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With all of the attacks on our rights, the fines for not wearing a mask, the court cases for opening your business, and the arrests for defying illegal government orders, one question probably comes to mind. What if law enforcement comes for me? We’ve all been told, by schools, by lawyers, even by television dramas, not to resist law enforcement. But what if they are trying to arrest you unlawfully? Two cases, over a century apart, show that the American people are not defenseless against illegal arrests.
Glenn v. The State
Our story begins with the Georgia case Glenn v. The State. In the evidentiary hearing conducted by the trial court, both testimony and body-camera evidence were presented:
On May 3, 2018, an Athens-Clarke County police officer responded to a “suspicious person” call in the area of the Oglethorpe Elementary School shortly after students were dismissed at 2:30 p.m. The responding officer drove around the school property in his patrol car, and for a few seconds, he saw Glenn walking on the inside of a line of trees and shrubbery that bordered the road behind the school. The officer testified that he radioed to his dispatcher that he was “getting out [of his patrol car] with a subject matching the description given by the initial  caller.”
The responding officer approached Glenn and called out to him, “let me talk to you real quick.” Glenn asked if he was being detained. The officer responded, “yes,” ordered Glenn to stop walking and to sit down, and radioed for backup. Glenn, who remained standing, asked the officer why he was being detained and said, “I’ll tell you my name. It’s Christopher Glenn. I’m walking home.” The officer told Glenn that he was “conducting an investigation” and that, if Glenn moved, he would be charged with obstruction and, if he tried to flee, the officer would “use force” if he had to.
Shortly after backup arrived, Mr. Glenn was handcuffed, searched, and told he was going to have to take a seat in a patrol car. Mr. Glenn asked, “I want you to tell me right here, what am I being detained for?” One of the officers told him, “for suspicion of a crime. A sexual assault crime against a minor.” Mr. Glenn told the officer that he was dehydrated, so medical personal were called and Mr. Glenn was placed in the treatment area of an ambulance. The supervising officer ordered Mr. Glenn to be removed from the ambulance stating he would be evaluated by jail personnel. Mr. Glenn refused to exit the ambulance, and the officers physically dragged him to the door, where Mr. Glenn flung himself toward the officers, head-butted the supervising officer, then went limp. When the officers tried to get him into the patrol car, Mr. Glenn kicked and struggled, falling onto another officer and knocking him down. Continued attempts to get Mr. Glenn into the patrol car were met with similar resistance. At one point the supervising officer knocked Mr. Glenn to the ground. At some point, Mr. Glenn damaged the door of the patrol car. Eventually, the officers were able to get Mr. Glenn into the patrol car, where they tied his legs, secured his feet to the floor, and then took him to jail. A day after his arrest, a warrant was issued for Mr. Glenn’s arrest for violating the conditions of his probation by committing new offenses, loitering and prowling, obstruction of a law enforcement officer, and interference with government property. Two weeks later Georgia filed a petition to revoke Mr. Glenn’s probation because of these offenses.
At a hearing on the revocation of Mr. Glenn’s parole, the State of Georgia argued that Mr. Glenn committed the offense of loitering and prowling by “walking along the wooded edge of an elementary school as the school was being let out”, that Mr. Glenn committed the offenses of obstruction and interference with government property by “physically resisting in multiple ways at multiple points in time” while being “detained . . . pending further investigation of the reason for [the officers’] dispatch”. The state also argued that even if Mr. Glenn’s arrest was unlawful, meaning he did not commit obstruction, he was still guilty of damaging government property. Mr. Glenn argued that the evidence shows that the responding officer did not have probable cause to arrest him for loitering and prowling, thereby making it legal for him to resist an unlawful arrest.
When the case went to trial:
The trial court determined that the evidence did not support a finding by a preponderance of the evidence that Glenn had committed the offense of loitering and prowling. Specifically, the trial court found that, on May 3, 2018, the officers did not observe Glenn in a place at a time or in a manner not usual for law-abiding individuals and found that there was no evidence of any circumstances of the type listed in the applicable statute as warranting alarm for the safety of persons or property in the vicinity. The trial court noted that the officers involved failed to give Glenn, prior to arresting him, an opportunity to explain his presence and conduct so as to dispel any alarm or immediate concern which would otherwise be warranted. The trial court also determined that the evidence did not support a finding by a preponderance of the evidence that Glenn had committed the offense of obstruction, because there had been no basis to arrest Glenn for loitering and prowling.
Game, set, and match, yes? No.
But the trial court found by a preponderance of the evidence that Glenn had committed the felony offense of interference with government property by damaging the patrol car door. Specifically, the trial court found that, even though Glenn’s arrest for loitering and prowling was unlawful, he had no legal justification for damaging government property once he was in handcuffs and sitting in the patrol car.
The case was appealed, but the Georgia Court of Appeals found that while Mr. Glenn did have the right to resist with force his unlawful arrest, the amount of time that lapsed between being placed in the patrol car and damaging the vehicle was too long, and that since his reaction was not immediate to his arrest, the damage was an intentional act. At this point, the case was appealed to the Georgia Supreme Court, whose opinion went into a lengthy description of the history of legal resistance to an unlawful arrest. The opinion of the court read:
Generally, under the common law, a person cannot be punished for fleeing from or physically resisting an unlawful arrest or escaping from unlawful detention, so long as the person uses no more force than is necessary to achieve such purpose. See United States v. Di Re,
The Georgia court based its opinion on the case United States v. Di Re which in turn was quoting the 1900 case Bad Elk v. United States. The Bad Elk case questioned whether someone could be charged with murder for using lethal force to avoid an unlawful arrest. Reading from the syllabus of that case:
Three policemen in South Dakota attempted, under verbal orders, to arrest another policeman for an alleged violation of law when no charge had been formally made against him and no warrant had issued for his arrest. Those attempting to make the arrest carried arms, and when he refused to go, they tried to oblige him to do so by force. He fired and killed one of them. He was arrested, tried for murder, and convicted.
During the trial the judge charged the jury:
“The deceased, John Kills Back, had been ordered to arrest the defendant; hence he had a right to go and make the attempt to arrest the defendant. The defendant had no right to resist him. It is claimed on the part of the defendant that he made no resistance, and he was willing to go with the officer in the morning. I charge you, of course, that the officer, John Kills Back, had a right to determine for himself when this man should go to the agency with him. In this connection, I desire to say to you, gentlemen of the jury, that the deceased, being an officer of the law, had a right to be armed, and for the purpose of arresting the defendant, he would have had the right to show his revolver. He would have had the right to use only so much force as was necessary to take his prisoner, and the fact that he was using no more force than was necessary to take his prisoner would not be sufficient justification for the defendant to shoot him and kill him. The defendant would only be justified in killing the deceased when you should find that the circumstances showed that the deceased had so far forgotten his duties as an officer, and had gone beyond the force necessary to arrest defendant, and was about to kill him or to inflict great bodily injury upon him which was not necessary for the purpose of making the arrest.”
In short, the judge all but ordered the jury to find the defendant guilty because, as a law enforcement officer, John Kills Back had the right not only to arrest the defendant, but to use force to do so, even though the order he was given was unlawful. In other words, this judge instructed the jury that you, as a citizen, are subject to the whims of law enforcement, even if their actions are unlawful. Let’s examine that claim for a minute.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
You have a right to be secure from unreasonable seizure. In neither the Bad Elk case nor the Glenn case, did the arresting officers have a warrant or direct observation of a crime. In both cases we see law enforcement officers ordering the arrest and seizing people without any legitimate reason to do so. In both cases we see an expectation that citizens are subjects of law enforcement, expected to shut up and do what they’re told, even if what is happening to them is illegal. In the Bad Elk case, we see judicial malpractice when the trial judge tells the jury that a law enforcement officer has the right to make an illegal arrest. Thankfully, in both cases, the courts eventually came to the right opinion.
What can we learn from these two cases? First of all, we should recognize that we are free citizens, not subjects of the state. A government official, even a law enforcement officer, does not have the right to make an unlawful arrest. That as free citizens it’s our right, or as I would say, our duty, to resist such unlawful seizures with all of our abilities. Keep that in mind when you see videos of people standing up for their rights, breaking into their own businesses that were illegally boarded up, or resisting arrest for not wearing a mask.
Second, we need to recognize that the courts are not the solution to all of our problems. Yes, in both these cases the correct opinion was eventually handed down, but that was only after years of fighting for their rights. Imagine yourself at the defendants’ table when a judge instructs the jury that you do not have the right to defend yourself against an illegal arrest. Then remember all of the court opinions that said government can infringe on your rights if they have a good reason to.
Lastly, these cases show how important it is that we know our rights and how to defend them properly. Not simply by asserting your rights with law enforcement, but having the ability to assist in your defense should you be the victim of unlawful actions by government officials.
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