mickeygrimreaperblueeyes
Member
"When a person, being without
fault, is in a place where he has a
right to be, is violently assaulted, he
may, without retreating, repel by
force, and if, in the reasonable
exercise of his right of self defense,
his assailant is killed, he is
justified." Runyan v. State, 57 Ind.
80; Miller v. State, 74 Ind. 1.
"These principles apply as well to
an officer attempting to make an
arrest, who abuses his authority and
transcends the bounds thereof by
the use of unnecessary force and
violence, as they do to a private
individual who unlawfully uses such
force and violence." Jones v. State,
26 Tex. App. I; Beaverts v. State, 4
Tex. App. 1 75; Skidmore v. State,
43 Tex. 93, 903.
"An illegal arrest is an assault
and battery. The person so
attempted to be restrained of his
liberty has the same right to use
force in defending himself as he
would in repelling any other
assault and battery." (State v.
Robinson, 145 ME. 77, 72 ATL.
260).
18 U.S.C. 242
Public Officials who Violate
Constitutional Rights; Penalties
(Felony)
"Whoever, under color of any law,
statute, ordinance, regulation, or
custom, willfully subjects any
person in any State, Territory,
Commonwealth, Possession, or
District to the deprivation of any
rights, privileges, or immunities
secured or protected by the
Constitution or laws of the United
States, or to different punishments,
pains, or penalties, on account of
such person being an alien, or by
reason of his color, or race, than are
prescribed for the punishment of
citizens, shall be fined under this
title or imprisoned not more than
one year, or both; and if bodily
injury results from the acts
committed in violation of this
section or if such acts include the
use, attempted use, or threatened
use of a dangerous weapon,
explosives, or fire, shall be fined
under this title or imprisoned not
more than ten years, or both; and if
death results from the acts
committed in violation of this
section or if such acts include
kidnapping or an attempt to
kidnap, aggravated sexual abuse, or
an attempt to commit aggravated
sexual abuse, or an attempt to kill,
shall be fined under this title, or
imprisoned for any term of years
or for life, or both, or may be
sentenced to death."
The US Dept of Justice website
adds the following commentary:
For the purpose of Section 242,
acts under "color of law" include
acts not only done by federal, state,
or local officials within the scope of
their lawful authority, but also acts
done beyond the bounds of that
official's lawful authority, if the acts
are done while the official is
purporting to or pretending to act
in the performance of his/her
official duties. Persons acting
under color of law within the
meaning of this statute include
police officers, prison guards and
other law enforcement officials, as
well as judges, care providers in
public health facilities, and others
who are acting as public officials.
It is not necessary that the crime
be motivated by animus toward the
race, color, religion, sex, handicap,
familial status or national origin of
the victim.
http://www.usdoj.gov/crt/crim/242fin.htm
In Indiana, the above cites and
18USC242 are further reinforced by
our state’s “Stand Your Ground”
statute (IC 35-41-3-2) and our
statute relating to use of force in
effecting an arrest or preventing
escape (IC 35-41-3-3):
IC 35-41-3-2
Use of force to protect person or
property
(a) A person is justified in using
reasonable force against another
person to protect the person or a
third person from what the person
reasonably believes to be the
imminent use of unlawful force.
However, a person:
(1) is justified in using deadly
force; and
(2) does not have a duty to
retreat;
if the person reasonably believes
that that force is necessary to
prevent serious bodily injury to the
person or a third person or the
commission of a forcible felony. No
person in this state shall be placed
in legal jeopardy of any kind
whatsoever for protecting the
person or a third person by
reasonable means necessary.
(b) A person:
(1) is justified in using
reasonable force, including deadly
force, against another person; and
(2) does not have a duty to
retreat;
if the person reasonably believes
that the force is necessary to prevent
or terminate the other person's
unlawful entry of or attack on the
person's dwelling, curtilage, or
occupied motor vehicle.
(c) With respect to property other
than a dwelling, curtilage, or an
occupied motor vehicle, a person is
justified in using reasonable force
against another person if the person
reasonably believes that the force is
necessary to immediately prevent or
terminate the other person's trespass
on or criminal interference with
property lawfully in the person's
possession, lawfully in possession
of a member of the person's
immediate family, or belonging to a
person whose property the person
has authority to protect. However, a
person:
(1) is justified in using deadly
force; and
(2) does not have a duty to
retreat;
4 Indiana Militia Corps
only if that force is justified under
subsection (a).
IC 35-41-3-3
Use of force relating to arrest or
escape
(a) A person other than a law
enforcement officer is justified in
using reasonable force against
another person to effect an arrest or
prevent the other person's escape if:
(1) a felony has been committed;
and
(2) there is probable cause to
believe the other person committed
that felony.
However, such a person is not
justified in using deadly force
unless that force is justified under
section 2 of this chapter.
(b) A law enforcement officer is
justified in using reasonable force if
the officer reasonably believes that
the force is necessary to effect a
lawful arrest. However, an officer is
justified in using deadly force only
if the officer:
(1) has probable cause to believe
that that deadly force is necessary:
(A) to prevent the commission
of a forcible felony; or
(B) to effect an arrest of a
person who the officer has probable
cause to believe poses a threat of
serious bodily injury to the officer
or a third person; and
(2) has given a warning, if
feasible, to the person against whom
the deadly force is to be used.
(c) A law enforcement officer
making an arrest under an invalid
warrant is justified in using force as
if the warrant was valid, unless the
officer knows that the warrant is
invalid.
(d) A law enforcement officer who
has an arrested person in custody is
justified in using the same force to
prevent the escape of the arrested
person from custody that the officer
would be justified in using if the
officer was arresting that person.
However, an officer is justified in
using deadly force only if the
officer:
(1) has probable cause to believe
that deadly force is necessary to
prevent the escape from custody of
a person who the officer has
probable cause to believe poses a
threat of serious bodily injury to the
officer or a third person; and
(2) has given a warning, if
feasible, to the person against whom
the deadly force is to be used.
(e) A guard or other official in a
penal facility or a law enforcement
officer is justified in using
reasonable force, including deadly
force, if the officer has probable
cause to believe that the force is
necessary to prevent the escape of a
person who is detained in the penal
facility.
(f) Notwithstanding subsection (b),
(d), or (e), a law enforcement
officer who is a defendant in a
criminal prosecution has the same
right as a person who is not a law
enforcement officer to assert selfdefense
under IC 35-41-3-2.
As added by Acts 1976, P.L.148,
SEC.1. Amended by Acts 1977,
P.L.340, SEC.9; Acts 1979,
P.L.297, SEC.2; P.L.245-1993,
SEC.1.
The astute reader can certainly
extrapolate from all of the foregoing
that in Indiana, if you are being
criminally assaulted by someone
who is acting under color of law,
you have the right to defend
yourself against that criminal
assault, using whatever amount of
force is reasonable to terminate that
assault. “One has an undoubted
right to resist an unlawful arrest” -
United States v. Di Re, 332 U.S.
581 (1948)
Moreover, you have the right to
effect an arrest of anyone you have
probable cause to believe has
committed a felony.
The foregoing does not
constitute legal advice or counsel,
but we encourage every reader to
study the legal definitions of those
italicized terms for the sake of
clarity.
The Right of Defense
Against Unlawful
Arrest
http://www.constitution.org/uslaw/defunlaw.htm
“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.
The Court stated: “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 right.
What may 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.”
“When a person, being without
fault, is in a place where he has a
right to be, is violently assaulted, he
may, without retreating, repel by
force, and if, in the reasonable
exercise of his right of self defense,
his assailant is killed, he is
justified.” Runyan v. State, 57 Ind.
80; Miller v. State, 74 Ind. 1.
“These principles apply as well to
an officer attempting to make an
arrest, who abuses his authority and
transcends the bounds thereof by
the use of unnecessary force and
violence, as they do to a private
individual who unlawfully uses such
force and violence.” Jones v. State,
26 Tex. App. I; Beaverts v. State, 4
Tex. App. 1 75; Skidmore v. State,
43 Tex. 93, 903.
“An illegal arrest is an assault and
battery. The person so attempted to
be restrained of his liberty has the
same right to use force in defending
himself as he would in repelling any
other assault and battery.” (State v.
Robinson, 145 ME. 77, 72 ATL.
260).
5 Indiana Militia Corps
“Each person has the right to resist
an unlawful arrest. In such a case,
the person attempting the arrest
stands in the position of a
wrongdoer and may be resisted by
the use of force, as in self- defense.”
(State v. Mobley, 240 N.C. 476, 83
S.E. 2d 100).
“One may come to the aid of
another being unlawfully arrested,
just as he may where one is being
assaulted, molested, raped or
kidnapped. Thus it is not an offense
to liberate one from the unlawful
custody of an officer, even though
he may have submitted to such
custody, without resistance.”
(Adams v. State, 121 Ga. 16, 48
S.E. 910).
“Story affirmed the right of selfdefense
by persons held illegally. In
his own writings, he had admitted
that ‘a situation could arise in
which the checks-and-balances
principle ceased to work and the
various branches of government
concurred in a gross usurpation.’
There would be no usual remedy by
changing the law or passing an
amendment to the Constitution,
should the oppressed party be a
minority. Story concluded, ‘If there
be any remedy at all ... it is a
remedy never provided for by
human institutions.’ That was the
‘ultimate right of all human
beings in extreme cases to resist
oppression, and to apply force
against ruinous injustice.’” (From
Mutiny on the Amistad by Howard
Jones, Oxford University Press, 1987;
an account of the reading of the
decision in the case by Justice Joseph
Story of the Supreme Court.)
Also, in King v. State [246 Miss.
86, 149 So.2d 482 (1963)] “The
right of personal liberty is one of
the fundamental rights guaranteed
to every citizen, and any unlawful
interference may be resisted. Every
person has a right to resist an
unlawful arrest; and, in preventing
such illegal restraint of his liberty,
he may use such force as may be
necessary.”
fault, is in a place where he has a
right to be, is violently assaulted, he
may, without retreating, repel by
force, and if, in the reasonable
exercise of his right of self defense,
his assailant is killed, he is
justified." Runyan v. State, 57 Ind.
80; Miller v. State, 74 Ind. 1.
"These principles apply as well to
an officer attempting to make an
arrest, who abuses his authority and
transcends the bounds thereof by
the use of unnecessary force and
violence, as they do to a private
individual who unlawfully uses such
force and violence." Jones v. State,
26 Tex. App. I; Beaverts v. State, 4
Tex. App. 1 75; Skidmore v. State,
43 Tex. 93, 903.
"An illegal arrest is an assault
and battery. The person so
attempted to be restrained of his
liberty has the same right to use
force in defending himself as he
would in repelling any other
assault and battery." (State v.
Robinson, 145 ME. 77, 72 ATL.
260).
18 U.S.C. 242
Public Officials who Violate
Constitutional Rights; Penalties
(Felony)
"Whoever, under color of any law,
statute, ordinance, regulation, or
custom, willfully subjects any
person in any State, Territory,
Commonwealth, Possession, or
District to the deprivation of any
rights, privileges, or immunities
secured or protected by the
Constitution or laws of the United
States, or to different punishments,
pains, or penalties, on account of
such person being an alien, or by
reason of his color, or race, than are
prescribed for the punishment of
citizens, shall be fined under this
title or imprisoned not more than
one year, or both; and if bodily
injury results from the acts
committed in violation of this
section or if such acts include the
use, attempted use, or threatened
use of a dangerous weapon,
explosives, or fire, shall be fined
under this title or imprisoned not
more than ten years, or both; and if
death results from the acts
committed in violation of this
section or if such acts include
kidnapping or an attempt to
kidnap, aggravated sexual abuse, or
an attempt to commit aggravated
sexual abuse, or an attempt to kill,
shall be fined under this title, or
imprisoned for any term of years
or for life, or both, or may be
sentenced to death."
The US Dept of Justice website
adds the following commentary:
For the purpose of Section 242,
acts under "color of law" include
acts not only done by federal, state,
or local officials within the scope of
their lawful authority, but also acts
done beyond the bounds of that
official's lawful authority, if the acts
are done while the official is
purporting to or pretending to act
in the performance of his/her
official duties. Persons acting
under color of law within the
meaning of this statute include
police officers, prison guards and
other law enforcement officials, as
well as judges, care providers in
public health facilities, and others
who are acting as public officials.
It is not necessary that the crime
be motivated by animus toward the
race, color, religion, sex, handicap,
familial status or national origin of
the victim.
http://www.usdoj.gov/crt/crim/242fin.htm
In Indiana, the above cites and
18USC242 are further reinforced by
our state’s “Stand Your Ground”
statute (IC 35-41-3-2) and our
statute relating to use of force in
effecting an arrest or preventing
escape (IC 35-41-3-3):
IC 35-41-3-2
Use of force to protect person or
property
(a) A person is justified in using
reasonable force against another
person to protect the person or a
third person from what the person
reasonably believes to be the
imminent use of unlawful force.
However, a person:
(1) is justified in using deadly
force; and
(2) does not have a duty to
retreat;
if the person reasonably believes
that that force is necessary to
prevent serious bodily injury to the
person or a third person or the
commission of a forcible felony. No
person in this state shall be placed
in legal jeopardy of any kind
whatsoever for protecting the
person or a third person by
reasonable means necessary.
(b) A person:
(1) is justified in using
reasonable force, including deadly
force, against another person; and
(2) does not have a duty to
retreat;
if the person reasonably believes
that the force is necessary to prevent
or terminate the other person's
unlawful entry of or attack on the
person's dwelling, curtilage, or
occupied motor vehicle.
(c) With respect to property other
than a dwelling, curtilage, or an
occupied motor vehicle, a person is
justified in using reasonable force
against another person if the person
reasonably believes that the force is
necessary to immediately prevent or
terminate the other person's trespass
on or criminal interference with
property lawfully in the person's
possession, lawfully in possession
of a member of the person's
immediate family, or belonging to a
person whose property the person
has authority to protect. However, a
person:
(1) is justified in using deadly
force; and
(2) does not have a duty to
retreat;
4 Indiana Militia Corps
only if that force is justified under
subsection (a).
IC 35-41-3-3
Use of force relating to arrest or
escape
(a) A person other than a law
enforcement officer is justified in
using reasonable force against
another person to effect an arrest or
prevent the other person's escape if:
(1) a felony has been committed;
and
(2) there is probable cause to
believe the other person committed
that felony.
However, such a person is not
justified in using deadly force
unless that force is justified under
section 2 of this chapter.
(b) A law enforcement officer is
justified in using reasonable force if
the officer reasonably believes that
the force is necessary to effect a
lawful arrest. However, an officer is
justified in using deadly force only
if the officer:
(1) has probable cause to believe
that that deadly force is necessary:
(A) to prevent the commission
of a forcible felony; or
(B) to effect an arrest of a
person who the officer has probable
cause to believe poses a threat of
serious bodily injury to the officer
or a third person; and
(2) has given a warning, if
feasible, to the person against whom
the deadly force is to be used.
(c) A law enforcement officer
making an arrest under an invalid
warrant is justified in using force as
if the warrant was valid, unless the
officer knows that the warrant is
invalid.
(d) A law enforcement officer who
has an arrested person in custody is
justified in using the same force to
prevent the escape of the arrested
person from custody that the officer
would be justified in using if the
officer was arresting that person.
However, an officer is justified in
using deadly force only if the
officer:
(1) has probable cause to believe
that deadly force is necessary to
prevent the escape from custody of
a person who the officer has
probable cause to believe poses a
threat of serious bodily injury to the
officer or a third person; and
(2) has given a warning, if
feasible, to the person against whom
the deadly force is to be used.
(e) A guard or other official in a
penal facility or a law enforcement
officer is justified in using
reasonable force, including deadly
force, if the officer has probable
cause to believe that the force is
necessary to prevent the escape of a
person who is detained in the penal
facility.
(f) Notwithstanding subsection (b),
(d), or (e), a law enforcement
officer who is a defendant in a
criminal prosecution has the same
right as a person who is not a law
enforcement officer to assert selfdefense
under IC 35-41-3-2.
As added by Acts 1976, P.L.148,
SEC.1. Amended by Acts 1977,
P.L.340, SEC.9; Acts 1979,
P.L.297, SEC.2; P.L.245-1993,
SEC.1.
The astute reader can certainly
extrapolate from all of the foregoing
that in Indiana, if you are being
criminally assaulted by someone
who is acting under color of law,
you have the right to defend
yourself against that criminal
assault, using whatever amount of
force is reasonable to terminate that
assault. “One has an undoubted
right to resist an unlawful arrest” -
United States v. Di Re, 332 U.S.
581 (1948)
Moreover, you have the right to
effect an arrest of anyone you have
probable cause to believe has
committed a felony.
The foregoing does not
constitute legal advice or counsel,
but we encourage every reader to
study the legal definitions of those
italicized terms for the sake of
clarity.
The Right of Defense
Against Unlawful
Arrest
http://www.constitution.org/uslaw/defunlaw.htm
“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.
The Court stated: “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 right.
What may 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.”
“When a person, being without
fault, is in a place where he has a
right to be, is violently assaulted, he
may, without retreating, repel by
force, and if, in the reasonable
exercise of his right of self defense,
his assailant is killed, he is
justified.” Runyan v. State, 57 Ind.
80; Miller v. State, 74 Ind. 1.
“These principles apply as well to
an officer attempting to make an
arrest, who abuses his authority and
transcends the bounds thereof by
the use of unnecessary force and
violence, as they do to a private
individual who unlawfully uses such
force and violence.” Jones v. State,
26 Tex. App. I; Beaverts v. State, 4
Tex. App. 1 75; Skidmore v. State,
43 Tex. 93, 903.
“An illegal arrest is an assault and
battery. The person so attempted to
be restrained of his liberty has the
same right to use force in defending
himself as he would in repelling any
other assault and battery.” (State v.
Robinson, 145 ME. 77, 72 ATL.
260).
5 Indiana Militia Corps
“Each person has the right to resist
an unlawful arrest. In such a case,
the person attempting the arrest
stands in the position of a
wrongdoer and may be resisted by
the use of force, as in self- defense.”
(State v. Mobley, 240 N.C. 476, 83
S.E. 2d 100).
“One may come to the aid of
another being unlawfully arrested,
just as he may where one is being
assaulted, molested, raped or
kidnapped. Thus it is not an offense
to liberate one from the unlawful
custody of an officer, even though
he may have submitted to such
custody, without resistance.”
(Adams v. State, 121 Ga. 16, 48
S.E. 910).
“Story affirmed the right of selfdefense
by persons held illegally. In
his own writings, he had admitted
that ‘a situation could arise in
which the checks-and-balances
principle ceased to work and the
various branches of government
concurred in a gross usurpation.’
There would be no usual remedy by
changing the law or passing an
amendment to the Constitution,
should the oppressed party be a
minority. Story concluded, ‘If there
be any remedy at all ... it is a
remedy never provided for by
human institutions.’ That was the
‘ultimate right of all human
beings in extreme cases to resist
oppression, and to apply force
against ruinous injustice.’” (From
Mutiny on the Amistad by Howard
Jones, Oxford University Press, 1987;
an account of the reading of the
decision in the case by Justice Joseph
Story of the Supreme Court.)
Also, in King v. State [246 Miss.
86, 149 So.2d 482 (1963)] “The
right of personal liberty is one of
the fundamental rights guaranteed
to every citizen, and any unlawful
interference may be resisted. Every
person has a right to resist an
unlawful arrest; and, in preventing
such illegal restraint of his liberty,
he may use such force as may be
necessary.”
