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78 Yale L.J. 1128 (1968-1969)
The Right to Resist an Unlawful Arrest

handle is hein.journals/ylr78 and id is 1150 raw text is: The Right to Resist an Unlawful Arrest Paul G. Chevignyt Conflicts between police and citizens in recent years have achieved increasing notoriety, bringing into prominence the legal problems sur- rounding the crime of obstructing an officer or resisting arrest.' On the one hand, obstructive tactics such as going limp have become a common occurrence in political demonstrations; on the other, police sometimes use resisting arrest and similar charges to cover errors- including false arrests and the use of excessive force-made during street demonstrations and in individual confrontations.2 As the charge of resisting an officer has become more common, the right to resist un- lawfully exercised authority has become part of the passionate political conflict over law and order.3 Last year, Wainwright v. New Orleans4 presented the Supreme Court with the issue of a citizen's right to resist unwarranted and unlawful police action. The New Orleans police stopped Wainwright, a Tulane law student, allegedly for questioning concerning a murder. When he refused to submit to a search, he was taken into custody and forcibly searched at a police station. Ultimately, he was charged with resisting an officer and breach of the peace by assaulting an officer, charges which arose from his conduct in the police station. The Supreme Court con- t Staff Attorney, New York Civil Liberties Union. B.A. 1957, Yale University, LL.B. 1960, Harvard University. 1. A typically general statutory provision is that of the N.Y. PENAL LAW § 195.05 (McKinney 1967): A person is guilty of obstructing governmental administration when lie intentionally obstructs, impairs or perverts the administration of law or other governmental func. tion or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act. Obstructing governmental administration is a class A misdemeanor. Resisting arrest is separately defined in §§ 120.05 and 205.30. The crime of assaulting an officer includes elements which may be part of the charge of obstructing or resisting an officer, the chief difference being that obstruction is made out by a mere refusal to go quietly after an arrest, while assault requires an active touching. Other possible charges arising out of conflicts with the police are disorderly conduct, People v. Tiuston, 6 Misc. 2d 485, 163 N.Y.S.2d 554 (Magis. Ct. 1957), and even rioting, Commonwealth v. Crotty, 92 Mass. (10 Allen) 403 (1865). 2. PRES. COIMM. ON LAW ENFORCEMENT AND THE ADMINISTRATION OF JUSTICE. TASK FORCE REPORT ON THE POLICE 182, 195 (1967); E. CRAY, THE Bic BLUE LINE, chs. I, IV (1966); P. CHEvicNY, POLICE POWER, passim (1969). 3. In this article the term right is used only to mean justification sufficient to reduce or remove criminal liability. It will be argued that patently illegal arrests present such strong provocation that a citizen should not be criminally liable for reasonable resistance. 4. 392 U.S. 598 (1968) (per curiam). 1128

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