FREE KEVIN WALSH

To: AZRKBA@asu.edu 
Subject: Re: Resisting unlawful actions 
From: John Wilde  
Date: Thu, Aug 12 2004 10:26:24 AM -0700  

The federal case law still supports the right to resist an unlawful
arrest.  It was that line of cases that finally freed the Spans after
nearly 10 years.

   There is an Arizona statute (A.R.S. Section 13-404.B.2), that
prohibits the use of physical force against even an unlawful arrest when
you know that the person attempting to make the arrest is "peace officer".

   My argument around that is.  First it is facially unconstitutional,
because an unlawful arrest would be tantamount to kidnapping and if an
officer was going to put himself in the position of committing a
kidnapping under the guise of an arrest, I have the right to conclude
that this officer has no true regard for my safety and might just carry
his unlawful action further in an effort to cover up his first misdeed.
Second, since I knew the arrest was unlawful, then that peace officer
knew or should have known his attempted arrest was unlawful, which means
I would be entitled to an inference to believe that this person was
impersonating a peace officer.  The peace officer should know better,
after all a trained peace officer would not permit himself to be put in
a position to make an unlawful arrest and because the unlawful arrest
was attempted I am entitled to conclude that he must not really be a
peace officer and I therefore acted accordingly to defend myself.

   They might avoid a constitutional problem if the statute were to
also provide that once an arrest is found to be a false arrest, that the
officer may not assert an affirmative defense of qualified immunity.  In
other words, once it is found that the arrest was false there is an
admission that the arrest was false should result in strict civil
liability at a minimum against the arresting officer.

g'day
John Wilde

RD wrote:

> I know the bias of the Court is that one cannot resist unlawful arrest
> because the Court will apply due process and make everything nice again.
>
> What are the limits of such resistance in Arizona and around the country?
>
> Thanks,
>
> Rick
>
>