I originally wrote this as a blog post, so it doesn't quite fit the forum. And for the record, I am not a lawyer. Do not take this as legal advice. I'm just a guy who likes reading the law and analyzing its consequences. Don't go being an idiot and getting yourself involved in fights with cops because of what I've argued here. It probably won't help you and I sure as hell can't.
The Indiana Supreme court seems convinced that statute has modified the common law doctrine that allowed citizens to resist an "unlawful arrest." They do so by (wrongly, as I found out later) reading their own precedents, which by their own quote, require that the officer is "lawfully engaged in the execution of the officer's duties."
I find it very hard to believe that among the lawful duties of police officers are making unlawful arrests. In fact, I'm pretty sure that doing so is not only a violation of the civil liberties of the person who is unlawfully arrested, but also a violation of that officer's oath to the U.S. and Indiana constitution and contrary to their duties as law enforcement officers.
What is strange about this is the time period from which the citations exist. The phrase, "at common law," typically refers to the English system of law (which the United States inherited). Statutes exist to modify decisions by judges that are based on common law cases (decisions by judges based on the constitution can only be overruled by the courts or constitutional amendment). So the United States inherits the common law doctrine that it is acceptable to resist an unlawful arrest in 1787. In 1917, the Indiana courts apply this doctrine. It's not until 1976 that the Indiana legislature passed the section discussed in this case, and when they do, they codify that the officer must be, "lawfully engaged in the execution of the officer's duties" (emphasis added).
So if that's true, what changed? Two years later, the courts in Indiana interpret that same statute to criminalize (basically) all resistance of "peaceful arrest" regardless of whether the arrest is legal. Huh? It seems if they were basing their decision on a 1978 case of Fields v. State. So, of course, being the nerd I am, I looked it up. In that case, the judges invented this little gem, after concluding that Fields had been unlawfully arrested:
The court invented law from thin air on appeal, denying him the ability to resist the admittedly unlawful arrest, and this year, the Supreme Court of Indiana used that ruling as part of their justification to remand the case for further fact findings of whether the defendant violated the law or not by resisting arrest. My reading of these cases suggest that they got it wrong.
The current case, which is State of Indiana v. Richardson, involves a man who was lawfully carrying a firearm when stopped for not wearing a seatbelt. Although under no duty to respond to the officer's question (case law in Indiana suggests that the inquiry was legitimate, but makes no mention of a requirement to answer the question), Richardson admitted to having a firearm in his pocket (he'd already admitted to driving without his seat belt on). The officer, despite having seen his "tattered" license for the gun, insisted upon verifying its authenticity. Richardson, who had a prior misdemeanor drug conviction, was originally charged with a felony, which created some ambiguity about his status. The Indiana statute requires the issuance of the license to carry handguns to all who fit a statutory criteria, but denies them to anyone with a felony conviction in the last fifteen years. Thinking that Richardson had such a conviction, the officer attempted to arrest him. Richardson resisted the officers once they began patting him down because he was carrying a bag of cocaine in his underwear. On remand, the drugs will be suppressed because the statute allowing officers to make stops for seatbelt violations specifically states that, "a vehicle, the contents of a vehicle, the driver of a vehicle, or a passenger in a vehicle may not be inspected, searched, or detained solely because of a violation of this chapter." In other words, seatbelt traffic stops cannot be used to investigate other crimes without evidence independent of the seatbelt stop itself. But Richardson may still face the charges for resisting officers, even though his arrest was illegal.
It seems obvious to me that the Supreme Court of Indiana reads its own precedents wrong. Nothing in the case law they cited, nor in the plain language of any of the statutes that they have cited, modifies the common law rule that citizens are 'privileged' in resisting unlawful arrest. The court should correct its own error.
The Indiana Supreme court seems convinced that statute has modified the common law doctrine that allowed citizens to resist an "unlawful arrest." They do so by (wrongly, as I found out later) reading their own precedents, which by their own quote, require that the officer is "lawfully engaged in the execution of the officer's duties."
I find it very hard to believe that among the lawful duties of police officers are making unlawful arrests. In fact, I'm pretty sure that doing so is not only a violation of the civil liberties of the person who is unlawfully arrested, but also a violation of that officer's oath to the U.S. and Indiana constitution and contrary to their duties as law enforcement officers.
What is strange about this is the time period from which the citations exist. The phrase, "at common law," typically refers to the English system of law (which the United States inherited). Statutes exist to modify decisions by judges that are based on common law cases (decisions by judges based on the constitution can only be overruled by the courts or constitutional amendment). So the United States inherits the common law doctrine that it is acceptable to resist an unlawful arrest in 1787. In 1917, the Indiana courts apply this doctrine. It's not until 1976 that the Indiana legislature passed the section discussed in this case, and when they do, they codify that the officer must be, "lawfully engaged in the execution of the officer's duties" (emphasis added).
So if that's true, what changed? Two years later, the courts in Indiana interpret that same statute to criminalize (basically) all resistance of "peaceful arrest" regardless of whether the arrest is legal. Huh? It seems if they were basing their decision on a 1978 case of Fields v. State. So, of course, being the nerd I am, I looked it up. In that case, the judges invented this little gem, after concluding that Fields had been unlawfully arrested:
We are of the opinion that the common law rule is outmoded in our modern society. A citizen, today, can seek his remedy for a policeman's unwarranted and illegal intrusion into the citizen's private affairs by bringing a civil action in the courts against the police officer and the governmental unit which the officer represents. The common law right of forceful resistance to an unlawful arrest tends to promote violence and increases the chances of someone getting injured or killed.
There, the judges offered no statutory authority whatsoever for this conclusion. Specifically, there's no mention of Indiana Code 35-44-3-3. In fact, the statute cited in Fields was repealed. It read:
Ind. Code § 35-21-4-1 provides that whoever shall forcibly assault, resist, oppose, obstruct, prevent, impede or interfere with any peace or police officer of this state, or any person assisting him, while such officer is arresting or attempting to arrest any person, or while such officer is engaged in the execution of any of the duties of such peace or police officer, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not to exceed $ 100 or imprisoned not more than 6 months, or both.
It resulted in an even more pithy holding:
We hold that a private citizen may not use force to resist peaceful arrest by one he knows or has good reason to believe is an authorized peace officer performing his duties, regardless of whether the arrest is illegal in the circumstances of the occasion.
I'm pretty sure there's no way to construe an unlawful arrest as being "any of the duties...of [a] police officer." The arrest in Fields was, by the admission of the court itself, an unlawful arrest. And in the case, not only did Fields try to interfere with the officers from unlawfully towing his vehicle, he attempted to kick the Police Chief in the face. Unfortunately for him, he missed, was still found guilty, sentenced to six months in jail, and fined. Fortunately, the court was smart enough to assure that its ruling was narrow:
We note that this appeal does not address issues that arise when an arrestee apprehends that the arresting officer is using excessive force and that unless the arrestee defends himself, he is likely to suffer great bodily harm or death. Nor does this appeal deal with issues that are presented when an unlawful arrest is attempted by one not known to be a law enforcement officer. Our holding is limited to the fact situation presented in the case at bar.
The court also specifically stated that nothing prevented Fields from suing the police department for unlawful arrest. And I'm assuming that trial was quite easy to win after the Supreme Court of Indiana had already ruled that the arrest was illegal for several reasons.
The court invented law from thin air on appeal, denying him the ability to resist the admittedly unlawful arrest, and this year, the Supreme Court of Indiana used that ruling as part of their justification to remand the case for further fact findings of whether the defendant violated the law or not by resisting arrest. My reading of these cases suggest that they got it wrong.
The current case, which is State of Indiana v. Richardson, involves a man who was lawfully carrying a firearm when stopped for not wearing a seatbelt. Although under no duty to respond to the officer's question (case law in Indiana suggests that the inquiry was legitimate, but makes no mention of a requirement to answer the question), Richardson admitted to having a firearm in his pocket (he'd already admitted to driving without his seat belt on). The officer, despite having seen his "tattered" license for the gun, insisted upon verifying its authenticity. Richardson, who had a prior misdemeanor drug conviction, was originally charged with a felony, which created some ambiguity about his status. The Indiana statute requires the issuance of the license to carry handguns to all who fit a statutory criteria, but denies them to anyone with a felony conviction in the last fifteen years. Thinking that Richardson had such a conviction, the officer attempted to arrest him. Richardson resisted the officers once they began patting him down because he was carrying a bag of cocaine in his underwear. On remand, the drugs will be suppressed because the statute allowing officers to make stops for seatbelt violations specifically states that, "a vehicle, the contents of a vehicle, the driver of a vehicle, or a passenger in a vehicle may not be inspected, searched, or detained solely because of a violation of this chapter." In other words, seatbelt traffic stops cannot be used to investigate other crimes without evidence independent of the seatbelt stop itself. But Richardson may still face the charges for resisting officers, even though his arrest was illegal.
It seems obvious to me that the Supreme Court of Indiana reads its own precedents wrong. Nothing in the case law they cited, nor in the plain language of any of the statutes that they have cited, modifies the common law rule that citizens are 'privileged' in resisting unlawful arrest. The court should correct its own error.
