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Resistance is Futile: The Right to Resist Unlawful Arrest in an Era of Aggressive Policing

NCJ Number
Crime & Delinquency Volume: 46 Issue: 4 Dated: October 2000 Pages: 472-496
Craig Hemmens; Daniel Levin
Date Published
October 2000
25 pages
This article examines the history and current status of the right to resist an unlawful arrest.
Police today are relying on more aggressive tactics in their efforts to fight crime. A common complaint regarding these tactics is that innocent persons are sometimes subjected to unlawful arrest. At common law, there was a right to resist an illegal arrest; the modern trend has been to eliminate the right to resist. Abrogation of the common law right is based on several factors, including the development of modern criminal procedure, the ability to seek redress via other means, and the belief that violence should not be encouraged. The article argues that attacks on the common law right are based on a misunderstanding of the original justifications for the right and that there remains a great need for the right, particularly as new police tactics increase the probability of arbitrary assertions of authority. The right to resist an unlawful arrest simply permits individuals to act at their own peril in challenging authority and protects them from punishment for so doing. Resistance on the street should complement and add to individuals' due process rights. Table, references