resisting detainment?

LE are allowed by law to handcuff you for your and their safety.

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More like, for THEIR safety, not yours.

If it's an illegal detention it's illegal period.

"Is there a law against not letting them cuff you if you are not being actually arrested?"

If there is it will be settled in a courtroom in front of a judge, not on the side of the road arguing with the police that you know more than they do.

John

AntiqueCollector said:

If it's an illegal detention it's illegal period.

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The legality of resisting an unlawful arrest (and maybe detention) varies widely from state to state. For a conviction of a crime of "resisting arrest" that really pre-assumes that the arrest was a legal one to begin with. By extension, if it wasn't a 'legal arrest' then to resist such arrest was not illegal.

So - people could resist arrests made without authority to do so, such as arrests made under an invalid statute, or without a warrant or probable cause. However, many states have passed statutes limiting the ability of people to resist even unlawful arrests. While it might be legal to resist an unlawful arrest, it will depend on the rules of the jurisdiction exactly what is allowed.

That brings up the quesiton "What can a person do to resist an unlawful (false) arrest?"
Again, it depends ..... If the state does allow someone to resist an unlawful arrest, there are limits on what can be done:

You could only use the amount of force that would be considered to be 'reasonably necessary'. Some states have limited this even further by refusing to allow any force against police officers who are performing their authorized duties, regardless of whether the arrest is legal.
Some states also have exceptions for good faith arrests, where an arrest by a police officer acting in good faith cannot be resisted.
A person cannot resist arrest because he believes the law under which he is being arrested is unconstitutional.

So - all that brings up the question, "What should I do if I am arrested unlawfully?"

Because of the limits in many states, resisting an unlawful arrest can be a very risky thing. In most states, it will still be a crime to resist a police officer, even if the arrest would be illegal.

It can be very difficult to know under what circumstance, if any, it is permissible to resist arrest and what amount of force can be used.
Because of this, if you are being arrested you should go peacefully.
If you then feel that you have been wrongfully arrested, you can file a complaint for police misconduct and then follow up with a civil suit.

While I agree that sometimes and in some states a person may utilize force to resist an illegal arrest, I am not sure that a detention would rise to the same level. I certainly would offer that a layman would find it very difficult to know what is, and is not, an illegal arrest. Since the police have a far wider latitude to detain people than they do to arrest people - I submit that the average person on the street would have not be able to tell a legal arrest from an illegal one.

but i admire pioneer spirit so if there exists someone who can make a stand , in real life as opposed to mouthing on the net, and then report how the court case works out it would be fun to hear about

One thing a lot of folks don't realize, or fail to work out, is that if you're being put in hand cuffs, whether legal or not, you will not help your cause by resisting. Period. You can verbalize that you're not a threat or danger to anyone. You can calmly request that you be let out of the handcuffs, or you can request that the officer give you information regarding the circumstances under which you will be let out, but really, arguing or resisting will just give them articulable cause for really locking you up good.

Remember, even if you're being treated unfairly, being courteous and attempting to the best of your physical abilities to comply with the officer will go a long way.

Once you're let out of the handcuffs and are free to go, make sure you collect business cards from the officer or officers that detained you, politely leave, and then call a lawyer to discuss your "case." Better still, be polite all the way through getting a copy of the report, then hit them hard with their own evidence.

The very first traffic school I took was focused on how to get out of a ticket, and NOT ONE SUGGESTION was about how to get the cop to let you off - they were all how to use the legal system to have it waived or thrown out. Don't tip your hand when you're in the moment.

"When the fox gnaws, smile!"

Resisting a police officer by force (unless you feel he is illegally endangering your life) is something I would approach carefully. LEOs can used "necessary force" to complete their duties--they are not bound by "equal force."

What does that mean? Well, as an LEO intstructor once mentioned to me, "If I pull a guy over for speeding, and he gets out of his car and gets in my face, well, he's just volunteered for PR-24 baton practice!"

Unappealing.

Basically the harder you resist, the more force they will apply. Since, depending upon the jurisdiction, they may have thousands of officers at their disposal, resistance is in fact futile. Comply on the scene and resist via legal channels after the fact. The grace with which you deal with the bad situation on scene may well have a positive impact later when you litigate.

They just cannot let up if you physically resist or they'd be run over by the thugs of which you're not one. I mean unless we're talking Nazi Gestapo here (not an analogy...the real Gestapo) and you are willing to kill and be killed to make your point or to resist, give it up a live to litigate another day.

There was that case in FL a ways back that I think was discussed here.

The very first traffic school I took was focused on how to get out of a ticket, and NOT ONE SUGGESTION was about how to get the cop to let you off - they were all how to use the legal system to have it waived or thrown out. Don't tip your hand when you're in the moment.

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Ain't that the truth .... on a traffic stop, the person that yells and 'mouths off' on the side of the road is usually the one that is less likely to file a complaint or fight you in court.
Often, if a person files a complaint, or mounts an effective defense in court, they are usually the ones that said nothing on the side of the road and quietly accepted the summons.

Resisting detainment is going to get you one thing, and one thing only....

.... a beating until such time that you stop resisting (if you are lucky). And since there are many cops, and only one of you, when the orig officer gets tired of beating on you he'll just tag team off to the next guy.

Make 'em pay later ... but keep your teeth. Don't resist.

I'm not a lawyer but i am knowledgeable about the law. Never physically resist anything. I advise you to learn your 4th amendment rights and use them. Even if you have nothing to hide I'd tell the officer clearly "I know my rights and I'm not giving you permission to search the vehicle or my person." Making it clear that you know your rights will surely get the officer to be a bit more careful around you.

Don't get me wrong. If the officer is just trying to do his job don't give him hell just tell him in a respectful tone that you don't wish to be searched. I know many LEO's and they all pretty much agree that they don't take it personally when someone doesn't let them search their car and usually they then admit that they don't have enough to go ahead and do the search anyway.

So don't ever physically resist but use the law to your advantage!

Remember, even if you're being treated unfairly, being courteous and attempting to the best of your physical abilities to comply with the officer will go a long way.

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It's funny how similar that sounds to "just give a robber what they ask for."

In the past, the use of force to resist unlawful arrest was a common-law right. Today, that is not the case. The reasons for this change were to preserve public order, discourage violence against authority, and encourage recourse through the courts.

Unfortunately, this is the fox guarding the hen-house. I've seen far too many cases where recourse via court is ineffective, even for egregious situations.

In a free society where the police are always honest and good, this would not be a problem. Unfortunately we don't live in a utopia. And even if one assumes that the police are benevolent, and the courts would curtail abuse, there's no guarantee that those conditions will remain in the future. Criminalizing self-defense against illegitimate authority would help enable the transformation of that utopia into an oppressive state.

The place you have that argument is in court. You hire a lawyer to argue the case for you. You will lose on the street.

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I'd argue that this is often insufficient for justice. It costs a lot of money to bring a case to court, and the courts seem to be sympathetic to the police. On a few occasions, I've seen lawyers tell people that they have a good case but it's not worth pursuing.

ETA: I'm not saying I think resistance is a good idea... it isn't. I'm making an argument, based on justice, of what should be.

Mr. White, there is a flip side to your argument; it could be used to justify just about any oppressive act by totalitarian, fascist, or communist governments around the world. Judges and juries should not have the power to do away with basic rights. (Neither should legislators, for that matter.) In some sense, isn't that what this board is all about?

Your argument essentially boils down to "freedom is anarchy" -- and if that's the case, then I'll take anarchy, thank-you-very-much. I'm not saying that individuals should necessarily decide what authority is legitimate or illegitimate in general; however, it's clear that some acts are illegitimate. Do you deny this?

You have the right to self defense against illegitimate authority, it's called the courts.

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Calling upon the government to protect you from the government? You really think that's a fundamentally sound idea? I guess we don't need that 2nd amendment then...

Resisting is a very bad idea. Be polite, be compliant, as soon as you are free to leave, do so. If you have been mistreated, make a complaint and contact a lawyer. You may not get much satisfaction without considerable effort, but do not, under any circumstances attempt to argue or resist an officer who is belligerent.

I know that goes against the grain, but cops that are inclined to, can beat you within an inch of your life if you give them the opening.

My .02. . .

Here is the deal, I am all about the rights of the citizenry, but you have to understand different environments. Now I am retired and live in a very small town in PA. Not a lot of violence so the police may not be used to dealing with it. Where I worked as a police it was very violent. If there was a shooting or a stabbing and someone was unfortunate enough to be an obvious witness they go to the station to get interviewed. We ask nice one time and then the cuffs go on. If you resist then you get treated like anyone else that resists with an appropriate level of force. Most people that are subjected to this were thugs/hood rats.

The is not one of these cases that can be judged without knowing the totality of the circumstances. One thing I do know is that like dealing with all other people your mouth and demeanor play a huge part when dealing with the police.

Like I said, if you want that kind of freedom, then you have the right to move to where it's practiced. Somalia, Chad...there are a lot of places in the world that are essentially lawless.

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When did I say anything about lawlessness? Possessing the right to resist an unlawful use of force does not imply lawlessness.

If you aren't saying that individuals should decide what's a legitimate use of authority and what's not, what are you saying? This thread is about the OP asking if he could resist being handcuffed by the police while being detained. Who would you have decide that if not the individual?

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There are two issues here: (1) what constitutes lawful or legitimate use of force by authority, and (2) is a particular instance where force is used legitimate?

The former category is defined by law, though again that law should be required to comport with fundamental rights and freedoms. Then, for the latter case it should be simple enough for an individual to recognize legitimate from illegitimate conduct.

The founding fathers did when they divided the government into three separate branches. The courts do a good job of protecting people from the government. Maybe not as good as some of us would like, but when the courts rule, the government will follow the ruling.

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The founding fathers also organized and fought a rebellion against illegitimate authority. Subsequently, they provided for an unorganized militia, guaranteed the use of arms equal to anything available to the government of the day. On occasion they expressed admiration for the concept... the tree of liberty being refreshed by the blood of patriots, etc. I'm not advocating a revolution, I'm merely pointing out that the founders had a deep respect for the common-law right that you're arguing against here.

I'd have to say that most of the people I arrested during my 22 years as a police officer would have stated at the time of arrest that they weren't guilty and I was abusing my power.

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I can't say that I've had much to do with the police... I stay out of trouble. As a result, it's difficult for me to imagine being lawfully arrested or detained. But I read about unlawful occurrences on a daily basis, it seems.

So how would you deal with that under your freedom system? Not detain or arrest anyone until after the trial?

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Do you really believe that reinstating the right to resist an unlawful arrest is likely to change the behavior of criminals subject to a just arrest?

ETA: Am I the only one who finds it... strange... that the laws under discussion protect people (police) who engage in unlawful conduct?

99% of the time it's only the criminals that resist anyways. In Montana being detained is something completely different from being under arrest. Still the charges for resisting both are identical.

I suspect that Harvster was not alluding to violently resisting the misappropriation of justice by an apparatus of terror (the Gestapo) to assure the compliance of the people.

In the Third Reich, law was debased beyond recognition. It became a tool of hatred and viciousness — the very antithesis of everything normally connoted by the notion of law: justice, goodness, fairness, due process, protection of the individual against the excesses of government, even morality.