Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Valentine

May 1, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
RONALD FLOYD VALENTINE, PETITIONER.



Appeal from Superior Court, Spokane County. 90-1-01041-5. Honorable Thomas E. Merryman, Judge.

Authored by Gerry L. Alexander. Concurring: Barbara Durham, James M. Dolliver, Richard P. Guy, Charles W. Johnson, Philip A. Talmadge, Charles Z. Smith. Dissenting: Richard B. Sanders, Barbara A. Madsen.

The opinion of the court was delivered by: Alexander

En Banc

ALEXANDER J. -- Ronald Valentine obtained review of a decision of the Court of Appeals, Division Three, affirming his conviction on a charge of third degree assault, a charge that was based on an allegation that Valentine assaulted a law enforcement officer while the officer was engaged in performance of his official duties. Valentine contends on appeal that the trial court erred in instructing the jury that "the use of force to prevent an unlawful arrest which threatens only a loss of freedom . . . is not reasonable." Instruction 17, Clerk's Papers at 71. *fn1 He also contends that this court should overturn his conviction and dismiss the assault charge for what he claims was outrageous conduct of the Spokane police, which violated his right to due process of law. We reject both contentions and, therefore, affirm.

In the early afternoon of May 16, 1990, in downtown Spokane, Spokane Police Officer Rick Robinson observed what he believed was a "suspicious subject on the corner at First and Jefferson." Verbatim Report of Proceedings (VRP) at 88. Upon making this observation, Robinson radioed another Spokane police officer, John Moore, and asked him if he knew the person standing at First and Jefferson "wearing a black coat." VRP at 28. Moore proceeded to that location and observed a person wearing a black jacket enter a car. Although Moore was unable to immediately identify that person, he followed the car as the person drove it away.

According to Moore, the car soon made a turn without signaling.

Moore, who was driving an unmarked car, advised Robinson over his radio that he was going to stop the car. He then attempted to do so by placing a rotating blue light on his dashboard, flashing his headlights, and honking his horn. While attempting to stop the automobile, Moore recognized that the driver of the car he was following was Ronald Valentine. *fn2 Moore broadcast over his police radio that he was following Valentine and that Valentine was not heeding Moore's efforts to stop him. Shortly thereafter, Valentine stopped his automobile and Moore pulled his car in behind him. Officer Robinson also pulled in behind Moore as did several other officers who had overheard the radio broadcasts.

All of the police officers who arrived at the scene testified at trial. Their version of the events that transpired after the traffic stop varied dramatically from Valentine's version of events. Moore said that upon confronting Valentine he asked to see his license and registration. This, he indicated, prompted Valentine to ask, "Why?" VRP at 37. Moore said that he then told Valentine that he was being cited for failing to signal for a turn. According to Moore, Valentine said that since Moore had given him a ticket a few days earlier, he had all the information that he needed. Moore said that he again asked for the driver's license and registration and Valentine responded by saying that "you . . . cops are just harassing me. I'm Black, and I'm tired of the harassment." VRP at 38. After what Moore said was his third request of Valentine to produce his driver's license and registration, Valentine produced it.

Moore testified that he asked Valentine for his current address and that Valentine told Moore to "look it up." VRP at 41. Moore then asked Valentine if he was going to cooperate and sign a citation and, according to Moore, Valentine said that he would not do so. Moore then informed Valentine that he was being placed under "arrest for failure to cooperate. . . . [and] refusing to sign an infraction." VRP at 45.

Moore also testified that after Valentine walked to the front of the car to show Moore that the car Valentine had been driving had a front license plate, Valentine returned to his car door, opened it, and started to reach inside the car. Moore said that he told Valentine to stay out of the car and grabbed Valentine's left arm to prevent him from reaching into the car. Robinson also claimed that he grabbed Valentine's right arm in a similar effort to keep Valentine from entering his car. Valentine, according to Moore, responded to their actions by spinning toward Moore and punching him in the side of the head. Robinson also claimed that he was hit in the ensuing skirmish.

Spokane Police Officers Jones, Webb, and Yates all testified that they joined the scuffle when Valentine began to struggle with Moore and Robinson. They said that they eventually subdued Valentine and forced him to the ground. Yates, who indicated that he had decided to assist Moore in effecting the traffic stop when he heard over the radio that it was Valentine who was being pursued, *fn3 testified that when he became involved in the fracas, he felt Valentine's hand on his gun butt. He said that in order to subdue Valentine, he had to apply a "carotid hold" *fn4 to Valentine's neck.

Valentine was eventually placed in handcuffs and was transported to jail. A nurse supervisor at the jail refused to admit Valentine because of his apparent injuries. Valentine was then taken to a hospital where Moore presented him with a citation for failing to signal for a turn. Valentine signed the citation. Valentine was later booked into the Spokane County Jail where he was charged by information with two counts of third degree assault, it being alleged that he assaulted Moore and Robinson while they were performing "official duties." Clerk's Papers at 1.

Valentine testified at trial on his own behalf. He claimed that because his turn signals were not functioning, he used hand signals to indicate his intention to turn. He also said that he stopped his car as soon as it was possible for him to do so. Valentine indicated that before reaching inside his car, he told Moore he was going to lock his car in order to protect some personal items. He denied that he told Moore to look up his address for himself. He also said that he did not throw the first punch, asserting that any blows he delivered were in self-defense and amounted to reasonable force to protect himself from an illegal arrest. Valentine contended that he would have signed a citation on the scene if he had been presented with one. Valentine was found guilty of assaulting Moore and not guilty of assaulting Robinson.

I

Valentine asks us to decide whether the trial court erred in instructing the jury regarding the employment of force to resist an unlawful arrest. Instruction 17 reads as follows:

A person unlawfully arrested by an officer may resist the arrest;

the means used to resist an unlawful arrest must be reasonable and proportioned to the injury attempted upon the party sought to be arrested. The use of force to prevent an unlawful arrest which threatens only a loss of freedom, if you so find, is not reasonable. Clerk's Papers at 71 (emphasis added).

Valentine claims that the instruction is faulty insofar as it informs the jury that a person may not use force to resist an unlawful arrest which threatens only a loss of freedom. He asserts that it is the law in this state that reasonable and proportional force may always be employed to resist an unlawful arrest. Valentine bases his argument to a large extent on this court's opinion in State v. Rousseau, 40 Wash. 2d 92, 241 P.2d 447 (1952). There, a person who was being unlawfully arrested used what this court described to be the equivalent of a "deadly weapon" when he pushed a police officer who was in the act of arresting him into the path of an oncoming automobile. In concluding that the jury could have found that the defendant used unnecessary force in resisting his arrest, we said "it is the law that a person illegally arrested by an officer may resist that arrest," and suggested further that force could be employed in doing so, but not with "extreme measures" if only a loss of liberty is threatened. Rousseau, 40 Wash. 2d at 94.

At the outset, we note that it is unnecessary for us to decide the validity of instruction 17 as it might affect Valentine's trial. That is so because the claimed error of law in the instruction makes a difference if and only if the arrest of Valentine was unlawful. Significantly, Valentine has never claimed that his arrest was unlawful, either in the trial court or the Court of Appeals. Valentine's trial theory, rather, was that the Spokane police officers assaulted him during the course of the arrest and that he was merely defending himself against that assault. Consequently, neither the trial Judge nor the jury was asked to decide if Valentine's arrest was unlawful. The question of whether instruction 17 improperly skewed the result of the jury verdict does not, therefore, arise, because in the absence of an unlawful arrest, there can be no issue as to whether one can use force to resist an unlawful arrest. Thus, it was not necessary for this court to accept review of this case in order to answer the question of whether it is lawful in Washington to use reasonably proportioned force to resist an unlawful arrest.

Nevertheless, both parties have placed that issue sharply in focus both in their briefing and at oral argument, which consisted largely of Discussion of this very issue. In our review of the law, beginning with Rousseau, we have discovered that cases from our court and from the Court of Appeals have created confusion as to whether one who is illegally arrested may resist the arrest when the arresting officer's acts threaten only a loss of liberty. For example, although the Court of Appeals has cited Rousseau for the proposition that a defendant was justified in resisting an unlawful arrest, State v. Schulze, 51 Wash. 2d 878, 883, 322 P.2d 839 (1958), the Court of Appeals, two decades after Rousseau, stated the rule: "In State v. Rousseau, 40 Wash. 2d 92, 241 P.2d 447 (1952), it was held that one may not resist with deadly force an unlawful arrest which merely threatens to deprive him of his liberty and not to do great bodily harm." State v. Madry, 12 Wash. App. 178, 181, 529 P.2d 463 (1974), review denied, 85 Wash. 2d 1004 (1975). In State v. Westlund, 13 Wash. App. 460, 536 P.2d 20, 77 A.L.R.3d 270, review denied, 85 Wash. 2d 1014 (1975), the confusion was furthered when, after stating the Rousseau rule as "one may resist an unlawful arrest by an amount of force reasonable and in proportion to the injury the arrestee faces," the Court of Appeals said, "the arrestee's right to freedom from arrest without excessive force that falls short of causing serious physical injury or death can be protected and vindicated through legal processes, whereas loss of life or serious physical injury cannot be repaired in the courtroom." Westlund, 13 Wash. App. at 465, 467. The latter statement apparently led the Court of Appeals in State v. Goree, 36 Wash. App. 205, 209, 673 P.2d 194 (1983), review denied, 101 Wash. 2d 1003 (1984), to say "the use of force to prevent even an unlawful arrest which threatens only a loss of freedom is not reasonable." Indeed, the status of Washington's law on this subject was even confusing to courts in other jurisdictions. See Glover v. State, 88 Md. App. 393, 594 A.2d 1224, 1231 n.5 (1991) (listing Washington as one of the states to have abrogated the common law rule allowing resistance to unlawful arrests, and citing Westlund as authority).

Unfortunately, this court has not alleviated the confusion in this area. In State v. Hornaday, 105 Wash. 2d 120, 131, 713 P.2d 71 (1986), we said the following in the same paragraph: "A person illegally arrested by an officer may resist the arrest; the means used to resist an unlawful arrest must be reasonable and proportioned to the injury attempted upon the party sought to be arrested. 'The use of force to prevent even an unlawful arrest which threatens only a loss of freedom is not reasonable.'" Hornaday, 105 Wash. 2d at 131 (quoting Goree, 36 Wash. App. at 209) (citations omitted). Because any arrest, lawful or unlawful, threatens at least a loss of freedom, the second sentence appears to be incompatible and inconsistent with the first.

In a similar vein, counsel for Valentine suggested at oral argument that our recent decision in State v. Mierz, 127 Wash. 2d 460, 476, 901 P.2d 286 (1995), overruled Rousseau sub silentio. In Mierz, a unanimous decision, we said, citing Hornaday: "An arrestee charged with assault upon a law enforcement officer must show that there was an imminent threat of serious physical harm in connection with an unlawful arrest in order to establish legitimate use of force in self-defense." *fn5 Mierz, 127 Wash. 2d at 476.

As a result of this confusion in our law, we depart from our usual practice of not ruling on issues unless it is necessary to resolve a case, and proceed with reconsideration of the proposition we advanced in Rousseau, namely, that it is not unlawful to use reasonably proportioned force to resist any illegal arrest.

In Rousseau, a 1952 case, we recited the common law rule prevalent in most jurisdictions at the time: "It is the law that a person illegally arrested by an officer may resist that arrest, even to the extent of the taking of life if his own life or any great bodily harm is threatened." Rousseau, 40 Wash. 2d at 94 (citing John Bad Elk v. United States, 177 U.S. 529, 20 S. Ct. 729, 44 L. Ed. 874 (1900), and State v. Gum, 68 W. Va. 105, 69 S.E. 463 (1910)).

Gum, in turn, relied heavily on cases from Iowa, State v. Row, 81 Iowa 138, 46 N.W. 872 (1890); California, People v. Denby, 108 Cal. 54, 40 P. 1051 (1895); and Florida, Roberson v. State, 43 Fla. 156, 29 So. 535 (1901). Gum, in fact, quoted from the Florida case the language we adopted in Rousseau. Gum, 68 W. Va. at 112. Although the law regarding this issue has not changed in West Virginia since 1910, the West Virginia Supreme Court has had occasion to address it only once since then, nearly half a century ago in State v. McCauley, 130 W. Va. 401, 43 S.E.2d 454 (1947). By contrast, the law in the three states on which Gum most relied -- Iowa, California, and Florida -- has changed. It is now illegal in each of those states to resist even an unlawful arrest. *fn6 Likewise, Rousseau also relied on State v. Robinson, 145 Me. 77, 72 A.2d 260 (1950), for the proposition that an illegal arrest is an assault and battery, thereby justifying the use force to resist. Rousseau, 40 Wash. 2d at 95. The Robinson court said "an illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right, and only the same right, to use force in defending himself as he would have in repelling any other assault and battery." Robinson, 72 A.2d at 262. The Supreme Judicial Court of Maine set Robinson aside in 1978, however, holding "Robinson no longer states the law of Maine." State v. Austin, 381 A.2d 652, 653 (Me. 1978). Construing as a whole several sections of Maine's penal code, the court concluded, "The legislature has thus cast the advantage on the side of law enforcement officers, leaving the person arrested in most cases to pursue his rights, not through violent self-help, but through prompt hearing before a magistrate with prompt consideration for release on bail or personal recognizance." Austin, 381 A.2d at 655 (footnote omitted).

Thus, the theoretical footings on which we based our decision in Rousseau have eroded with the passage of time. It is therefore meet and fitting that we reconsider now the bases for our decision in Rousseau. Reconsidering cases such as Rousseau "enables the law under stare decisis to grow and change to meet the ever-changing needs of an ever-changing society and yet, at once, to preserve the very society which gives it shape." State ex rel. Washington State Fin. Comm. v. Martin, 62 Wash. 2d 645, 673, 384 P.2d 833 (1963).

1. Historical Background of the Common Law Rule. The English common law right forcibly to resist an illegal arrest was established almost three hundred years ago in The Queen v. Tooley, 92 Eng. Rep. 349, 351-52 (1909). The facts of Tooley are necessary for proper analysis, but, unfortunately, are rarely discussed in the cases. *fn7 A statute enacted in the twenty-seventh year of the reign of Elizabeth I for the purpose of "reformation of disorders" allowed certain officials of London to "hear and punish incontinencies." Tooley, 92 Eng. Rep. at 349. One nonmedical meaning of incontinent is unchaste, or of unrestrained sexual appetite, or lewdness. Pursuant to a warrant issued in accordance with this statute, Constable Samuel Bray set about rounding up the "usual suspects" within the City of Westminster. Between 8 and 9 o'clock on the night of March 8, Constable Bray apprehended Mistress Anne Dekins "in the street between the play-house and the Rose Tavern." Tooley, 92 Eng. Rep. at 349. He suspected her of being a disorderly person, having previously arrested her for being disorderly. The trial court later disagreed with Bray, finding that he had no reason to arrest her, as she was not misbehaving at the time.

On the way to jail, three men, all strangers to Anne Dekins, drew their swords and attempted to rescue her from Constable Bray's custody. The case does not say what motivated these three strangers to attempt the rescue. The constable "shewed" them his constable's staff, and declared himself to be on the Queen's business. They chose then to desist and Bray "carried the woman to the round-house[.]" Tooley, 92 Eng. Rep. at 350. An important point is that the three strangers did not see the unlawful arrest of Mistress Dekins; they saw her only under restraint as Bray led her to jail.

Shortly thereafter, with Mistress Dekins safely locked up, the same three men again assaulted Constable Bray outside the jail for the purpose of obtaining her release. Bray called for assistance, and Joseph Dent came to his aid. One of the three then killed Dent with a sword. The issue at trial was whether the three were guilty of murder or manslaughter. Under the law at the time, one who killed another without provocation was guilty of murder. If provocation were present, the crime was manslaughter. Thus, the question for the court was whether the arrest of Mistress Anne Dekins was sufficient provocation to the three strangers to excuse their actions and prevent a conviction for murder.

The case was argued on appeal "before all the Judges of England at Serjeant's-Inn in Chancery-Lane," and resulted in a 7-5 verdict for manslaughter. Tooley, 92 Eng. Rep. at 352. Chief Justice Holt of the King's Bench delivered the decision of the court:

The prisoners [the accused] in this case had sufficient provocation; for if one be imprisoned upon an unlawful authority, it is a sufficient provocation to all people out of compassion;

much more where it is done under a colour of Justice, and where the liberty of the subject is invaded, it is a provocation to all the subjects of England. . . . Constables have an authority by the statute to arrest persons, but that must be by warrant from the Justices of the peace; but in this case there was no warrant. Tooley, 92 Eng. Rep. at 352. To the argument that the three strangers could not have been provoked because they were strangers to Mistress Dekins, the Chief Justice answered: "but sure a man ought to be concerned for Magna Charta and the laws; and if any one against the law imprisons a man, he is an offender against Magna Charta." Tooley, 92 Eng. Rep. at 353.

But how could three strangers who did not even witness the arrest know the arrest was unlawful? Chief Justice Holt rejoined, "but surely ignorantia facti will excuse, but never condemn a man. Indeed, he acts at his peril in such a case, but he must not lose his life for his ignorance." Tooley, 92 Eng. Rep. at 353. In other words, the three strangers acted at their peril -- had it been decided later that the arrest was in fact lawful, they would have been found guilty of murder. Because the court later determined the arrest to have been unlawful, the court held they had been properly provoked, and could be guilty only of manslaughter, not murder.

The important point to note is that Tooley is not about Mistress Anne Dekins's right to resist her unlawful arrest. It is about the right of others, strangers, to resist her unlawful arrest. The "provocation" the Tooley court spoke of was not the provocation of Mistress Dekins. It was the provocation of the three strangers at seeing someone unlawfully imprisoned, and whether that provocation provided sufficient reason to reduce their conviction from murder to manslaughter. Nevertheless, the Tooley rule has come down to us as a rule permitting an arrestee to use the necessary force (but no more) to resist an unlawful arrest. *fn8 To understand why an unlawful arrest was such a great provocation as to affect "all people out of compassion," it is necessary to look at the historical evidence of the state of English prisons in the eighteenth century.

2. English Prisons. Professor Sam Bass Warner of Harvard Law School was instrumental in the 1940's in setting forth the historical background leading to the abandonment of the Tooley rule in the majority of states. "The [Tooley] rule developed when long imprisonment, often without the opportunity of bail, 'goal [sic] fever,' physical torture, and other great dangers were to be apprehended from arrest, whether legal or illegal." Sam B. Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 330 (1942).

In an earlier article, Professor Warner described in more detail the horrors awaiting those arrested:

Since jailers were held responsible for escapes and many jails were constructed for some other purpose and hence easy to break out of, prisoners were often kept in irons. Those without the means to buy better accommodations were frequently huddled together in dark, filthy rooms, in close proximity to depravity and disease. Under such conditions, imprisonment until the next term of court was often equivalent to a death sentence, especially during the frequent periods when prisons were swept by a malignant form of typhus known as "gaol fever." *fn9 In 1759 an English authority estimated that each year a fourth of the people in prison died there. *fn10 Sam B. Warner, Investigating the Law of Arrest, 26 A.B.A. J. 151, 152 (1940). Others have also chronicled the deplorable conditions of English jails:

In several prisons there was no food allowance; in others it consisted of a meager bread ration. "Water soup" (bread boiled in water) was not uncommon fare. Prisoners who received bread allowances on alternate days were so hungry that they often ate the entire amount the first morning and then went hungry the rest of that day and the next. Persons who entered jail in the picture of health, emerged scarcely able to move from hunger, and incapable of any labor for weeks thereafter.

No medical facilities were available in the prisons. The air was foul and noxious from the "effluvia" of the sick and the lack of sewage facilities. Prisoners were crowded together in close rooms and underground dungeons and chains were often required to prevent escape. Men were not separated from women, nor the sane from the insane. . . .

In addition, every incident of prison life from admission to discharge was made the occasion for levying fees against the prisoners. There were charges for the arrest, for the privilege of detention in this or that part of the prison, for bed and bedding, for food and other "conveniences" of life, and for release. In Massachusetts at the end of the seventeenth century those who were unable to pay their fees "might be sold for life or a period of years into the service of anybody willing to pay their fees." Comment at 122 n.16 (citation omitted) (quoting Warner, Investigating the Law of Arrest, 26 A.B.A. J. 151, at 152). As one commentator put it, "Where imprisonment was often the equivalent of a death sentence, or at least, a living death, one can understand why men resisted unlawful arrest." Comment at 123. One can also understand why, as the Tooley court said, an unlawful arrest was a great provocation affecting "all people out of compassion." Tooley, 92 Eng. Rep. at 352. The common law rule set out in Tooley plainly resulted from conditions that no longer exist.

3. Modern Arrest and Incarceration. In Washington today the law provides those arrested with numerous protections that did not exist when the common law rule arose. Reasonable bail is available. Wash. Const., art. I, {*16} sec. 20; Westerman v. Cary, 125 Wash. 2d 277, 291-92, 892 P.2d 1067 (1994). At any critical stage in a criminal prosecution a defendant has a right to appointed counsel under both the federal constitution's Sixth Amendment and our state constitution's article I, section 22 (amend. X). Coleman v. Alabama, 399 U.S. 1, 7, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970); Heinemann v. Whitman County, 105 Wash. 2d 796, 799-800, 718 P.2d 789 (1986). Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), held the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest. None of these rights was available in 1709. "The right to resist developed when the procedural safeguards which exist today were unknown." State v. Hatton, 116 Ariz. 142, 568 P.2d 1040, 1045 (1977).

Not only has criminal procedure advanced to protect the rights of the accused, jails themselves are no longer the pestilential death traps they were in eighteenth century England. Recent Eighth Amendment litigation of prisoners' claims of cruel and unusual punishment has established certain constitutional standards for prisons. See, e.g., Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (prohibiting "deliberate indifference to serious medical needs"), reh'g denied, 429 U.S. 1066, 50 L. Ed. 2d 785, 97 S. Ct. 798 (1977); Gregg v. Georgia, 428 U.S. 153, 173, 183, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (prohibiting the "unnecessary and wanton infliction of pain," which includes sanctions so lacking in penological justification that they constitute the "gratuitous infliction of suffering"), reh'g denied, 429 U.S. 875, 50 L. Ed. 2d 158, 97 S. Ct. 197, 97 S. Ct. 198 (1976). The United States Supreme Court "has determined that most of the constitutional rights contained in the Bill of Rights survive incarceration." Michael B. Mushlin, Rights of Prisoners 13 (2d ed. 1993).

Thus, "in this era of constantly expanding legal protection of the rights of the accused in criminal proceedings, an arrestee may be reasonably required to submit to a possibly unlawful arrest and to take recourse in the legal processes available to restore his liberty." Commonwealth v. Moreira, 388 Mass. 596, 447 N.E.2d 1224, 1227 (1983). "The concept of self-help is in decline. It is antisocial in an urbanized society. It is potentially dangerous to all involved. It is no longer necessary because of the legal remedies available." State v. Koonce, 89 N.J. Super. 169, 214 A.2d 428, 436 (1965). We agree.

4. The Trend Away From the Common Law Rule. In 1966, the right to resist an unlawful arrest was recognized in 45 out of 50 states. At that time the five states that had abrogated the right were Rhode Island, New Hampshire, Delaware, California, and New Jersey. Max Hochanadel & Harry W. Stege, Note, Criminal Law: The Right to Resist an Unlawful Arrest: An Out-Dated Concept?, 3 Tulsa L. J. 40, 46 (1966). By 1983, however, 25 of those 45 states had revoked the common law rule either by statute *fn11 or decision, *fn12 and today, only 20 states have it in place, while resisting even an unlawful arrest is prohibited by law in 30 states. "This common law principle has suffered a devastating deluge of criticism." State v. Thomas, 262 N.W.2d 607, 610 (Iowa 1978) (rule is "an anachronistic and dangerous concept"). Thus, the hold of the common law rule has weakened substantially in the last 30 years as jurisdiction after jurisdiction has modernized its jurisprudence to reflect the differences in criminal procedure in late twentieth century America as compared to early eighteenth century England. "The trend in this country has been away from the old rule and toward the resolution of disputes in court." Moreira, 447 N.E.2d at 1226.

Courts addressing the question have set out many cogent and compelling reasons for consigning the common law rule to the dustbin of history. For example:

While society has an interest in securing for its members the right to be free of unreasonable searches and seizures, society also has an interest in the orderly resolution of disputes between its citizens and the government. ( United States v. Ferrone (3d Cir. 1971) 438 F.2d 381, 390.) Given such competing interests, we opt for the orderly resolution through the courts over what is essentially "street Justice." *fn13 Evans v. City of Bakersfield, 22 Cal. App. 4th 321, 27 Cal. Rptr. 2d. 406, 412 (1994).

While defendant's rights are no doubt violated when he is arrested and detained a matter of days or hours without probable cause, we conclude the state in removing the right to resist does not contribute to or effectuate this deprivation of liberty. In a day when police are armed with lethal and chemical weapons, and possess scientific communication and detection devices readily available for use, it has become highly unlikely that a suspect, using reasonable force, can escape from or effectively deter an arrest, whether lawful or unlawful. His accomplishment is generally limited to temporary evasion, merely rendering the officer's task more difficult or prolonged. Thus self-help as a practical remedy is anachronistic, whatever may have been its original justification or efficacy in an era ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.