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Bratton: There is No Constitutional Right to Resist Arrest

December 10, 2014  | 

Police Commissioner Bill Bratton sent New Yorkers an important message back in August in the wake of Eric Garner’s death, allegedly by police chokehold: There is no constitutional right to resist arrest.

“What we’ve seen in the past few months is a number of individuals failing to understand that you must submit to arrest, you cannot resist,” Bratton said in an interview on Brian Lehrer’s radio show. “The place to argue your case is in the court, not in the street.”

It’s a critical point, and one Bratton’s made before. We just wish he wasn’t the only public official sending that message, the New York Post reports.

The simple fact, painful as it may be for some to acknowledge, is that Eric Garner would be alive today if he’d cooperated when cops tried to arrest him for illegally selling loose, untaxed cigarettes.

Instead, he argued with police, refused to put his hands behind his back, accused them of harassing him and vowed, “It ends today.”

Comments (33)

Displaying 1 - 33 of 33

Forrest @ 12/10/2014 1:16 PM

How does one not have the right to resist a bad arrest? That's like saying that the time to argue an unwarranted search of your home is in the court, months after the fact, rather than at the door when cops want to search your house.

Yes, we absolutely have the right to resist arrest in some cases. No, Eric Garner should not have resisted, as he was actually breaking the law, but to say that there is zero right to defend yourself against an illegal arrest is absurd.

Greg @ 12/10/2014 2:13 PM

Forest, wasn't he breaking some city or municipal code by selling cigarettes without a license?

Ima Leprechaun @ 12/11/2014 12:05 PM

Actually Commissioner Bratton is wrong. Resisting an unlawful arrest is legal and it is taught to every Police Officer in basic training. Bratton should know better. [email protected]: Bratton was talking in general not on a specific subject.

Mike @ 12/11/2014 3:53 PM

Actually no the statues tend to read "resisting legal or illegal arrest". So your wrong the place is court to argue not the street. That's where adults who are responsible and mature make their case to a judge. When your resist you become mike brown or Eric garner and could potentially die. You have no right ever under any state law in the United states to resist any arrest legal or illegal hence why we have a justice system. If you don't like the system vote to change it or move. You won't be missed.

TheRookie @ 12/11/2014 4:15 PM

People tend to forget that R.S. stops/contacts can be derived from nothing. Weaving within a single lane allows one to stop you & possibly derive P.C. Always made sure to issue that citation, too. If one is acting strange, staggering, or otherwise suspicious L.E. has the powers to contact & ID you. So, when you actually think you have the right to resist arrest you don't. We're talking apples & oranges on this. Many jurisdictions have muni-codes to establish over-riders on that fallacy. Always loved dealing with Street Attorney hacks.

Ima Leprechaun @ 12/11/2014 7:46 PM

Traffic violations are a whole different problem and not considered a custodial arrest. At least, not until you put the cuffs on them then you're into a whole new ball game. But its not illegal to resist an illegal arrest anywhere in the USA but you would have to prove your case in court. I thought (dummy me) I didn't need to tell L.E.O.'s that the place to make your case is in court. You are the kind of people I had to write G.O's for, the least common denominator or the stupidest person on the department.

kevCopAz @ 12/11/2014 9:07 PM

Ima & Forrest don't know where you two learned basic police work but in AZ the law states that you can not resist ANY arrest, even if illegal. If you do the original charge may be tossed out and you can sue but you will be arrested (legally) and prosecuted for the resisting of your arrest. If your logic was correct then if an officer's arrest was considered illegal by the defendant, he shoots and kills the officer, and then proves the arrest was illegal then he would walk…ridiculous!. Courts are where one seeks regress of grievances from any illegal/unlawful arrest not the streets, Bratton is right. perhaps he can tell that to some of the ball less chief's around the nation (Ramsey & the chief in Richmond Ca for two). Forrest, you are an idiot. You can NOT stop an "unwarranted search " of your house. You may object at the time, but if the cops come in, you MUST submit and NOT resist or you have broken the law and are an idiot since if you are correct and it is unwarranted and illegal

Mike F. @ 12/11/2014 10:22 PM

KevCopAZ, what are you talking about. The Fourth Amendment and its progeny have always ensured freedom and protection from unwarranted searches and seizures. No, a citizen does NOT have to submit and allow the entry of an LEO without a proper warrant. Where do you think you operate -- pre-Revolution America?

Steve @ 12/12/2014 6:21 AM

Kev..... I understand your point but you HORRIBLY misstated your Intended meaning.

Lt Dan @ 12/12/2014 6:32 AM

So I knock on a door on a noise complaint. The door is ajar and opens. I look in and there are drugs on the coffee table, marijuana, a water pipe, and I smell marijuana. Now, I don't have a warrant to enter the house. But I do have probable cause and plain view. As I step in, the person I have yet to see screams at me, let me see your search warrant. He and I are of different races. I have no search warrant and he THINKS because I don't have a warrant to search his house, he should resist.

I just happened onto a very bad day. In 1990 when this happened, all was well. Since our president called out Sgt. James Crowley and came doen on the side of Henry Louis Gates this has been building.

Sucks to be a night shift rookie right now. I feel for my brothers.

JD @ 12/12/2014 8:06 AM

Seeing he is a New York City Police Commissioner he is covered under NYS Law. So he is completely 100% correct in his statement. In NYS you are NOT allowed to resist period.
Resisting Arrest:
NY Law, a Suspect, in almost all cases, may not use force to evade an arrest, even if such arrest is illegal, when the Suspect knows the individual is a Police Officer. This is known as the "No Sock Rule".

Dean Collins @ 12/12/2014 8:09 AM

In Wisconsin v. Hobson, the Wisconsin Supreme Court in 1998 stated: "In sum, the majority of jurisdictions has concluded that violent self-help is antisocial and unacceptably dangerous. We agree that there should be no right to forcibly resist an unlawful arrest in the absence of unreasonable force. When persons resist arrest, they endanger themselves, the arresting officers, and bystanders. Although we are sympathetic to the temporary deprivation of liberty the individual may suffer, the law permits only a civilized form of recourse. . . . Justice can and must be had in the courts, not in the streets." Thus, in Wisconsin and many other states, the common law right to resist a truly illegal arrest has been abrogated. When it comes to determining what is a legal arrest, the officer trained in the law should receive the benefit of the doubt over an arrestee. (Still serving as a law enforcement officer with 44 years of service from foot beat cop to assistant chief of police.)

Mike F. @ 12/13/2014 5:02 AM

KevCopAz, you actually surprised me. I thought I might receive some sort of rationally based and half-ass articulated argument.

Instead, you both discredited anything you've previously argued and at the same time made us all question if you're actually a real cop. If so, nobody "in your district" is safe. You're the kind of rogue officer these very laws are written for.

kevCopAz @ 12/13/2014 11:19 AM

This is the REAL Kev COP. I have no idea who the one is who posted after the initial post. Please do NOT pay attention to the later posts coming from someone who does not have the balls to use their own address.

kevCopAz @ 12/13/2014 12:21 PM

Mike F,

again the 2ed comment was NOT me. What I was saying is that you can be arrested for resisting even an "illegal arrest/". You can not use force to stop any search of your home, if you do you run the chance of being arrested and convicted of resisting arrest. IF the warrant or warrantless search proves later to be unlawful, then you can sue in court and make a formal complaint to the PD (and win both), that is your avenue of grievance, not resisting the officer. The authorities will then deal with that officers either lack of training or his criminal intent. Its NOT for you to do. Sorry about the "hacker/impostor" what a idiot.

kevCopAz @ 12/13/2014 12:22 PM

Mike F as far as your reaction to the "ghost" kevcop, I agree with you he is obviously not now or has ever been a real cop and is an idiot The REAL KevCopAz.

kevCopAz @ 12/13/2014 12:24 PM

Dean Collins hit it on the head. Correct no right to resist an "unlawful arrest or search". Courts will be on your side if you do not and sue later. That is what a normal, thinking citizen does, not fight with the cops. Thats a recipe for disaster as we all know.

Mike F. @ 12/13/2014 10:01 PM

Hey Kev, no worries. I suspected it was a troll, considering the difference in tone from the first to second posts.

Also, I agree with your latter distinctions...from an attorney's perspective, I meant someone doesn't have to allow entry (open the door) to a warrantless request. If you guys are already in, or even if you breach your way in, yeah the resident better just stay put and comply. Early laws allowed citizen use of force to repel an illegal entry and search, but our modern courts have found this too often to propagate violence especially in instances where either the LEO or the resident is mistaken in ther belief.

Although I can't say I blame the citizen who pulls on a mistaken no-knock/announce at 03:00. Anyone here ever had that happen?

Ima Leprechaun @ 12/14/2014 3:14 AM

[email protected] Again YOU assumed way too much, the arrest has to be illegal period, not as determined by the defendant but illegal as determined by the law. If you actually read the comment you would have seen that much but I make a mistake by assuming you can read. Mike [email protected] isn't even in Law Enforcement. I never even mentioned anything about search warrants, as Mrs. Mapp will tell you, you cannot stop a search warrant but you can take it to the Supreme Court. (Mapp V Ohio)

Dan @ 12/14/2014 11:22 AM

A person may not use force to resist an arrest made by one he knows or has reason to know is performing his duties regardless of whether the arrest is illegal when charged pursuant to MCL 750.81d. Because MCL 750.81d does not require a showing that defendant's arrest was lawful, we reverse.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

Mike F. @ 12/14/2014 11:11 PM

Kev, you did mention search warrants, by using the term "unwarranted" not once, but twice. Instead of taking shots at me for failure to read, maybe try spending some time learning to write more clearly so people can comprehend. And me not being a cop has no bearing on my sharing legal knowledge on this forum as one who works WITH you guys every day. Save your angst for the people who deserve it.

Leon Rogers @ 12/29/2014 7:29 PM

You have the right to use force to to defend yourself (resist) where you believe that cooperating would result in your grave bodily harm or death.

If I were stopped and questioned, cooperated, was handcuffed, and THEN the leo tackled me and started slamming my head on the ground, I could legally defend myself. If I tried to fight the leo instead of letting him cuff me, he could legally use force to subdue me.

36 states explicitly make even non-force resisting arrest illegal during an unlawful arrest, but they assume the the leo knew at the time that he was making an unlawful arrest.

Since it is exceedingly rare that either circumstance would actually happen, it's kind of a moot point.

duggles @ 3/3/2015 10:27 AM

Who arrests the police? We need an uber police force to police the police.

trooper @ 3/16/2015 9:19 AM

I am a former state police officer. I have arrested and convicted other police officers for excessive force among other crimes. We need to weed out these "bad apples" that give good police officers a bad name. I personally have never made a bad or illegal arrest. Know the law and confer with your prosecuting attorney prior to "kicking" a door. It may save your career or life.

Chip Whitley @ 1/6/2016 11:55 PM

Bratton and everyone claiming he is correct... are all wrong... statutes do NOT overrule U.S. Supreme Court Case Law.

John Bad Elk vs. U.S is still the standing precedence on this issue.

If the arrest is unlawful... then you have the natural and legal right to resist arrest, up to and including deadly force. Of course, if deadly force is used then you will still be charged with manslaughter, but not murder.

Kathleen Martinez @ 7/6/2016 10:43 AM

Your Right of Defense Against Unlawful Arrest. “Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529.

Paul @ 7/7/2016 12:01 PM

Reading the replies does not encourage a sense of safety for citizens. Am I wrong, or is there some form of double standard here? Do police actually feel themselves justified in any action that they may deem necessary during an arrest -- at a whim?

Since when are those responsible for upholding the law, somehow above the law? A police officer should be doubly accountable to the law considering that they are actually trained in the law and cannot claim excuse.

I personally know and respect many police officers. I also know a few that are insults to the badge on their chest. (No, I do not have not committed any crimes, either.) Today, Youtube and other social media outlets are getting filled with videos that SOMETIMES demonstrate clear abuse of force. Many of the videos I have seen where abuse is claimed I saw that the claimant did something astoundingly stupid. However, the number of those sometimes has been increasing.

This citizen's two bits, for what they are worth.

K @ 7/11/2016 8:57 AM

J @ 12/22/2016 4:34 PM

Sounds like that commissioner didn't know what he was talking about, and K won this blog argument lol

J @ 12/22/2016 4:39 PM

@Trooper I wish you were still out there doing what is right. We need more good honest men like you out on all our streets in the U.S.

Jon @ 6/24/2017 1:18 PM

Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.ect ect

James @ 4/18/2018 9:57 AM

So although it may not be a constitutional right you do have the right to resist an unlawful arrest

Richard Groves @ 6/25/2018 7:30 AM

In my home state of Indiana, you absolutely have the right to resist illegal arrest, up to and including deadly use of force. This also transcends into ones home. The current law allowing this believes in the Castle Doctrine and the Stand Your Ground Laws here in Indiana so much that this law came into effect. If, the Police, are making an illegal arrest using any illegal reason or definition, they are by the laws standards committing a criminal act. It is incumbent in this law then that each citizen who is the victim of this criminal act or acts to refuse to cooperate with it and to resist using physical force, up to and including deadly force with a weapon if necessary. I am a former Deputy Sheriff here in Indiana and I would back any of my brothers or sisters to the ninth degree who are legal and correct, if you are not, then you should face the consequences of your actions like anyone else. Just because we wore or wear a badge we are not above the law. Do what is right..

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