— Not long ago, a state’s Supreme Court wrote that a “rule forbidding resistance to an arrest when police officers act in good faith and under color of their authority … recognize[s] that in a society governed by laws our courts are the proper forum for challenges to the misuse of official power and for the vindication of rights.” But it wasn’t the Supreme Court of Indiana in Barnes v. Indiana, the case that’s gotten so much press these last two weeks. It was the Supreme Court of New Jersey, and it was five years ago.
You wouldn’t know it to judge from the media coverage, but Barnes was neither unprecedented nor particularly remarkable. To the contrary, many courts and commentators refer to the “submit and litigate later” model as the “modern” view, because between 1962 and 2007, all but 12 states followed the model penal code in doing away with the right to resist. So far, as arrests outside the home are concerned, Indiana joined them in 1978, when Fields v. Indiana observed that the right “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.”
To understand the exodus from the common law rule, it helps to understand why courts developed a right to resist illegal arrest in the first place.
In 1710, when Queen v. Tooley established the right, there were good reasons to fear mistaken or illegal arrest. Arrests were often made by regular citizens rather than well-trained and regulated police, and prisoners were held for long periods (no court-appointed counsel in those days, and courts weren’t permanently open for business as they are today) in physically wretched conditions (stuffed into overfull, poorly lit, filthy rooms, often in irons, with little food and no medical care).
Inevitably, these prisons — dungeons, really — were routinely devastated by virulent outbreaks of typhus, to the point that it was estimated in 1759 that a quarter of the prisoners died each year. Thus, Prof. Sam Bass Warner notes: “Under such conditions, imprisonment until the next term of court was often equivalent to a death sentence.” These days, a night in the cell is doubtless an unpleasant experience, but the costs of mistaken arrest are lower, the speed with which the situation can be resolved is inordinately greater, and the legal remedies available are immensely better. As a result, by statute or common law development (Barnes is merely the most recent example of the latter), most states have now recognized that the privations against which the right to resist stood sentry don’t exist any more.
In significant part, the negative reaction to Barnes is fed by misunderstanding of what the case says. It doesn’t affect Fourth Amendment rights; it changes nothing about the legality of police entry into homes as some have suggested. Barnes is about remedies: If a man is busy beating his wife or cooking meth, and he believes the police are illegally entering his property, can he start shooting or throwing punches? Or is the legality of the entry, as the Alaska Supreme Court put it in 1969, “a question more properly determined by courts than by the participants in what may be a highly emotional situation”? Barnes says the latter, and there are two very good reasons why that’s correct.
First, because that’s how every other right is vindicated. If you’re pulled over and you don’t think the cop had probable cause, you don’t get to rabbit, still less pull a .45 from the glove box. Illegal searches, seizures, and entries are remedied by suppression of evidence if charges result and a civil lawsuit if not. I said above that the case was unremarkable, and here’s why: Barnes says that your remedy for that kind of police malpractice is the same as your remedy for every other kind of police malpractice. Rarely has so much been made by so many over so little.
And second, because the common law rule is as unworkable as it is obsolete. We talk abstractly about illegal entry, but Fourth Amendment doctrine is exceptionally factbound and complex, and it can take courts years to decide whether a given search, seizure, or entry was illegal. (For instance, in Kentucky v. King, the U.S. Supreme Court decided this month that an entry was legal, reversing the state Supreme Court’s 2010 holding that it was illegal, which had in turn reversed the Court of Appeals’ 2008 holding that the 2005 search was legal.)
So, if it’s lawful to resist illegal arrest, but not to resist legal arrest, who gets to decide whether the entry is legal — and when? Barnes’ critics must answer that the occupant does, in the heat of the moment. That must be their answer because if you have a right to resist, you must decide to use it, or not, at the moment the police enter your house. Not only is it implausible that the average resident can know the relevant facts (were there exigent circumstances? Do they have a no-knock warrant?) and navigate the maze of Fourth Amendment law in the instant available for decision, but think of the effect on law enforcement of such a rule!
If defendants are encouraged to judge the legality of police conduct, they are likely to resolve it in their own favor, turning even perfectly legal arrests and entries into brawls. “Force begets force,” the New Jersey Court of Appeals wrote in 1965, abolishing the right to resist in that state, and police officers performing their duties — even if mistaken about their authority to do so — should not be subjected to “the threat of physical harm at the hands of the arrestee.”
In Fields, the court of appeals felt that, absent excessive force, it “is not too much to ask that one believing himself unlawfully arrested should submit to the officer and thereafter seek his legal remedies in court.” That was correct in 1978, and it’s still right today.
— by Simon Dodd