Resisting arrest is not a crime. It is a common-law right, the exercise of which is treated as if it were a crime.
The act of resistance was transmuted into a criminal offense chiefly through judicial activism, rather than legislation. Courts that seek to criminalize resistance have generally made the pragmatic argument that resistance is more dangerous than submission. We’ve long since reached the point where the reverse is often the case.
Until 1942, when the Interstate Commission on Crime published the Uniform Arrest Act, every state recognized and protected the right to resist. Under the still-controlling U.S. Supreme Court precedent, John Bad Elk vs. US, a citizen faced with the prospect of unlawful arrest – that is, an armed abduction – has a legally protected right to use any appropriate means, including lethal force, to defend himself.
The Bad Elk ruling came in 1900. Thirteen years later, the New Mexico State Supreme Court, in Territory v. Lynch, tried out a line of sophistry that would become part of the standard refrain in judicial rulings six decades later:
“The law … calls upon the citizen to exercise patience, if illegally arrested, because he knows he will be brought before a magistrate, and will, if improperly arrested, suffer only a temporary deprivation of his liberty.”
In other words: If a cop seeks to abduct you without legal justification, you should submit in the serene confidence that your deprivation of liberty will be temporary and trivial. I have referred to this as the “Rapist Doctrine,” since rapists and police officers are the only assailants whose victims are encouraged to submit.
One hundred years after the New Mexico State Supreme Court published that ruling, the case of New Mexico resident Stephen Slevin demonstrates that this assurance is a cynical lie.
In 2005, Slevin – who was battling depression and driving a car lent to him by a friend — was stopped for driving under the influence. He was put into a special cell reserved for people suspected of being suicidal. After three days, he was transferred to solitary confinement — where he remained for two years.
Although some may regard the traffic stop to be considered justified, and the initial arrest to be defensible, what happened to Slevin offers a stark and compelling demonstration of what can happen to anyone who finds himself immured in one of the Regime’s penal facilities. What was done to him is indistinguishable from the kind of criminal abuse associated in the public mind with prison facilities in Cuba and North Korea. More importantly, it is entirely typical of what happens in jails and prisons here in the putative Land of the Free.
Prolonged solitary confinement is a form of torture. In Slevin’s case, isolation was compounded with aggressive neglect as he literally rotted in his cell.
Despite repeated pleas for medical attention, Slevin developed skin fungus and bedsores. Deprived of dental care, Slevin was eventually forced to extract a tooth by himself. His toenails grew so long that they curled under his feet, his hair and beard grew to be long and unkempt, and he lost fifty pounds.
As his body decayed, Slevin’s mind degenerated. Already depressed at the time of his imprisonment, Slevin fell prey to hallucinations.
“I have not slept in days,”Slevin wrote to a nurse a couple of weeks into his solitary confinement. “I’m in a deep depression.” He also mentioned a lack of appetite, and that he was being afflicted with “weird and bizarre” dreams.
“I’m afraid to close my eyes,” he wrote in a plaintive letter to the jail’s “nurse practitioner,” an official with a bachelor’s degree in psychology and no medical credentials or experience. The “nurse” responded by prescribing a dose of sedatives.
The habeas corpus guarantee requires that anyone arrested by the police be quickly brought before a judge and either formally charged or released. Slevin, who was sent to solitary after failing to post $40,000 in bail, was never given a judicial hearing. If it weren’t for the intervention of his sister, who became concerned after Slevin stopped replying to her letters, Slevin would have died in jail without ever being charged with a crime.
Once he was released, Slevin filed a lawsuit against Dona Ana County. After a five-year legal struggle, Slevin was awarded $22 million by a federal court– one million dollars for every month he had been unlawfully incarcerated.
The county, which refused to discipline anybody responsible for Slevin’s imprisonment and torture, and refuses to answer questions about the crime committed against that man, protested that the civil judgment was excessive, and eventually agreed to a $15.5 million tax-funded civil settlement. This may still seem like an extravagant amount until it’s understood that the 59-year-old victim suffers from terminal lung cancer.
“The law cannot restore an arm, an eye, or a life; it can and does restore freedom,” wrote Ralph D. Smith of the University of New Mexico School of Law in a 1967 law school journal essay. His point was that “self-help” by citizens confronted with the prospect of unlawful arrest is impermissible, because they are dealing with people – that is, police officers – who have legal sanction to kill them if they resist.
“Life and liberty, though equally precious, cannot be viewed on the same plane where self-help is concerned,” Smith continues. “Liberty can be secured by a resort to law, life cannot.” A good case can be made for the proposition that Slevin’s illegal incarceration was terminal. Furthermore, unjust deprivation of liberty for any length of time is a grave and ineffaceable injury.
“If one is unlawfully arrested today, his period of confinement is likely to be brief,” wrote Smith, offering a glib assurance of the kind that comes easily to those who are paid well to defend the indefensible. “In the seventeenth and eighteenth centuries” – that is, the period in which British courts handed down rulings explicitly recognizing the common law right to resist arrest – “bail was usually unattainable. Today, it is freely granted for most offenses.
Requirements of a prompt hearing and arraignment before a magistrate also serve to protect today’s citizen from a lengthy unjustified detention.”
None of that was true in the case of Stephen Slevin, who suffered the theft of two years that were stolen from a life that was further abbreviated by the unpunished abuse of those who illegally imprisoned him.
During the less-enlightened times in which courts recognized that citizens had the right to avoid illegal arrest and detention, Smith continues, an improperly detained individual could be confined for months, and then “re-incarcerated until he had paid certain fees demanded by the jailer, the clerk of the assize, clerks of the peace, and the like.” What he describes is exactly the same arrangement that prevails today in a probation and parole system that encourages probation and parole officers to find excuses to “violate” their charges as often as possible in order to recycle them through the mechanism.
“Seventeenth and eighteenth century prison conditions might well induce resistance to arrest, if only to keep out of jail,” observes Smith. The same was true not only in the case of Stephen Slevin, but also that ofCalifornia resident Daniel Chong, who was held, handcuffed, in isolation and darkness, for five days without being charged with a crime in April of last year.
Chong was deprived of food, water, and bathroom facilities. When he was finally released, Chong – who had begun to suffer from hallucinations — asked his captors to kill him. He was hospitalized with severe dehydration and renal failure. The officials responsible for this crime have never been punished, nor have they so much as apologized to Chong.
The late Nick Christie likewise had every reason to put up resistance when he was taken into “protective” custody by Lee County, Florida sheriff’s deputies in 2009. Christie, a resident of Cleveland, had gone to visit a brother in Florida. His wife was concerned that the 62-year-old man, who had been diagnosed with psychological problems, had left his medications behind. She made the familiar and reliably fatal mistake of calling the police for “help.”
Christie, who was detained on a spurious “trespassing” change, was shackled for nearly two full days in a restraint chair. His captors hooded the victim and repeatedly attacked him with military-grade pepper spray. Christie begged for the jailers to remove the “spit mask” from his face, complaining that he couldn’t breathe. When medical personnel were finally permitted to see Christie, they were overwhelmed by the pepper spray. When they attempted to treat him, the corrosive chemical residue was so potent it ate through their latex medical gloves.
This innocent man, who suffered from respiratory and heart disease, was tortured to death. His death was ruled a homicide. The State Attorney’s office refused to indict the officials who kidnapped and fatally tortured Christie, insisting that there was no evidence of “criminal wrongdoing.” (That prosecutor, Assistant State Attorney Dean R. Plattner, had a long history of indifference regarding criminal violence by police officers.)
Writing more than four decades ago, as efforts to repudiate the right to resist arrest were gaining momentum, Arthur Smith insisted: “Because of the evolution in criminal procedures, jail conditions, and the increased danger from resistance, an individual is less likely to be provoked at what he considers an unlawful arrest in 1967 than he would have been in 1767.”
By 2013, it should be obvious to all honest and observant people that the only material difference between the medieval system Smith described and the one that confronts us now is the fact that British subjects had a legally recognized right to resist unlawful arrest.
Resistance may be dangerous, but submission is frequently fatal.