← Autodidact Archive · Original Dissent · Avalanche
Thread ID: 4610 | Posts: 2 | Started: 2003-01-25
2003-01-25 14:16 | User Profile
From a mailing list I'm on (for concealed carry):
A man stopped by an policeman in Washington pushed the cop into oncoming traffic and he was killed, and it was ruled by the Supreme court of Washington that it was justifiable because the cop had no probable cause to believe he was involved in a crime and the man was technically under a false arrest.
Cite, please?
Hmm, I believe the above mentioned case is Washington v. Rouseau, 40 Wn. 2d 92 (Supreme court 2/28/1952). The result of the case is somewhat different that said above. In that case the court held that :
"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. John Bad Elk v. United States, 177 U. S. 529, 44 L. Ed. 874, 20 S. Ct. 729; State v. Gum, 68 W. Va. 105, 69 S. E. 463, 33 L. R. A. (N.S.) 150. The extent to which one illegally arrested may carry his resistance when the acts and conduct of the officer do not threaten his life or any great bodily injury, presents a question on which there is considerable conflict of authority. It is generally recognized, however, that a man may not oppose an arrest which merely threatens his liberty with the same extreme measures permissible if an attempt is made on his life, because the individual wrongfully deprived of his liberty has a supposedly adequate redress by a resort to the laws. State v. Gum, supra. There is authority to the effect that, even in the case of an unlawful arrest, the person arrested would be warranted in using force and inflicting personal injury upon the officer only in self-defense, the necessity or apparent necessity for which must appear. State v. Spaulding, 34 Minn. 361, 25 N. W. 793."
"We find ourselves in accord with the supreme court of West Virginia, which, after an extensive survey and summary of the various holdings in that and other states, laid down the rule that the force used in resisting an unlawful arrest must be reasonable and proportioned to the injury attempted upon the party sought to be arrested, and he cannot use or offer to use a deadly weapon if he has no reason to apprehend a greater injury than a mere unlawful arrest. State v. Gum, supra. A similar rule was stated in a recent case, State v. Robinson (1950), 72 A. (2d) (Me.) 260, where it was 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."
"Every man, however guilty, has a right to shun an illegal arrest by flight. The exercise of this right should not, and would not, subject him to be arrested as a fugitive." Thomas v. State, 91 Ga. 204, 206, 18 S. E. 305; cited with approval in Porter v. State, 124 Ga. 297, 52 S. E. 283."
"It is our view that a jury could have found that the appellant, in pushing an officer who had refrained from handcuffing him and who was using no force to detain him, into the path of an oncoming automobile, thereby subjecting the officer to the peril of serious and perhaps fatal injury, used unnecessary force in resisting arrest, and that his actions constituted a criminal assault. Appellant was, therefore, lawfully arrested following the assault, and the Swiss watch found on him by the search that was an incident of that arrest was admissible in evidence against him on the present charge of burglary in the second degree. We therefore conclude that the judge who heard the motion to suppress the evidence did not err in denying that motion, and that the trial judge did not err in admitting the Swiss watch taken from the appellant as an exhibit in his trial on that charge."
You can read the complete test at: [url=http://216.239.57.100/search?q=cache:gcOzLja27-gC:www.mrsc.org/mc/courts/supreme/40wn2d/40wn2d92.htm+40+Wn.+2d+92&hl=en&ie=UTF-8]http://216.239.57.100/search?q=cache:gcOzL...&hl=en&ie=UTF-8[/url]
A jury in San Diego CA concluded the same thing in a very controversial case tried in 1986. One police officer was killed, one was wounded and a citizen ride-along was wounded. The individual who did all that was acquitted of most charges and the remaining deadlocked charges were ultimately dismissed by a judge in a second trial. The case was very controversial at the time but ultimately resulted in changes within the police department. The details are at: [url=http://www.sandiego-online.com/retro/augustretro3.shtml]http://www.sandiego-online.com/retro/augus...ustretro3.shtml[/url]
2003-01-25 14:26 | User Profile
One of the guys (who is a legislative director or something for a big gun-rights group, and used to be an NRA director) added:
Perhaps the most notable case involving this sort of resistance is the Randy Weaver incident on Ruby Ridge, northern Idaho.
Weaver and Kevin Harris were charged with all kinds of things, including the murder of a federal marshal. They were acquitted by a sensible Idaho jury, which accepted their account of the incident and claim of self-defense, after it was shown that the marshals did not identify themselves, and that they shot Weaver's dog, then after his son yelled at one of the cops and fired a shot or two, Sammy Weaver was shot down, too...in the back. Nobody is certain who killed Marshal Bill Degan.