Anne Dekins was a loud-mouthed party girl -- or at least, that's what the arrest warrant suggested. Whatever she may have done in the past, Miss Dekins was quietly minding her own business when Officer Samuel Bray found her on the street and began to haul her away.
Dekins wasnt inclined to go quietly, and she put up a struggle. Her cries for help attracted the interest of several armed men led by an individual named Tooley, who confronted Bray and demanded to know what he was doing to the frantic woman. The officer produced his official credentials and insisted that he was making a lawful arrest for disorderly conduct. When witnesses disputed that description, Bray called for backup.
Tooley and his associates ordered Bray to release the woman, and then took action to enforce that lawful order. After Brays partner was killed in the ensuing struggle, Tooley and his associates were arrested for murder. The trial court threw out the murder charge, ruling that the warrant was defective. Since the arrest was illegal, the court pointed out, Dekins had a right to resist and bystanders likewise had a right, if not a positive duty, to assist her. The defendants were eventually found guilty of manslaughter, but quickly pardoned and set free.
By trying to enforce an invalid warrant, Bray did not act as a constable, but a common oppressor, observed the trial court. Tooley and the other bystanders were properly provoked by the act of aggressive violence against Anne Dekins, and their forceful but measured response first demanding that the abductor release the hostage, then exercising defensive force to free her was entirely appropriate.
Lawless violence against the helpless is a sufficient provocation to all people out of compassion in any circumstance, observed the court, much more where it is done under a colour of justice, and where the liberty of the subject is invaded
. In fact, an act of that kind carried out by a law enforcement official is nothing less than a provocation to all the subjects of England.
Every Englishman ought to be concerned for Magna Charta and the laws, concluded the Queens Bench in the 1710 case Queen v. Tooley. And if any one against the law imprison a man, he is an offender against Magna Charta.
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In early 18th Century England, this was seen as a non-negotiable bulwark against what the heroic Algernon Sidney called the violence of a wicked magistrate who, hav[ing] armed a crew of lewd villains, would otherwise inflict his will on innocent and helpless people with impunity. Sidneys martyrdom at the hands of precisely that kind of degenerate, tyrannical magistrate underscored the vitality of the principle he expressed.
The right to resist unlawful arrest memorializes one of the principal elements in the heritage of the English revolution: the belief that the will to resist arbitrary authority in a reasonable way is valuable and ought not to be suppressed by the criminal law, observed Paul Chevigny in a 1969 Yale Law Journal essay. Actually, Chevigny like many others elides a critical distinction between power and authority: While a police officer may have the power to abduct or abuse an innocent person, citizens have the authority to prevent that crime.
Until the late 1960s, most states recognized albeit grudgingly -- the Common Law right to resist arrest. By 1969, that right had been transmuted, through judicial activism, into a revocable privilege one that had to be dispensed with to serve the interests of the State's punitive caste.
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Prominently citing the Miller decision in Alaska, the Idaho Court observed that More than one state has, without legislative action, modified the traditional common law rule and has adopted the rule that a private citizen may not use force to resist a peaceful arrest, blithely ignoring, once again, the fact that a peaceful arrest is a creature more fanciful than a left-handed unicorn that speaks Norwegian. We are of the opinion that the trend is, and should be, away from the traditional common law rule, and therefore we hold that if a person has reasonable ground to believe he is being arrested by a peace officer, it is his duty to refrain from using force or any weapon in resisting arrest regardless of whether or not there is a legal basis for the arrest.
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Buehler, 34, is a combat veteran of Kosovo and Iraq, West Point graduate, and middle school teacher. He was serving as a designated driver on the morning of New Years Day when he saw a woman being abused by police outside a 7-11. The costumed assailants, officers Pat Oborski and Robert Snider, were conducting what they called a DWI arrest of a woman later identified as Norma Pizana.
To Buehler and his friends, the spectacle looked more like a gang assault.
"We hear a loud scream, and we look over, and we see the cop violently yanking the female out of the car onto the ground," Buehler told local ABC affiliate KVUE. "She is screaming. The other cop ran up and they both sort of grabbed her arms. Her hands were behind her back straight out and they lifted her up by her arms. It looked extremely painful."
With the help of a friend, Buehler began to document this act of "street justice" with his cell phone. That prompted Oborski to confront Buehler, who was not interfering in any way.
According to Buehler, Oborski barked, "What the hell are you taking pictures for?"
"My response was, `I am allowed to. Public official in a public place.'"
As he was trained to, Oborski started to lie in an effort to devise a cover charge against Buehler. First he claimed that Buehler was somehow "interfering with the investigation," which was patently untrue. Then the cop assaulted Buhler by pushing the unresisting man who would have been more than a match for the donut-grazer, had he chosen to fight back up against a truck.
"Once he had me pinned up against the back of the truck he kept leaning in," Buehler continued. "He kept pushing me."
Eventually Oborski got so close that Buehler actually breathed on him which gave him a pretext to accuse the witness of "spitting" on him. With some difficulty, and Sniders help, Oborski wrestled Buehler (who offered only passive resistance) to the ground and handcuffed him. The cops took Beuhler to a BAT van- a patently unreliable mobile alcohol testing unit in the hope of documenting that the witness was intoxicated, which he wasn't. The cop finally settled on charging him with "harassing a public servant" a third-degree felony and "resisting arrest."
As is always the case in incidents of this kind, Buehler wasnt arrested for an actual crime; he was vindictively punished for contempt of cop.
You dont f*** with cops, Oborski snarled at Buehler. You dont get in our f***ing way. You dont question us, and were going to teach you a lesson.
Norma Pizanas plight was strikingly similar to that of Anne Dekins, with at least one critical difference: Dekins and her rescuers were blessed to live in 18th Century England, a relatively civilized society that recognized and protected a free individuals indispensable right to resist State-licensed criminal violence.
