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From: (J.D. Baldwin)
Subject: Re: CHP engages in felony theft
Date: Thu, 22 Jan 1998 16:18:50 GMT

In article <>, Patrick  <> wrote:
> > One doesn't *need* a specific "authorization" to do anything lawful,
> > including resisting an unlawful act.  If something is not forbidden by
> > the law, it is permitted.  I can't express just how disturbing it is
> > that a law enforcement officer seems not to have a grasp of this
> > fairly basic and important concept.
> JD what I don't understand is how you cannot grasp the concept that
> there is a rule of law in this country. All criminal codes, and I again
> implore you to find the one for your state, forbids resisting arrest,
> including unlawful arrest. The law specifically addresses this.

Someone posted the California statute, which makes resisting a
*lawful* arrest a crime.  If there's a separate statute that makes
resistance to an *unlawful* arrest a crime, please post it.  That's
just in California -- in the federal system, civilian and military,
in the U.S., your statement is just plain wrong.  It is only a crime
to resist or escape from *lawful* arrest.  Resisting or escaping
from an illegal arrest is not a crime.  Proving that an arrest was
unlawful is an absolute defense to the charge of "resisting arrest"
or of "escape."

> I think I see what the problem is here. What do you consider to be
> an unlawful arrest?

Arrests may be made when the arresting officer has "probable cause."
This is defined (in the federal system, at least) as facts that would
cause a "reasonable person" to conclude that a) a crime had been
committed, and b) that the person being arrested actually committed
the crime.  Arrests may also be made on warrants issued by a judge or
magistrate, but these warrants must be valid to be lawful.  An officer
who makes false sworn statements in court to obtain a warrant is not
then in posssession of a valid warrant and may lawfully be resisted.

Whether the suspect is later proven in court to have done the deed, or
not, is irrelevant.  Unlawful arrests may be made of suspects who are
guilty as sin, and perfectly lawful arrests may be made of suspects
who are later show to be clearly and obviously innocent of any
wrongdoing at all.  It's whether probable cause (or a valid warrant)
exists AT THE TIME OF THE ARREST that makes the difference.

> In California it is a separate charge for resisting arrest even if the
> original case is thrown out. I am also aware that this is the case in
> most of the other states, and according to the FBI this is also the
> case at the federal level so I am not sure how you have come to the
> conclusion you have. I will tell you that I have never heard of a
> prosecution on this law, but it does exist.

Yes, it is a separate charge.  Yes, it's completely independent of the
status of the original charge, unless the original charge was thrown
out because there was no justification whatsoever for the original
arrest.  That would provide an absolute defense to the "resisting"

> > Hey, I watch "Cops." [*] There *is* "fighting all the time!"  And I'm
> > sure all those guys who resist arrest and then claim "false arrest"
> > find out just how low the standard of proof for an arrest really is.
> > [...]
> OK, JD, you know better than that. "Cops" only shows the exciting stuff.
> It's like the fishing shows. They may film for two weeks to get 30
> minutes of non stop fishing action. In reality, there are exceptions
> depending on the locale, there is very little street fighting. Most
> people are pretty cooperative, although they are usually very mouthy.

You can't possibly have thought I was seriously using "Cops" as a
reference.  That was intended to be irony.  But the point is
unaffected:  most arrests are perfectly legit.  It's not like there's
so little actual crime in the world that cops have the time to waste
going around harassing obviously innocent citizens for no good reason
(the speeding/revenue laws aside, anyway, which are a special case).
I don't maintain that false arrest is common -- though the trend is
disturbing -- just that when it does happen, it is not a crime to
resist it.  Police have the authority to enforce the law, not to do
what they damn please.  If the law doesn't justify an arrest, then the
arrest falls into the "what they damn please" category and may
lawfully be resisted.

> >   Had Horiuchi been tried in the Idaho courts, who are truly
> > disinterested observers,
> Oh come on JD, you don't really believe that do you?!?!?!?

I believe it's a lot closer to reality than believing a *federal*
court will give him a fair and honest trial.  It was, after all,
the federal government who tried to bury this case from the start.

> Any first year law student could get a change of venue because of the
> bias in Idaho. I could see moving the trial to NY, or Florida, but not
> Idaho.

Interstate changes-of-venue are pretty incredibly rare, certainly far
beyond the powers of a "first year law student" no matter how
compelling the case.  Excluding jurors who share Mr. Weaver's, um,
"philosophy" should be a simple matter, and a change of venue to a
different part of Idaho is probably justified, but moving to federal
court just plain stinks of "show trial."

> I am aware of the report and I can only say that I do not see any
> defense for Ron, even in the Federal system. I really believe that his
> goose is cooked. Believe it or not, that's also the opinion of FBI
> agents that I know. According to ->->RUMOR<-<- within the FBI, Ron has
> become a real liability and the agency is distancing itself as far
> from him as possible. I wouldn't be surprised if he is deep fried in
> federal court and then the Justice Department will say, "see we cooked
> him, we are trustworthy." Aint politics fun.

Time will tell.  I think Horiuchi's "goose is cooked" if his case is
competently presented to a jury.  But federal court is a pretty
slippery thing -- prosecutors have much wider discretion there, and
rules bend more easily there than you may be accustomed to in state
court.  (This is the assessment of one DEA agent who has logged a few
thousand hours in California state courts, anyway.)  Also there is
->->RUMOR<-<- that the Justice Dep't. will ask for a dismissal.  The
same people who shredded records of official wrongdoing and refused to
bring charges (even though they concluded the actions were criminal)
get the case moved into their venue and then dismiss the charges?  I'd
say "Foul!" is too polite for such a situation.

> Listen JD. I have had a lot of fun and, even if you do not believe it,
> enjoyed the exchange, but this has grown so large that I don't have
> time enough to adequately answer all your questions or address all of
> your points. I will give you the last word if you desire to answer
> this post, but then I have to call it quits and move on. Good Luck and
> a good life to you.

I've trimmed it to 131 lines -- under two pages, including newlines
and quoted text.  You're not obligated to answer, but avoiding this
"no right to resist illegal arrest" issue might cause a "reasonable
person" to conclude that you are running away from an obvious
misstatement rather than just stepping up and admitting you were
wrong.  The rest are matters of opinion.
 From the catapult of J.D. Baldwin  |+| "If anyone disagrees with anything I
   _,_    Finger |+| say, I am quite prepared not only to
 _|70|___:::)=}-  for PGP public    |+| retract it, but also to deny under
 \      /         key information.  |+| oath that I ever said it." --T. Lehrer

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