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We are of the opinion that the common law rule is outmoded in our modern society. A citizen, today, can seek his remedy for a policeman‘s unwarranted and illegal intrusion into the citizen’s private affairs by bringing a civil action in the courts against the police officer and the governmental unit which the officer represents. The common law right of forceful resistance to an unlawful arrest tends to promote violence and increases the chances of someone getting injured or killed. Fields v. State, 178 Ind. App. 350, 382 N.E.2d 972, 975 (1978).
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More important [than the existence of civil remedies], however, are the unwarranted dangers to civil order caused by this lingering artifact. Peace officers are today lethally armed and usually well trained to efficiently effect arrests.
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Resultantly, the resister‘s chances of success are seriously diminished unless he counters with equal or greater levels of force. The inevitable escalation of violence has serious consequences for both participants and innocent bystanders.
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Briefly stated, a far more reasonable course is to resolve an often difficult arrest legality issue in the courts rather than on often hectic and emotion laden streets. Modern urbanized society has a strong interest in encouraging orderly dispute {*20} resolution. Confronting this is the outmoded common law rule which fosters unnecessary violence in the name of an obsolete self-help concept which should be promptly discarded. Thomas, 262 N.W.2d at 611. We agree with all of these sentiments. Finally, we also associate ourselves with Judge Learned Hand, who said, The idea that you may resist peaceful arrest -- and mind you, that is all it is -- because you are in debate about whether it is lawful or not, instead of going to the authorities which can determine, seems to me not a blow for liberty but, on the contrary, a blow for attempted anarchy. 35 A.L.I. Proc. 254 (1958).
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In the final analysis, the policy supporting abrogation of the common law rule is sound. That policy was well enunciated by Division Two of the Court of Appeals in State v. Westlund, 13 Wash. App. 460, 467, 536 P.2d 20, 77 A.L.R.3d 270, review denied, 85 Wash. 2d 1014 (1975), where the court said:
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The arrestee’s right to freedom from arrest without excessive force that falls short of causing serious injury or death can be protected and vindicated through legal processes, whereas loss of life or serious physical injury cannot be repaired in the courtroom. However, in the vast majority of cases, as illustrated by the one at bar, resistance and intervention make matters worse, not better. They create violence where none would have otherwise existed or encourage further violence, resulting in a situation of arrest by combat. Police today are sometimes required to use lethal weapons for self-protection. If there is resistance on behalf of the person lawfully arrested and others go to his aid, the situation can degenerate to the point that what should have been a simple lawful arrest leads to serious injury or death to the arrestee, the police or innocent bystanders. Orderly and safe law enforcement demands that an arrestee not resist a lawful arrest and a bystander not intervene on his behalf unless the arrestee is actually about to be seriously injured or killed. We found these policy reasons "convincing" and adopted {*21} the holding of Westlund in State v. Holeman, 103 Wash. 2d 426, 430, 693 P.2d 89 (1985). We affirm today our statements in Holeman.
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In sum, we hold that, although a person who is being unlawfully arrested has a right, as the trial court indicated in instruction 17, to use reasonable and proportional force to resist an attempt to inflict injury on him or her during the course of an arrest, that person may not use force against the arresting officers if he or she is faced only with a loss of freedom. We explicitly overrule Rousseau and other cases that are inconsistent with our holding in this case.
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Before leaving this issue, we take note of the dissent‘s assertion that the majority’s holding "makes the unlawful arrest of Valentine irrelevant." Dissenting op. at 48. Our first response is that we are unable to understand how the dissenter knows that Valentine was in fact unlawfully arrested. As we noted above, that issue was not presented to the trial judge or the jury. The jury did, however, determine, after listening to Valentine‘s testimony and the testimony of the police, that Valentine’s physical altercation with the police was not justifiable as self-defense. Unfortunately, the dissent has chosen to second-guess the jury‘s determination and substitute its own opinion of what occurred.
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More importantly, if the rule were, as the dissent suggests it should be, that a person being unlawfully arrested may always resist such an arrest with force, we would be inviting anarchy. While we do not, as the dissent appears to suggest, condone the unlawful use of state force, we can take note of the fact that in the often heated confrontation between a police officer and an arrestee, the lawfulness of the arrest may be debatable. To endorse resistance by persons who are being arrested by an officer of the law, based simply on the arrested person’s belief that the arrest is unlawful, is to encourage violence that could, and most likely would, result in harm to the arresting officer, the defendant, or both. In our opinion, the better place to {*22} address the question of the lawfulness of an arrest that does not pose harm to the arrested person is in court and not on the street.
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II
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Valentine‘s final contention is that this court should dismiss the charge against him on the grounds that the conduct of the arresting officer was so outrageous as to be violative of his right to due process as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. Significantly, this issue was not raised at the trial court or at the Court of Appeals by Valentine. It was first identified as an issue in Valentine’s petition for review, no doubt precipitated by the opinion of the dissenting judge at the Court of Appeals who wrote: "My review of the record leaves me with a deep and abiding certainty that the State violated constitutional principles of fundamental fairness by convicting Mr. Valentine for a crime which it provoked." State v. Valentine, 75 Wash. App. 611, 621, 879 P.2d 313 (1994) (Schultheis, J., dissenting).14 The United States Supreme Court has indicated that there may be situations where "the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." United States v. Russell, 411 U.S. 423, 431-32, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973). To be violative of due process, the officer‘s conduct must, however, shock the universal sense of fairness. Russell, 411 U.S. at 432.
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This court has also indicated that the state’s conduct might be so inappropriate as to be violative of due process, but we cautioned that it would have to rise to the level that it was "‘so shocking as to violate fundamental fairness.’" {*23} State v. Myers, 102 Wash. 2d 548, 551, 689 P.2d 38 (1984) (quoting State v. Smith, 93 Wash. 2d 329, 351, 610 P.2d 869, cert. denied, 449 U.S. 873 (1980)). Prior to our recent decision in State v. Lively, 130 Wash. 2d 1, 921 P.2d 1035 (1996), however, "no Washington decision had dismissed a prosecution for outrageous conduct by government agents." State v. Rundquist, 79 Wash. App. 786, 794, 905 P.2d 922 (1995), review denied, 129 Wash. 2d 1003, 913 P.2d 66 (1996). In Lively, we concluded that the conduct of the police was so "contrary to public policy and to basic principles of human decency" as to be violative of due process. Lively, 130 Wash. 2d at 27. Consequently, we reversed the defendant‘s (Lively’s) conviction
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