Police, The Fourth Amendment, Qualified Immunity

11th Circuit recognizes Georgia’s right to resist unlawful arrest

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Case: MERENDA v. TABOR, No. 12-12562 (Eleventh Circuit, February 1, 2013) (unpublished)


[Georgia State Patrol Officer Justin Tabor] argues that he also had probable cause, or at least arguable probable cause, to arrest ]plaintiff] Merenda for obstructing an officer. An individual commits misdemeanor obstruction when he “knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties.” Ga. Code Ann. § 16-10-24(a). Tabor contends that Merenda obstructed him by resisting arrest, and the evidence does indicate that Merenda held his arms stiffly when Tabor attempted to put them behind his back. However, this contention adds nothing to Tabor’s defense because it is dependent upon the validity, or arguable validity, of the arrest. Under Georgia law, Merenda was entitled to resist arrest if the arrest was unlawful. Mullis v. State, 27 S.E.2d 91, 98 (Ga. 1943) (“Where an arrest is not lawful, the person sought to be so arrested, contrary to his right if the arrest had been lawful, has the right to resist, and in doing so has a right to resist force with force proportionate to that being used in unlawfully detaining him.”) (quotation marks omitted); see also Traylor v. State, 193 S.E.2d 876, 878 (Ga. Ct. App. 1972) (“The defendant had the right to leave, and to ignore or defy the arrest, if said arrest was illegal.”). Merenda also did not commit any crime when he walked away from Tabor. Strickland v. State, 594 S.E.2d 711, 715 (Ga. App. Ct. 2004) (“[D]uring the course of [a detention without a particularized and objective basis for suspecting criminal activity], a citizen is free to ignore requests and/or to walk away, and . . . no charge of obstruction [will] lie. . . .”). Because Tabor did not have probable cause to arrest Merenda, Merenda was within his rights to hold his arms stiffly, even if that arm position could be reasonably understood as resisting arrest.

My Commentary:

I have seen much commentary saying that the right to resist unlawful arrest doesn’t matter because it is always unwise to resist any arrest, lawful or unlawful for prudential reasons (that is, chances are that the police will injure one who resists, perhaps grievously). I agree that one should not resist arrest, but I disagree that this makes the law on resisting arrest not matter and the present case illustrates why.

The arrestee in this case wasn’t resisting or obstructing. The police officer’s allegation of obstruction was that the arrestee kept his arms too stiff as they were being successfully handcuffed. That is not obstruction, the prosecutor knew it and nolle prosequi‘d the obstruction charge. The police officer still wanted to use the unavailing obstruction charge as a defense to the civil suit. Thankfully, Georgia’s right to resist unlawful arrest prevented a jury trial (and perhaps a wrong decision) on that issue. In other words, in this case, the right to resist unlawful arrest mattered a lot even though the plaintiff did not actually resist arrest. In fact, even if there had not been a good video, and the police officer made up some more egregious form of resistance (for example, said that the plaintiff pushed him away), then this sort of lying would still not matter due to the Georgia right to resist unlawful arrest.

Not only does the right to resist unlawful arrest matter in cases where there is no actual resistance, but it also matters in cases where the police officer effects an unlawful arrest violently, just for the purpose of provoking some action that can be argued to be obstruction or resistance. Once a police officer (one with no grounds for lawful arrest) starts hitting or spitting or testicle squeezing or electroshocking or siccing a K9 or whatever, then it becomes difficult, perhaps impossible, for the arrestee to forbear from trying to obstruct. Nevertheless, under the law of some states, these reactions to a physical attack by police will justify an arrest that had not been justified prior to the attack. The right to resist unlawful arrest prevents this sort of gamesmanship by police officers. In fact, my guess would be that this is exactly why the common law bestowed a right to resist unlawful arrest in the first place (if interested, look up the Bad Elk case for more on that). In this case, plaintiff did not resist the needlessly violent (in addition to being unlawful) arrest, but not everybody has, or should be expected to have, plaintiff’s degree of toleration of violence against his person.

In short, the right to resist unlawful arrest is due for a comeback, and I am glad it has remained alive and well in the state of Georgia.

Written by Burgers Allday

February 9, 2013 at 8:12 am

Posted in Uncategorized

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