Wednesday Writs for 7/31

Sioux Indian Reservation Police, 1882

“You have a constitutional right to resist an unlawful arrest,” or so says a meme popular among certain folks on the internet. Is that true?

The meme often cites the 1893 case of Plummer v. State of Indiana, in which it was held that a person may use even deadly force to resist an unlawful arrest. But the ultimate decision in Plummer came down from the Indiana Supreme Court, not the US Supreme Court and thus any precedential value is limited to Indiana, where subsequent decisions have tempered the holding. But our case of the week, John Bad Elk v. United States, is from SCOTUS, and has also been cited for the idea that one may validly resist an illegal arrest.

Pine Ridge Reservation

[LL1] In March of 1899, John Bad Elk, a member of the Sioux tribe on the Pine Ridge Indian Reservation in South Dakota, was shooting his gun off into the air “for fun”. Mr. Bad Elk was himself a member of the Reservation police, but nonetheless his Captain was displeased. When Bad Elk refused for a few days to come to the office to discuss the matter at the Captain’s behest, he sent a few officers to Bad Elk’s home to bring him in. Notably, there was no complaint filed or any warrant issued against Bad Elk. Bad Elk refused to accompany them, stating that they could take him the next morning. Bad Elk proceeded to go about his business, visiting his mother and a friend while the officers followed him around.

The ordeal came to a head when Bad Elk asked the officers why they were bothering him; he had agreed to go with them the next day. One of the officers pleaded with Bad Elk, saying he knew the rules, being an officer himself. According to Bad Elk, the officer, John Kills Back, took a step toward him and reached for a gun on his hip. According to the prosecution, Bad Elk at that moment fired his own gun, fatally wounding Kills Back.

Bad Elk was tried in US District Court, which has jurisdiction over murder committed by Indians on reservations. At the conclusion of the trial, the judge instructed the jury that the officers had a right to arrest Bad Elk because they had been ordered to do so, and that Bad Elk had no right to resist. Further, instructed the court, “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.”

The jury convicted Bad Elk and sentenced him to hang. He appealed, and SCOTUS issued its opinion a year later.

Justice Rufus Peckham wrote the unanimous decision.

We think the court clearly erred in charging that the policemen had the right to arrest the plaintiff in error and to use such force as was necessary to accomplish the arrest, and that the plaintiff in error had no right to resist it.

The Court went on to explain that, at common law, the killing of an arresting officer would be reduced to manslaughter if the officer had no right to arrest the individual. Furthermore, there was no applicable law which permitted the warrantless arrest of John Bad Elk under the circumstances. In fact, there was no allegation that Bad Elk had even broken a law by shooting his gun off. Therefore, said the Court, the officers had no right to arrest Bad Elk, and the instruction to the jury to the contrary was in error, as was the instruction that Bad Elk had no right to resist:

He, of course, had no right to unnecessarily injure, much less to kill, his assailant; but where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction when the officer had the right to make the arrest from what it does if the officer had no such right. What might be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.

John Bad Elk died in prison while awaiting his retrial, but the holding in his case is, technically, still “good law”. Imagining the application of this rule in the United States today, however, brings to mind all sorts of problematic implications, given the frequency with which arrested individuals claim the arrest to be unlawful, and how often law enforcement manages to nevertheless drum up an ostensably valid reason. Yet, to this day, the US Supreme Court has not explicitly overruled the holding of Bad Elk. It has made no mention of the case since 2001, and then only in a string cite of cases involving warrantless misdemeanor arrests. The last- and only- meaningful discussion of Bad Elk by SCOTUS was in Wainright v. City of New Orleans, 1969, in a dissenting opinion by Justice Douglas, who disagreed with the Court’s decision not to dismiss certiorari in a case involving a defendant’s resistance to a search. There, Douglas lamented that Terry v. Ohio, the “stop and frisk” case, had watered down Bad Elk’s holding of right to resist.

However, many states have statutorily removed the defense of illegal arrest to the charge of resisting, and several state and federal courts have further crippled the holding. Thus, we must conclude that, shockingly, the “you have a right to resist!” meme does not offer a complete picture of the current state of the law.

[LL2] SCOTUS gave Trump a mini-victory last week in allowing parts of the border wall project to continue in the face of a law suit seeking to stop it. The Order is a temporary stay of a permanent injunction issued by the District Court. This means the construction can continue while the government appeals the District Court. Notably, however, the Order, to which Ginsburg, Sotomayor, and Kagan dissented fully and Breyer dissented in part, opines that it seems probable that the plaintiffs in the underlying suit, including among others the Sierra Club, will not prevail against the appeal.

[LL3] Penn Law professor Amy Wax made for debate fodder last week when she opined that the country would be better off with more white immigrants and less immigrants of color. Penn Law has finally decided Wax needs some time to think about what she said-paid, of course.

[LL4] Speaking of Amy Wax, it seems she has a history of provocative statements, such as when she said Christine Blasey Ford should have come forward as a teen, even if there were “consequences for bitching about” what Wax viewed as a harmless, “momentary act of recklessness.”

[LL5] Someone decided it would be fun to pull motorists over for no good reason, an idea which surely could not go badly in any way. Nice idea, but probably should have stayed an idea.

[LL6] A jury in Los Angeles has found that Katy Perry’s Grammy nominated song “Dark Horse” ripped off a 2009 Christian rap song. Now the jury will decide how much Perry and her producers will have to pay.

[LL7] In a refreshing bit of good news out of the Oval Office, Trump issues several pardons and a sentence commutation for some non-violent offenders.

[LL8] The California Bar inadvertently released a list of topics to be covered on this week’s bar exam to a handful of law schools, so they were released to everyone. Good news for the test takers, not so much for all those who’ve had to go in blind over the years.

[LL9] Our dumb criminal of the week comes from 2018, but when you’re so dumb the cops tweet-roast you, you deserve a mention.

H/T to Andrew Donaldson for his excellent takeover of Writs last week while I was off lying on the beach. He did great, no?