Resisting Unlawful Arrest: A Due Process Perspective

To resist arrest is a crime. But is it a crime if the arrest resisted is unlawful? More particularly, is a lawful arrest an issue in a trial for resisting arrest? This inquiry invokes the constitutional due process problem of proof illustrated in Hoover v. Garfield Heights Municipal Court, decided in September 1986 by the United States Court of Appeals for the Sixth Circuit.

Section II discusses the Hoover case, and then Section III delves into the issue of a right to resist an unlawful arrest. Section IV explains that an unlawful arrest is authorized when there is a legislative abrogation of the resistance right in some jurisdictions, and Section V looks at jurisdictions where a lawful arrest is essential to convict even without a resistance right. Section VI turns to a third potential application, where resistance becomes an assault or battery when there is no resistance right. Section VII proposes a solution through better application of due process.