Recently, social media has been awash in high-profile uses of force by law enforcement. The most recent was the arrest of a nurse at a Salt Lake City hospital.
The incident raises many important questions:
- Can a person physically resist law enforcement during an unlawful arrest?
- Can bystanders join in with you?
- Should a person physically resist an unlawful arrest?
For the purposes of this analysis, I am going to refer to Virginia law and pretend this is fantasy-land and that maybe the arrest happened in the Commonwealth of Virginia, of which I am most familiar.
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The video shows nurse Alex Wubbels reciting to Salt Lake City Detective Jeff Payne a hospital policy (and apparently agreed upon by the police department) that only allowed handing over a sample upon one of three conditions: if there is consent, the suspect was under arrest, or there was an electronic warrant on file to seize the blood. Payne had none and admitted such on camera.
At this point, Payne informed Wubbels that she was “under arrest.” The nurse pulls back, protesting the imposition of force. He then grabs her by the arm and bear hugs her; pushing her out of the Emergency Room. He pushes her against an outside wall and places her in handcuffs.
Replete in the video is various staff, such as other hospital workers and security, as well as at least one uniformed Salt Lake City police officer. No one comes to her aid.
It is well-settled that a person is entitled to resist an unlawful arrest.
Where an officer tries to effectuate an unlawful arrest, the law considers the officer an “initial aggressor.” The arrestee, thus, has the right to use self-defense to resist so long as the force used is reasonable. See Foote v. Commonwealth, 11 Va. App. 61, 69 (1990); see also Annotation, Modern Status of Rules as to Right to Forcefully Resist Illegal Arrest, 44 A.L.R. 3d 1078 (1972).
In determining what is reasonable, the amount of force by an arrestee must be proportional, “in relation to the harm threatened.” Diffendal v. Commonwealth, 8 Va. App. 417, 421 (1989).
A lawful arrest, when made with unlawful force, may be resisted. Palmer v. Commonwealth, 143 Va. 592, 602-03 (1925); Foote, 11 Va. App. at 66. That is because “[a]n arrest utilizing excessive force is a battery because that touching is not justified or excused and therefore is unlawful.” Gnadt v. Commonwealth, 27 Va. App. 148, 151 (1998).
This could conceivably be the case in the event of an officer shooting at someone for say, a reckless driving ticket – if no safety factor is perceived by the officer, such as sudden furtive movements by the driver.
As we can see, a person can both resist an unlawful arrest and a lawful arrest effectuated with unlawful force. It, therefore, should go without saying that a person is not entitled to resist a lawful arrest. Brown v. Commonwealth, 27 Va. App. 111, 116-17 (1998). Common sense would suggest this is the law in all, if not most, jurisdictions in the United States.
Authorization to make a warrantless arrest is limited to those situations is frequently provided for in a state’s criminal code. See Code §§ 19.2-77, 19.2-81, 19.2-100 (Virginia). The lawfulness of an attempted arrest would thereby be determined by those laws. See Foote, 11 Va. App. at 65 (citing Code § 19.2-81).
A prevailing practice of law enforcement, in cases similar to what happened in Salt Lake City, is to charge individuals for obstruction of justice if the officer is carrying out a lawful duty. See Code § 19.2-81.
Without considering implied consent, which does not appear applicable, the detective’s actions were not authorized under law.
Applied In The Hospital Case
Applied to the hospital case, the nurse could have actually physically resisted – only proportionally – the effort to arrest her. It appears that would entail attempting to rip her arm from the officer or push him off of her.
Obviously, that would not have been successful.
Her conduct would then be privileged to exert such force as would be proportional to his efforts to grab her arm, put her in a bear hug, push her out the door, and to handcuff her.
To the extent the detective elevated his quantum of force, she could do the same to repel the attacker. Some courts, generally in other contexts, have ruled that a victim could use artificial means – objects, for example – in the event they are physically weaker, to repel an initial aggressor.
Could hospital staff, such as security officers, have legally joined in the fray to free the nurse? Absolutely. But again – only using such force as was necessary to repel the detective’s unlawful arrest. They could not strike the detective after freeing the nurse from his grasp, for example.
The entire scales of justice would have shifted had any participant aiding the nurse committed any physical action against an officer independent of, and not required to, free the nurse.
One can come to the aid of someone in a physical altercation only if the person they are defending was without fault in provoking the fight. By that same token, the other officer, in uniform, could conceivably be committing a criminal act by physical contact with those attempting to free the nurse, because the officer would know the detective was the initial aggressor.
Therefore, officers watching the incident could not have struck Wubbels if she chose to defend herself because Payne was the initial aggressor as his conduct was not privileged or lawful.
An arrestee has a legal right to resist an unlawful arrest or a lawful arrest done with unlawful force. Others can join in to free the arrestee if the officer is (i) the initial aggressor, (ii) the arrestee is blame-free, and (iii) the arrest is without probable cause or a warrant.
All this said I would highly urge people to never, ever resist a law enforcement officer’s display of physical force used to effectuate an arrest. It would only work in this scenario because the detective’s conduct was (i) on camera and in plain view of everyone and (ii) clearly unlawful by all objective standards.
The real reason that it never pays to resist an arrest is that you never know what legal justification may have existed at the time of arrest. Had the hospital hypothetical been ever-so-slightly different and the detective actually had an electronic warrant, everyone that came to the aid of a resisting nurse could be criminally charged. This could have even been the case if he didn’t tell anyone he had a warrant.
Had Payne even had one slight justification to arrest Wubbels, such as public swearing, criminal charges for her resisting and those attempting to free her could have ranged everywhere from obstruction of justice to assault and battery of a law-enforcement officer, which carries a mandatory minimum period of incarceration of six months in jail in Virginia. He would have had the authority to arrest in those scenarios because they would have been committed in the presence of the officer. See Va. § 19.2-81.
In the judicial sphere, those short, few seconds usually takes months – if not years – to see the light of day. Witnesses have bias and perception issues, sometimes misremembering. Prosecutors may convince a judge that even though a legal basis for arrest did not exist, that the officer had a good-faith basis to do so, thereby potentially legitimizing the arrest.
Yes, a person can resist an unlawful arrest.
However, good prudence and common sense dictate that an arrestee should just “let it happen” then challenge it – and the underlying charge(s) – later in court.
UPDATE (9/8/17): A LEO friend of mine said that you can’t resist an unlawful arrest in New Jersey, yet, if, “officers employs excessive and unnecessary force, the citizen may respond or counter with the use of reasonable force to protect himself, and if in doing so the officer is injured no criminal offense has been committed.” Source.