NCJ Number
52410
Journal
Missouri Law Review Volume: 43 Issue: 4 Dated: (FALL 1978) Pages: 744-754
Date Published
1978
Length
11 pages
Annotation
THE DISTINCTION BETWEEN SELF-DEFENSE AND RESISTANCE TO ARREST IS CONSIDERED IN THIS ARTICLE ON A CONVICTION UPHELD BY THE MISSOURI COURT OF APPEALS THAT INVOLVED ASSAULT ON A POLICE OFFICER.
Abstract
THE COURT OF APPEALS AFFIRMED THE CONVICTION HANDED DOWN BY THE TRIAL COURT BECAUSE IT FOUND THAT THE DEFENDANT WAS NOT ENTITLED TO SELF-DEFENSE INSTRUCTION SINCE THERE WAS NO SUBSTANTIAL EVIDENCE THAT EXCESSIVE FORCE WAS EMPLOYED BY THE POLICE. THE COURT AGREED WITH THE DEFENDANT, HOWEVER, THAT THE TRIAL COURT HAD CONFOUNDED THE DISPARATE ISSUES OF SELF-DEFENSE AND RESISTANCE TO ARREST. SELF-DEFENSE PERMITS THE ARRESTEE REASONABLE RESISTANCE TO EXCESSIVE FORCE BY THE ARRESTING OFFICER IN ORDER TO PROTECT THE ARRESTEE'S LIFE AND LIMB. THE RIGHT TO RESIST AN UNLAWFUL ARREST PERMITS REASONABLE PHYSICAL RESISTANCE TO THE OFFICER MAKING AN UNLAWFUL ARREST IN ORDER TO PRESERVE THE ARRESTEE'S LIBERTY. RULES OF SELF-DEFENSE IN THE CONTEXT OF AN ARREST ARE SIMILAR TO RULES OF SELF-DEFENSE GENERALLY. MISSOURI COURTS HAVE RECOGNIZED THE RIGHT TO RESIST AN UNLAWFUL ARREST, BUT THE STATUS OF MISSOURI CASE LAW CONCERNING THIS ISSUE IS SURROUNDED BY CONTROVERSY. STATUTORY LAW ON THE MATTER IS CLEAR; A CRIMINAL CODE HAS BEEN ADOPTED THAT MAKES IT A CRIME TO RESIST OR INTERFERE WITH AN ARREST IF THE ARRESTEE KNOWS THAT A LAW ENFORCEMENT OFFICER IS MAKING THE ARREST. STATUTES ELIMINATING THE DEFENSE OF RESISTING AN UNLAWFUL ARREST, AS WELL AS CASE LAW TO THE SAME EFFECT, HOWEVER, HAVE IGNORED THE REASON FOR THE EXISTENCE OF THE DEFENSE--PROVOCATION. THE RULE ALLOWING REASONABLE PROVOCATION AS A DEFENSE BASES THE RIGHT TO RESIST UPON THE COMMON LAW JUSTIFICATION FOR RESISTING AN UNLAWFUL ARREST WHICH IS PROVOCATION. UNDER A PROVOCATION RULE, THE DIFFICULT DISTINCTION BETWEEN A PATENTLY UNLAWFUL ARREST AND ONE WITH FACE VALIDITY COULD BE ELIMINATED. CASE LAW IS CITED. (DEP)