no special privilege could be grantted to
normal humans who took a job that put the em at risk. PPerhaps arresst cannot bee made, unleess by
indictmennt, properly o obtained inforrmation or if a serious crim me, not minor, is committed in the presence
of the offiicer, and, perrhaps not eve en in this last case unless pproperty or livves are at stake.
As a gene ed the fact that we may shoot another person to protect our lives,
eral rule we have accepte
property or money. But
B what is property
p or money
m if nott a previous conversion of time. Thee time
exerted to achieve the money or property sure ely had valuee. When sommeone attempts to "steal"" that
time priorr to conversio on are we noot able to und derstand thatt even more iis being taken away than when
property is?
Okay to Kill Law Enforcers in Self‐Defense?
Your R
Right to Re
esist Unla
awful Arre
est
"Citizens may resist unlawful
u arre
est to the point of takinng an arrestiing officer's life if necessary."
Plummer v. State, 136 Ind. 306.
"Each perrson has the rright to resistt an unlawfull arrest. In suuch a case, the person atteempting the aarrest
stands in the position o
of a wrongdo oer and may b be resisted byy the use of fo orce, as in sellf‐ defense." ((State
v. Mobleyy, 240 N.C. 47
76, 83 S.E. 2d 100).
"Story afffirmed the rigght of self‐de
efense by perrsons held illeegally. In his own writingss, he had adm
mitted
that ‘a sittuation could arise in whicch the checkss‐and‐balancees principle cceased to work and the vaarious
Okay to Kill Law Enforcers in Self‐Defense?
branches of governme ent concurred d in a gross ussurpation.' Thhere would be no usual reemedy by chaanging
the law or passing an amendment to the Consttitution, shouuld the oppressed party bee a minority. Story
concluded d, ‘If there be any remedy at all ... it is a remedy never provid
ded for by hu
uman instituttions.'
That was the ‘ultimate e right of all human beings in extreme ccases to resistt oppression, and to applyy force
uinous injustice.'" From Mutiny on the Amistad bby Howard Jones, Oxford
against ru d University Press,
1987, an aaccount of the reading of tthe decision iin the case byy Justice Joseph Story of th he Supreme C Court.
As for gro
ounds for arreest: "The carrrying of arms in a quiet, peeaceable, and
d orderly man nner, concealed on
or about tthe person, iss not a breach of the peacce. Nor does such an act oof itself, lead to a breach o
of the
peace." WWharton's Criminal and Civil Procedure e, 12th Ed., VVol.2: Judy v. Lashley, 5 WW. Va. 628, 441 S.E.
197.
"One mayy come to thhe aid of anoother being unlawfully
u ar rested, just aas he may w
where one is being
assaulted, molested, raped
r or kidn
napped. Thuss it is not an offense to liberate one ffrom the unllawful
custody o of an officer, e
even though he may have submitted too such custod dy, without reesistance." (A Adams
v. State, 1
121 Ga. 16, 48 8 S.E. 910).
And on th
he issue of acttually killing aan arresting o
officer in selff‐defense:
The Na
atural & C
Common L
Law Rightt of Self D
Defense
"Common n as the evennt may be, it is a serious thing to arresst a citizen, and it is a more serious thing to
d he who acccomplishes it,, must do so in conformity to the law of the land. TThere
search hiss person; and
are two rreasons for th
his; one to avvoid bloodshed, and the oother to presserve the libeerty of the ciitizen.
Okay to Kill Law Enforcers in Self‐Defense?
Obedience to the law iis the bond o
of society, and
d the officers set to enforcce the law aree not exemptt from
its mandaates." Town o
of Blacksburg v. Bean 104 SS.C. 146. 88 SS.E. 441 (19166): Allen v. Staate, 197 N.W
W. 808,
810‐11 (W
Wis 1924)
"A person
n has a lawfuul right to resist an arrest by an unlawfful authority,, i.e., an officcer without aa valid
warrant." Franklin,118
8 Ga. 860, 45 SS.E. 698 (1903)
"A citizen
n illegally arre
ested "canno
ot initiate the
e use of forcce" and neith
her do "wordds alone justify an
assault." However, "when the officcer initiates th he assault byy physical con ntact, which iis usually the case,
and there e is an unlawfful arrest, thee citizen has tthe right to pprotect his lib berty to the eextent of killin
ng the
officer." SSee Green v. Kennedy, 48 N.Y. Rep. 65 53, 654 (18711) and/or Hiccks v. Mattheews, 266 S.W. 2nd.
846, 849 ((Tex. 1954)
Okay to Kill Law Enforcers in Self‐Defense?
"It is the law that a perrson illegally arrested by aan officer mayy resist that aarrest, even to o the extent o of the
taking of life if his ownn life or any ggreat bodily h harm is threattened. State vv. Rousseau, 40 Wash. 2nd, 92,
241 P. 2n 1 Ga. 297, 52 S.E. 283,, 287 (1905);; see also State v.
nd. 447, 449 (1952); Porter v. State, 124
Mobley, 2 240 N.C. 476,, 83 S.E. 2nd 100, 102 (195 54); Wilkinsoon v. State, 1443 Miss. 324,, 108 So. 711, 712‐
13 (1926)); American Jurisprudence e, 2nd Ed., "A Arrest", Sectioon 94, pp. 778‐780; Thomas v. State, 9 91 Ga.
204, 18 S.E. 305 (1892 2); Presley v. State, 75 Fla. 434, 78 So. 532, 534 (19918); Burkharrd v. State, 83 3 Tex.
Crim. 228 8, 202 S.W. 513; Mullins vv. State, 196 G Ga. 569, 27 SS.E. 2nd. 91 ((1943); Ownees v. State, 58 8 Tex.
Crim. 261, 125 S.W. 40 05 (1910); Cap perton v. Com mmonwealth,, 189 Ky. 652,, 655, 225 S.W W. 481, 481 (1 1920)
Summa
ary of Casse Citation
ns
1. Sttate v. Robinsson, 145 Me 7 77, 72 Alt. 2d 260, 262 (19950)
2. Sttate v. Gum, 668 W. Va. 105 5
3. Sttate v. Rouseau, 40 Wash. 2d. 92, 241, 242 P.2d 4477, 449 (1952)
4. Sttate v. Mobleey, 240 N.C. 446, 83 S.E., 2d 100, 102 (11954)
5. Wilkinson v. St
W tate, 143 Miss. 324, 108 So o. 711
6. Thhomas v. Statte, 91 Ga. 204 4, 18 SE 305
7. Presley v. Statee, 75 Fla. 434
4, 78 So. 523
8. Burkhardt v. Sttate, 83 Tex C Crim 228, 202 2 S.W. 513
9. Mullis v. State,
M , 196 Ga. 569
9, 27 SE 2d 91 (1943)
10. Owen v. State,
O , 58 Tex Crim 261, 125 S.W W. 405 (1910)
11. Frranklin,118 GGa. 860, 45 S.EE. 698 (1903)
12. Graham v. Statte, 143 Ga. 44 40 85 S.E. 328 8, 331
13. City of Columb bus v. Holmess, 152 N.W. 2d d, 301, 306 (O
Ohio App. 10558)
14. Adams v. State e, 121 Ga 1633, 48 S.E. 910 (1904)
15. Robertson v. SState, 198 S. WW2d 633, 635 5‐36 Tenn. (19947)
16. Roberts v. Deaan, 187 So. 57 71, 575 Fla. 19 939
17. Thhe State of Coonnecticut aggainst Leach, 7 Conn, Rep. 452 (1829)
18. Housh v. The P People, 75 ILLL Rep. 487, 4991 (1874)
19. Plummer v. Th he State, 135 Ind. 308, 313, 334 N.E. 9688 (1893)
20. ohn Bad Elk v. U.S. 177 U.SS. 529 (1899)
Jo
21. Peeople v. Heve ern, 127 Misc. Rep. 141, 21 15 NY Supp 4412
22. U.S. v. Cerciello, 86 NJL 3099, 90 Atl.1112 2, (1914)
23. 1 Fed 2d 263 (1931)
U.S. v. Kelly, 51
24. Bednarik v. Bednarik, 16 A 2 2d, 80, 90, 18
8 NJ Misc. 6333 (1948)
25. Sttate v. Heightt, 117 Iowa 6550, 91 NW 93 35
26. Peeople v. Cordder, 244 Mich. 274, 221 NW W 309
27. Boyd v. U.S., 116 U.S. 616
Okay to Kill Law Enforcers in Self‐Defense?
28. Sttate v. Newcoomb, 220 Mo 54 119 SW 4 405
29. Toown of Blackssburg v. Beann, 104 S.C. 1466. 88 S.E. 4411 (1916)
30. Allen v. State, 197 N.W. 808 8, 810‐11(Wiss 1924)
31. Adarns v. State e, 121 Ga 163
3, 48 S.E. 910 (1904)
32. Green v.Kenne edy,48 N.Y. Reep. 653, 654 ((1871)
33. Hicks v. Matthews, 266 S.W W. 2nd. 846, 8 849 (Tex. 19544)
34. Poorter v. State
e, 124 Ga. 297
7, 52 S.E. 283,, 287 (1905)
35. Mullins v. Stat
M e,196 Ga. 5699, 27 S.E. 2nd
d. 91 (1943)
36. Caperton v. Commonw wealth, 189 Ky. 652, 655, 2255 S.W. 48
81, 481 (1920)
Okay to Kill Law Enforcers in Self‐Defense?