Traffic Stop Is an Arrest

[weishaupt1776]

{*15} In several prisons there was no food allowance; in others it consisted of a meager bread ration. "Water soup" (bread boiled in water) was not uncommon fare. Prisoners who received bread allowances on alternate days were so hungry that they often ate the entire amount the first morning and then went hungry the rest of that day and the next. Persons who entered jail in the picture of health, emerged scarcely able to move from hunger, and incapable of any labor for weeks thereafter.
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No medical facilities were available in the prisons. The air was foul and noxious from the "effluvia" of the sick and the lack of sewage facilities. Prisoners were crowded together in close rooms and underground dungeons and chains were often required to prevent escape. Men were not separated from women, nor the sane from the insane. . . .
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In addition, every incident of prison life from admission to discharge was made the occasion for levying fees against the prisoners. There were charges for the arrest, for the privilege of detention in this or that part of the prison, for bed and bedding, for food and other "conveniences" of life, and for release. In Massachusetts at the end of the seventeenth century those who were unable to pay their fees "might be sold for life or a period of years into the service of anybody willing to pay their fees." Comment at 122 n.16 (citation omitted) (quoting Warner, Investigating the Law of Arrest, 26 A.B.A. J. 151, at 152). As one commentator put it, "Where imprisonment was often the equivalent of a death sentence, or at least, a living death, one can understand why men resisted unlawful arrest." Comment at 123. One can also understand why, as the Tooley court said, an unlawful arrest was a great provocation affecting "all people out of compassion." Tooley, 92 Eng. Rep. at 352. The common law rule set out in Tooley plainly resulted from conditions that no longer exist.
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3. Modern Arrest and Incarceration. In Washington today the law provides those arrested with numerous protections that did not exist when the common law rule arose. Reasonable bail is available. Wash. Const., art. I, {*16} sec. 20; Westerman v. Cary, 125 Wash. 2d 277, 291-92, 892 P.2d 1067 (1994). At any critical stage in a criminal prosecution a defendant has a right to appointed counsel under both the federal constitution’s Sixth Amendment and our state constitution‘s article I, section 22 (amend. X). Coleman v. Alabama, 399 U.S. 1, 7, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970); Heinemann v. Whitman County, 105 Wash. 2d 796, 799-800, 718 P.2d 789 (1986). Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), held the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest. None of these rights was available in 1709. "The right to resist developed when the procedural safeguards which exist today were unknown." State v. Hatton, 116 Ariz. 142, 568 P.2d 1040, 1045 (1977).
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Not only has criminal procedure advanced to protect the rights of the accused, jails themselves are no longer the pestilential death traps they were in eighteenth century England. Recent Eighth Amendment litigation of prisoners’ claims of cruel and unusual punishment has established certain constitutional standards for prisons. See, e.g., Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (prohibiting "deliberate indifference to serious medical needs"), reh‘g denied, 429 U.S. 1066, 50 L. Ed. 2d 785, 97 S. Ct. 798 (1977); Gregg v. Georgia, 428 U.S. 153, 173, 183, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (prohibiting the "unnecessary and wanton infliction of pain," which includes sanctions so lacking in penological justification that they constitute the "gratuitous infliction of suffering"), reh’g denied, 429 U.S. 875, 50 L. Ed. 2d 158, 97 S. Ct. 197, 97 S. Ct. 198 (1976). The United States Supreme Court "has determined that most of the constitutional rights contained in the Bill of Rights survive incarceration." Michael B. Mushlin, Rights of Prisoners 13 (2d ed. 1993).
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Thus, "in this era of constantly expanding legal protection of the rights of the accused in criminal proceedings, an arrestee may be reasonably required to submit to a {*17} possibly unlawful arrest and to take recourse in the legal processes available to restore his liberty." Commonwealth v. Moreira, 388 Mass. 596, 447 N.E.2d 1224, 1227 (1983). "The concept of self-help is in decline. It is antisocial in an urbanized society. It is potentially dangerous to all involved. It is no longer necessary because of the legal remedies available." State v. Koonce, 89 N.J. Super. 169, 214 A.2d 428, 436 (1965). We agree.
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4. The Trend Away From the Common Law Rule. In 1966, the right to resist an unlawful arrest was recognized in 45 out of 50 states. At that time the five states that had abrogated the right were Rhode Island, New Hampshire, Delaware, California, and New Jersey. Max Hochanadel & Harry W. Stege, Note, Criminal Law: The Right to Resist an Unlawful Arrest: An Out-Dated Concept?, 3 Tulsa L. J. 40, 46 (1966). By 1983, however, 25 of those 45 states had revoked the common law rule either by statute11 or decision,12 and today, only 20 states have it in place, while resisting even an unlawful arrest is prohibited by law in 30 states. "This common law principle has suffered a devastating deluge of criticism." State v. Thomas, 262 N.W.2d 607, 610 (Iowa 1978) (rule is "an anachronistic {*18} and dangerous concept"). Thus, the hold of the common law rule has weakened substantially in the last 30 years as jurisdiction after jurisdiction has modernized its jurisprudence to reflect the differences in criminal procedure in late twentieth century America as compared to early eighteenth century England. "The trend in this country has been away from the old rule and toward the resolution of disputes in court." Moreira, 447 N.E.2d at 1226.
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Courts addressing the question have set out many cogent and compelling reasons for consigning the common law rule to the dustbin of history. For example:
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While society has an interest in securing for its members the right to be free of unreasonable searches and seizures, society also has an interest in the orderly resolution of disputes between its citizens and the government. ( United States v. Ferrone (3d Cir. 1971) 438 F.2d 381, 390.) Given such competing interests, we opt for the orderly resolution through the courts over what is essentially "street justice."13 Evans v. City of Bakersfield, 22 Cal. App. 4th 321, 27 Cal. Rptr. 2d 406, 412 (1994).
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While defendant‘s rights are no doubt violated when he is arrested and detained a matter of days or hours without probable cause, we conclude the state in removing the right to resist does not contribute to or effectuate this deprivation of liberty. In a day when police are armed with lethal and chemical weapons, and possess scientific communication and detection devices readily available for use, it has become highly unlikely that a suspect, using reasonable force, can escape from or effectively deter an arrest, whether lawful or unlawful. His accomplishment is generally limited to {*19} temporary evasion, merely rendering the officer’s task more difficult or prolonged. Thus self-help as a practical remedy is anachronistic, whatever may have been its original justification or efficacy in an era when the common law doctrine permitting resistance evolved. . . . Indeed, self-help not infrequently causes far graver consequences for both the officer and the suspect than does the unlawful arrest itself.
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Accordingly, the state, in deleting the right to resist, has not actually altered or diminished the remedies available against the illegality of an arrest without probable cause; it has merely required a person to submit peacefully to the inevitable and to pursue his available remedies through the orderly judicial process. People v. Curtis, 70 Cal. 2d 347, 450 P.2d 33, 36-37, 74 Cal. Rptr. 713 (1969) (footnote and citation omitted).
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[weishaupt1776]

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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

[weishaupt1776]

“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.”

“An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. lf the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter.” Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.

“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).

“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 self-defense 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.

As for grounds for arrest: “The carrying of arms in a quiet, peaceable, and orderly manner, concealed on or about the person, is not a breach of the peace. Nor does such an act of itself, lead to a breach of the peace.” (Wharton’s Criminal and Civil Procedure, 12th Ed., Vol.2: Judy v. Lashley, 5 W. Va. 628, 41 S.E. 197)

Wow.

This is strong medicine.

I've had my share of strong medicine, but this is good...

Bob

I recently did the 3 questions on an alledged run of a stop sign.I asked am i under arrest? The laughing policeman said "no",I asked am i free to go? The cop stopped laughing and said "no" as if there was a catch to my question. I then said i cannot proceed without assistence of council.He said "What" I repeated. he then asked for Drivers license insurance.I gave him the docs and asked him if he remembered my answers to him he said yes and wnet to his car.Within one minute backup came,the officer snuk around the passingers side to see if i was up to something while officer one was giving me my ticket.Officer one gave me the ticket and said i would have plenty of time get a lawyer Both were standing together and i asked who their boss was officer 2 said he was boss of officer one,i wanted to know who the ultimate boss was,they said the chief officer 2 gave me his card with chiefs number, i asked officer one if he remembered the 3 questions i asked him he said yes and it was over. I called the chief the next day and told him my rights were violated,he said hes been chief 20 years and his boy did nothing wrong,i then called the prosecutor and got his help telling me they don't give legal advice, isaid i am not calling for that but to report a violation of legal rights,it was like an abbot and costello routine,different ways of explaing led to the same reply.QUESTION whats my next move,supposedely per chiefs boasting it is on audio tape.Do i supoena the tape.When supoenaing for info do i supoena it to the cop prosecutor city?

[weishaupt1776]

Ticketslayer.com comes highly recommended. Tell Greg the suijuris folks sent you.
You need to file an affidavit explaining what you just told us in a numbered, point by point format using only 1 subject & one verb.
Make sure you put a clause that if the cops do not rebut w/in 10 days, then the affidavit stands as truth and that they admit every affirmation.


On the certificate of service, lnclude 3 more adresses to where the affidavit
will be sent with the corresponding certified mail number referenced to each address.

Each cop lisrted separately by badge number & the P.A.
Get a copy of each w/file stamp - 1 for each cop & the prosecutor.
Also 1 for you.
Do the mailing with a 3d party mailer affidavit

Subpoena the stuff, definitely. Maybe attach to the affidavit, the subpoenas,
and ask the judge to subpoena the tape.

Mr. N, who's the plaintiff?

Weis about 15 minutes after i posted question i got a note in the mail requesting my appearence for a pretrail hearing on this case.The amazing thing is its the same date and close to the time as another case i have for speeding. I called the woman of the STOP SIGN court.She said that i could not get acontinuance except in case of medical emergency.I asked her how one can ask for a continuance,the answer was that my request would not be reviewed by the judge until the day of the hearing. I asked her if her court is under soviet jurisidiction.15 minutes later i called the speeding ticket court and they not only declined any hope of a continuance but said the woman called from the other court. I had to settle and take driver ed course. The plantiff is listed as the town.If i did prove that the speeding ticket court did not do the required survey can i do anything legally to the Dps or the county for having an illegal speed trap.

[weishaupt1776]

The whole survey/technicality thing is not the prevailing approach here, although it is not disdained.

Most of us try to use jurisdictional approaches in order to back them off.

Some use the UCC approach, but you better know what you're doing.

Here at sj, for traffic, we use the Ticketslayer.com, adventuresinlegalland.com, Law Research Group approaches, with a few other seasonings.

I was asking you who the plaintiff was because you should serve a subpoena on the municipality & request to cross-ex the municipality

The reason i was asking is because i want the right party to get the supoena.Are you familiar with the work of Ralph Winterood.He gave me his opinion on how i should approach it. From what i understand the he is suing the courts to face him on 80 some odd tickets.

Nuetron,here is some practical advice.

The ticket the COP gave it to you,is an invitation to contract with the
Corporate Mafia.

All you have to do now is to reject it.Write on it,with red pen,the time you received it,the time you rejected and let THEM know that any further
correspondence must be made under penalty of perjury and be signed.
The 72 hours rule applies here.

If you are not a corporation,an agent of one those rules do not apply to you.
You also can present THEM with an affidavit of corporate denial.
Find and use the RS(revised statute) for the STATE in case,witch exempts
the non-corporate members for compliance with the corporate rules.

Do not call the Court and ask silly questions.

Good luck!!!
Adrian

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Time is our best friend and our worst enemy!