Robert Tolan shooting (Bellaire, TX) and the right to resist false arrest.

[rantingredneck]

I've heard/read many times over the years that it is a citizen's right to resist false/illegal arrest by law enforcement. With that in mind, consider the case of Robert Tolan:

Excerpted from http://blogs.houstonpress.com/hairballs/2009/02/baseball_player_shot_by_police.php# :

Robert Tolan, the minor league baseball player shot by Bellaire cops in his parents' driveway on December 31, called for Bellaire Mayor Cindy Siegel's resignation at a press conference today.

"I would hope that Bellaire's residents are appalled and outraged," Tolan told a crowd of about 100 people who gathered in a Meyerland ballroom. "I would indeed like to see her resignation."

Tolan and his brother were returning to their parents' home when two officers pulled them over, for what Bellaire Assistant Police Chief Byron Holloway said was the mistaken belief that Tolan was driving a stolen SUV.

"Their excuse was they typed the number in wrong," Tolan said today. He also said that, given Bellaire's small size, the police "know who their residents are. We're not visitors...We've lived there for 15 years. They know who I am...they know my car."

Tolan has claimed that at least one officer assaulted his mother that night, when she came out to see exactly why police officers had their guns drawn and had her son laying on the ground. Responding to a question about how he thought the incident would have turned out if he had not ignored the cops' orders to stay on the ground, Tolan said, "With all due respect, let's see your mom slammed up against a garage door....I mean no disrespect, [but] I would think and I would hope that that would enrage a lot of you. So right or wrong, I was acting on instinct."

Mr. Tolan was shot after the arresting officer reportedly slammed his mother against the garage door outside the family home. He rose from the ground and (according to his HBO Real Sports interview) said something along the lines of "Get your (expletive) hands off my mother".

Assuming the facts are as they have been reported how does the right to resist false arrest play into this particular case? Are the officers involved toast? Is the city looking at mega $ payout here?

I believe so, but I'd like the opinions of our resident legal eagles. Others as well, but as the rules of this subforum and the site as a whole go, no LEO bashing......

Play nice fellas......


Edit: I think there's one minor error in this article. Per the HBO Real Sports interview Mr. Tolan was with his cousin, not his brother. In doing the background for the story they made a big deal out of him being an only child and following in his father's footsteps (Father was a MLB player.)

 

[Glenn E. Meyer]

There is TX law on such issues but I'm out the door. Maybe some night owl can look at the TX DPS site to find it.

 

[Wildalaska]

I've heard/read many times over the years that it is a citizen's right to resist false/illegal arrest by law enforcement.

My understanding is that no person has any right to resist any arrest from Law Enforcement, and that in most jurisdictions, the fact that an arrest was unlawful is not a defense or affirmative offense to a charge of resisting arrest.

WildotherwiseanarchyresultsAlaska TM

 

[rantingredneck]

I was on my way out the door to the gym this morning and got caught up in his interview with Bryant Gumbel on Real Sports. (What started me thinking about this aspect of his case).

The interview with the mayor of Bellaire did not make her look very good. She stammered quite a bit through her rationalizations for the officers actions. Unconvincing to say the least.

As further background both officers had multiple letters of reprimand in their files, though none were reported to be for excessive force issues. One had 6 and the other 3. Both had letters for misleading investigators (regarding an automobile accident if I recall correctly). When questioned about this and why they were still on the force the mayor stammered out something along the lines of "they don't report to me". Guess she never heard of "the buck stops here...?"

 

[Wagonman]

In Illinois you are not allowed to defeat any legal arrest by a LEO. The last thing you want to do is resist arrest. Save you umbrage for judicial process. I understand the civil rights issue but there aren't any judges at the scene of the crime.

Let the Police do their job and have your defense attorney do his job.

 

[Wildalaska]

Here is the Texas statute:

Sec. 38.03. Resisting Arrest, Search, or Transportation.
(a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.
(b) It is no defense to prosecution under this section that the arrest or search was unlawful.
(c) Except as provided in Subsection (d), an offense under this section is a Class A misdemeanor.
(d) An offense under this section is a felony of the third degree if the actor uses a deadly weapon to resist the arrest or search.

WildharkihearthecallofcthuluAlaska TM

 

[rantingredneck]

OK, so he had no right to resist false arrest per TX law.

Given the facts as reported (which can differ from facts as established at trial) do you think the officers and/or city are still toast?

 

[rantingredneck]

Some googling turned up this article:

http://www.time.com/time/printout/0,8816,834572,00.html

What should a man do when he thinks the police are arresting him without cause? To Newark Bartender Kurt Koonce the answer was obvious: Resist. After all, the cops were claiming that he had sold liquor to a minor—and they had not seen the alleged sale. How could they make the rap stick?

After he lost the first round in his barroom and wound up in court, Koonce learned that he had been both right and wrong. The charge of selling liquor to a minor was dismissed, but he drew a 90-day sentence for assaulting the police. His mother was fined $25 for having come to his aid.

Mother and son appealed on the grounds that every citizen has a common-law right to resist false arrest. A policeman, they argued, may make an arrest for a misdemeanor only if he has a warrant or if the offense is committed in his presence. In this case, the cops had neither excuse. And New Jersey's second highest court has just reversed the Koonces' convictions. In so doing, though, it barred all further resistance to false arrest in New Jersey. Historically, the court noted, the right arose in a day when arrest was well worth fighting. As late as the 18th century, an Englishman could expect months or years in jail without bail, plus torture, disease and often death before trial. Moreover, it was then easy to resist arrest; citizens and constables were equally armed with staves or swords.

As the court pointed out, the situation is now reversed. While jail is far less harrowing, every U.S. policeman packs a gun and is duty-bound not to be cowed by a suspect's resistance. "Self-help," said the court, "is antisocial in an urbanized society." It just about guarantees "escalation into bloodshed" —and is unnecessary at a time when the rights of the accused are being constantly expanded. As a result: "We declare it to be the law of this state that a private citizen may not use force to resist arrest by one he knows or has good reason to believe is an authorized police officer, whether or not the arrest is illegal."

What the judges made law in New Jersey is already in statutes in California, Delaware, New Hampshire and Rhode Island. In those states, the falsely arrested citizen has no choice but to go along peacefully and hope to even the score later with a suit for damages. Latest average award in false-arrest actions against policemen: $7,790.

Bolding is mine.

While I tend to disagree in principle with courts creating law, I can't fault their reasoning in this situation. Seems as if resistance will likely lead to very bad things as in the Tolan case.

 

[vranasaurus]

Citizens should not be encouraged to resist arrest. If laws allowed the resisiting of an illegal arrest you would have a situation where people would feel empowered to resist the law enforcement based upon their own beliefs.

You also don't want a situation where law enforcement violates rights and acts with impunity. $7800 to the victim and a slap on the wrist for an officer doesn't seem to me to create a system that discourages officers from these things.

We have a judicial system and it should be allowed to do it's job. The city in this case should conduct an inquiry into the officers actions. If they were trying to affect an unlawful arrest there should be some serious sanctions. Just because a person resists doesn't make the initial arrest or the behavior of the officers any more lawful.

 

[rwilson452]

In PA, it's the law you can't resist.

 

[Wagonman]

I don't see a rash of legit false arrests.

If anything, there is a lot of de-policing especially in your big cities. It is not worth my job, house, or freedom to be proactive. I make better money now than I did when I was runnin' and gunnin'-----less uniform damage also.

 

[jughead2]

arrest

at one time this old man thinks he remembers reading tn law that one could resist an illegal arrest. it has been too long dont know where to look but dont think i would want to try it. methinks it would be suicide.

 

[FALPhil]

This is probably one of those things that needs to work its way through the court system to get a definitive answer. After all, one of the often overlooked parts of the Marbury vs Madison case is that SCOTUS decided that there was no duty to obey unconstitutional laws.

 

[Double Naught Spy]

Assuming the facts are as they have been reported how does the right to resist false arrest play into this particular case?

It does not. Tolan was not resisting false arrest. Tolan was attempting to interfere with an officer in the execution of his duties and did so in an inappropriate manner. As a result, he got shot. The actions resulting in him getting shot did not pertain to his own possible arrest.

Tolan's mother attempted to interfere with the officer's duties who had detained two possible car thieves (one of whom was Tolan, of course). Tolan's mother was ordered back and refused, then was physically detained. So far, no harm has been done.

Then Tolan acted in a verbally and reportedly physically aggressive manner at which time the officer feared for his life and shot Tolan. Tolan was not attempting to resist false arrest. Tolan was attempting to interfere physically with the detainment of his mother.

Tolan's mother had no right to interfere with the officer's duties when they detained Tolan and Tolan had no right to do so when they detained his mother.

Are the officers involved toast? Is the city looking at mega $ payout here?

Only if the use of lethal force was not actually justified.

 

[Bartholomew Roberts]

Actually under Texas law, it is a defense to prosecution that you used force to resist an unlawful arrest if the peace officer or a person acting within the presence of the peace officer "was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;"
(See Section 9.31 of the Texas Penal Code for further elaboration of self-defense).

So you can use force, including lethal force, in some very limited, narrow circumstances; but I would expect to spend a lot of money on lawyers afterwards, even if you have compelling evidence concerning your innocence.

In this case, I don't see anything in the officers actions that rises to the level outlined in 9.31 (at least Tolan hasn't claimed that in press interviews so far and with all his chattiness, he sure will look suspicious if he starts claiming it now).

On the practical side, yes, those officers probably are toast and the city probably will pay out a lot of money. While the city might be able to win the argument in court, chances are real high a jury will bury them, so the city will settle long before then. Part of that settlement will almost certainly include these two officers getting their walking papers in addition to a decent chunk of change.

 

[rantingredneck]

Don't get me wrong, I am in no way advocating resisting arrest false or otherwise. Just a thought I had after watching Mr. Tolan's (and others) interview yesterday.

I'm personally with the "cooperate and call a lawyer" crowd. I also agree that Mr. Tolan wasn't necessarily resisting arrest when he was shot. While it was ill-advised for Mr. Tolan to get off the ground when his mother was slammed against the wall by the officer I can understand the reaction.

 

[Wildalaska]

This is probably one of those things that needs to work its way through the court system to get a definitive answer.

The generally statutory prohibition against resisting arrest and the nullification the defense of unlawful arrest as a defense raises no constitutional issues.

Even where the statute is silent, abrogation of the common law defense raises no constitutional issue.

Please read Marbury again by the way

WildlettheposturingcontinueAlaska TM

 

[MedicineBow]

There was no "unlawful" or "false" arrest here.

If the authorities have a reasonable basis for the arrest, even if they turn out to be mistaken (I'm innocent!), you will still be guilty of a separate crime if you resist.

 

[vranasaurus]

If the authorities have a reasonable basis for the arrest

What was the reasonable basis for the arrest?

According to the article the police "typed in the numbers wrong" leading them to believe that the SUV was stolen. If that is the case the police should have known that the SUV in question was not stolen and there was no basis for arrest.

 

[MedicineBow]

What was the reasonable basis for the arrest?

I should have said "lawful" basis....but, anyway, their basis was honest, though mistaken.

Such is life. Innocent people get arrested all the time. If they choose to resist, then they've just done their first crime.