Is Plummer v State still valid under contemporary law?

Question

Apparently, in Plummer v State back in 1893, the court ruled an individual may act in self-defense against a police officer provided there is unlawful use of force. Note, this does not mean self-defense is acceptable against an unlawful arrest.

So, can this still be used as precedent today? Because what I learned from my Criminal Justice education was that a person can only act in self defense if they did not know the officer was an officer or if the officer turned out to be someone impersonating an officer. Unlawful arrest or even misuse of force can only be legally remedied by civil suits not self-defense.

Answer 1

It appears that Plummer v. State is still valid, but only in a very limited fact pattern. It is often quoted on the internet to justify the idea that a person may resist any unlawful arrest with force. That may have been true when Plummer was decided, and it was the clear holding of Bad Elk v. United States, 177 U.S. 529 (1900)

But Bad Elk is bad law today -- the wide adoption of the Model Penal Code starting in 1962 removed the right to resist a merely unlawful arrest. The right to use self-defense against excessive force by an officer remains, but is narrowly limited, and courts rarely find such resistance justified.

In State v. Mulvihill 57 N.J. 151 (1970) The Supreme Court of New Jersey held:

If, in effectuating the arrest or the temporary detention, the officer employs excessive and unnecessary force, the citizen may respond or counter with the use of reasonable force to protect himself, and if in so doing the officer is injured no criminal offense has been committed.

However, the Mulvihill court cautioned:

State v. Koonce, 89 N.J. Super. 169 (App. Div. 1965) held 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 engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances obtaining." (89 N.J. Super. at 184.) The opinion put to rest the notion that the common law rule existing in some jurisdictions, which permits a citizen to resist, even with reasonable force, an unlawful arrest by a police officer, was applicable in New Jersey. ... Accordingly, in our State when an officer makes an arrest, legal or illegal, it is the duty of the citizen to submit and, in the event the seizure is illegal, to seek recourse in the courts for the invasion of his right of freedom.

The Mulvihill court explained the difference in the two csase by saying:

Despite his duty to submit quietly without physical resistance to an arrest made by an officer acting in the course of his duty, even though the arrest is illegal, his right to freedom from unreasonable seizure and confinement can be protected, restored and vindicated through legal processes. However, the rule permitting reasonable resistance to excessive force of the officer, whether the arrest is lawful or unlawful, is designed to protect a person's bodily integrity and health and so permits resort to self-defense. Simply stated, the law recognizes that liberty can be restored through legal processes but life or limb cannot be repaired in a courtroom. And so it holds that the reason for outlawing resistance to an unlawful arrest and requiring disputes over its legality to be resolved in the courts has no controlling application on the right to resist an officer's excessive force. People v. Curtis, 70 Cal. 2d 347, 74 Cal. Rptr. at 719.

The Mulvihill court further warned that:

[A citizen] cannot use greater force in protecting himself against the officer's unlawful force than reasonably appears to be necessary. If he employs such greater force, then he becomes the aggressor and forfeits the right to claim self-defense ... Furthermore, if he knows that if he desists from his physically defensive measures and submits to arrest the officer's unlawfully excessive force would cease, the arrestee must desist or lose his privilege of self-defense.

The court said that the duty to desist and submit if that would stop the excessive force is analogous to the duty to retreat rather than use force in self defense when this is feasible.

The Nolo Press page "Resisting Arrest When Police Use Excessive Force" says:

It’s rare that someone being placed under arrest has the right to forcefully resist. But in most states, if the arresting officer uses excessive force that could cause “great bodily harm,” the arrestee has the right to defend him or herself. That’s because most states hold that an officer’s use of excessive force amounts to assault or battery, which a victim has a right to defend against.

...

An officer’s use of force is “excessive” if it is likely to result in unjustifiable great bodily harm (serious injury). Most states consider whether a “reasonable person” under the circumstances would have believed that the officer’s use of force was likely to cause great physical harm (including death). If the answer is “yes”—if a reasonable person would have felt it necessary to resist in self-defense, and if that person used a reasonable degree of force when resisting, then the resistance is typically justified. But this is a very high standard to meet, such that courts hardly ever find that an arrestee’s forceful resistance was defensible.

This article from policeone.com citing California law, says that forceful resistance to an arrest is almost never justified. It does agree that resistance to excessive force can be used;

Section 693 requires that even if the officer were committing a public offense (crime), only that "self-defense" force that is sufficient to prevent the offense may be used. In other words, the subject may only use force to simply stop the assault/battery under color of authority and never any more than that.

and says that:

It is a rare circumstance when this assault/battery under color of authority actually occurs and an officer is charged, not because of some great law enforcement driven conspiracy but because it rarely happens.

In short, Plummer is still valid, but limited to the fact pattern when the person being arrested is actually being subjected to excessive force likely to cause great bodily harm, or death, and only justifies sufficient force to prevent such harm. The lawfulness of the arrest does not matter, it the the danger caused by the excess force that justifies possible resistance. As a practical matter, if resistance is likely to escalate rather than prevent harm, it is highly unwise.

When Plummer is cited, often with Bad Elk, to justify resistance to an unlawful arrest because of its unlawfulness, that is no longer valid law and has not been for decades.

Note that is a person who is not a law enforcement officer (LEO) but who is pretending to be one, tries to make an "arrest" this would not be an arrest at all, but an assault or an attempted abduction, and the victim would be justified in using reasonable force in self-defense, although not excessive force. This is not the Plummer rule, but the normal law of self-defense. However any arrestee should be careful. Claiming that the arresters are impersonators when they are in fact plainclothes LEOs will not go well. If a reasonable person should have known that they were LEOs, there is no right to resist unless excessive force is used.

Note further that if non-LEOs attempt to make a "citizen's arrest", not impersonating officers, the right to self-defence only applies if excessive force is used, or there is a reasonable fear of excessive force likely to cause great bodily harm or death. Basically the Plummer rule still applies.

Also, all of this is a matter of state law, and while Plummer should be good law in most if not all states, the exact rule may vary by state. In 2012 a few US states retained the common-law rule that any unlawful arrest justified resistance, according to the Nolo page linked above. That may have changed, or may change when a case arises. The question does not specify a state, and a precise answer depends on the specific state.

Answer 2

Adding to all this is a recent case in Maryland where a homeowner shot two officers (both survived). The police served a warrant for a drug dealer to the wrong address and the home owner was not aware that the unlawful intruders were police officers until after he downed two of them. He immediately surrendered peacefully when he learned they were officers.

Because the warrant was served improperly, the cops did not charge him with a crime as he was obviously motivated by self defense and they were clearly in the wrong.

Answer 3

Adding to David Siegel's quality answer, the Indiana Courts have specifically ruled that Plummer is still good law at least as recently as Wilson v. State, 842 N.E.2d 443, 446-447 (Ind. App. 2006) which said:

Shane initially proposed “Defendant's Tendered Final Instruction 1,” which stated: The law does not allow a peace officer to use more force than necessary to effect an arrest, and if he does use such unnecessary force, he thereby becomes a trespasser, and an arrestee therefore may resist the arrester's use of excessive force by the use of reasonable force to protect himself against great bodily harm or death. If you find that Officer's (sic) Myer (sic) and Wilson used more force than necessary to effectuate the arrest, then Shane Wilson was permitted to resist the arrest to such an extent as necessary to protect himself from great bodily harm or death, and you must find him not guilty of resisting law enforcement. Plummer v. State, 135 Ind. 308, 34 N.E. 968 (1893); Casselman v. State, 472 N.E.2d 1310 (Ind.App.1985); Wise v. State, 401 N.E.2d 65 (Ind.App.1980); Heichelbech v. State, 258 Ind. 334, 281 N.E.2d 102 (1972); Birtsas v. State, 156 Ind.App. 587, 297 N.E.2d 864 (1973).

The initial statement of the law in the instruction is based upon our supreme court's holding in Plummer. The trial court refused to give the proposed instruction and also refused to allow trial counsel to edit the instruction to reflect the statement in Wise that when officers use excessive force in making an arrest an arrestee may resist the law enforcement to prevent great bodily harm or death. The trial court rejected the instruction on the basis that the right to resist an unlawful arrest, as that right is expressed in Plummer, “has all gone by the way side.” Transcript at 135. The trial court concluded that “[i]f you're going to be arrested, your complaint about an unlawful arrest is not to resist it. Your right [is] to bring an action later, but that doesn't give you the right to resist the arrest.” Transcript at 135–36. Shane's counsel responded to the court's reasoning by pointing out that a defendant who is killed by arresting officers' excessive force would be unable to pursue a civil court action. The trial court acknowledged defense counsel's statement but ultimately refused to give the instruction, both as initially proposed and also in its redacted or edited version.

In Plummer, the defendant became angry when the Kentland Town Board ordered him to trim shade trees on his property. The defendant then “left his house with his loaded revolver in his hand, and went onto the business streets of [the] town inquiring for the members of [the] town board, making threats that he was not to be fooled with, saying they had ordered his trees to be cut down, and that he would shoot them; and, while so talking in an excited manner he would frequently brandish his revolver around.” 34 N.E. at 969. After being told to go home, the defendant started walking back to his property. The town marshal then came upon the scene and ordered the defendant to “put up his gun.” When the defendant did not do so, the marshal approached the defendant from behind, struck the defendant with his billy club, and fired his gun at the defendant. The defendant, who had dropped his gun when he was struck by the billy club, retrieved his gun and returned fire. During an exchange of further gunfire, the marshal was killed.

After noting that the marshal was attempting to make an illegal arrest, our *447 supreme court further noted that a police officer may not “use more force than necessary to effect an arrest.” 34 N.E. at 968–69. The court held that if an officer is resisted before he has used “needless force and violence,” he may then “press forward and overcome such resistance, even to the taking of the life of the person arrested, if absolutely necessary.” Id. at 969. The court then noted that the marshal had not indicated to the defendant that he was under arrest and that there had been no necessity for the marshal to strike the defendant with his billy club. The court reasoned that the marshal therefore became a “trespasser” and that the marshal's assault with the billy club, coupled with the discharge of his weapon, “gave [the defendant] the clear right to defend himself.” Id. The court stated that “[w]hen a person, being without fault, is in a place where he has a right to be, and is violently assaulted, he may, without retreating, repel force by force, and if, in the reasonable exercise of his right of self-defense, his assailant is killed, he is justifiable.” Id. (citing Runyan v. State, 57 Ind. 80 (1877); Miller v. State, 74 Ind. 1 (1881)).

The trial court erroneously believed that the rule stated in Plummer has been set aside. The trial court's allusion to the right to challenge an improper arrest in a civil court shows that the court equated the rule stated in Plummer with the very different rule discussed in Fields v. State, 178 Ind.App. 350, 382 N.E.2d 972 (1978). In Fields, the issue before the court was whether any amount of force should be used by one unlawfully but peaceably arrested. Id. at 976. The court stated that the common law rule allowing a person to resist an unlawful but peaceful arrest is outmoded because it tends to escalate violence. Id. at 975. The court further stated that “[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 officers and the governmental unit which the officer represents.” Id. Therefore, the court held that “although [Field's] initial arrest was unlawful, he was not entitled to forcefully resist [the arresting officer's] attempt to apprehend him.” Id. at 975. The court specifically noted that “this appeal does not address issues that arise when an arrestee apprehends that the arresting officer is using excessive force and that unless the arrestee defends himself, he is likely to suffer great bodily harm or death.” Id.

In Wise v. State, 401 N.E.2d 65, 68 (Ind.Ct.App.1980), this court noted that Fields did not address the common law rule allowing a person to use force in resisting excessive force by an arresting officer. We further noted that other jurisdictions have recognized the general rule that an arrestee may use reasonable force “to defend himself against the use of greater force by the arrester than is required to effect the arrest.” Id. (citing Anno.: 44 A.L.R.3d 1078 (1972)). We discussed Heichelbech v. State, 258 Ind. 334, 281 N.E.2d 102 (1972) and Birtsas v. State, 156 Ind.App. 587, 297 N.E.2d 864 (1973), and concluded that “[w]hile neither Heichelbech nor Birtsas explicitly states so, they clearly imply that Indiana adheres to the general rule allowing an arrestee to resist the arrester's use of excessive force by the use of reasonable force to protect himself against great bodily harm or death.” Id.

In a subsequent case, this court noted that “the rule that a citizen may not resist a peaceful, though illegal, arrest was not ‘intended as a blanket prohibition so as to criminalize any conduct evincing resistance where the means used to effect an arrest is unlawful.’ ” Shoultz v. State, 735 N.E.2d 818, 823 (Ind.Ct.App.2000) (citing *448 Casselman v. State, 472 N.E.2d 1310, 1315 (Ind.Ct.App.1989)). We concluded that a citizen has the right to resist an officer that has used unconstitutionally excessive force in effecting an arrest, but the force used to resist the officer's excessive force may not be disproportionate to the situation.

The Wise and Shoultz cases were correct in their interpretation of the case law. There has been no abrogation of the common law rule allowing an arrestee to resist arrest to avoid personal injury or death when the arresting officers engage in excessive force. Furthermore, the rule should be interpreted to encompass a situation where an arrestee determines to retreat rather than escalate the violence. Accordingly, the trial court erred in determining that the proposed instruction was an incorrect statement of the law.

The trial court also rejected the proposed instruction on the basis that the evidence at trial did not support the giving of the instruction. The parties do not dispute that Officer Myers and Wilson fired multiple shots at Shane's truck while he was an occupant therein. As we noted in the statement of facts above, the State presented two versions of how and when the shooting began. According to Officer Myers and Wilson, the shooting occurred after Shane attempted to escape. However, Clinton County Deputy Sheriff Jared Blacker testified that he observed the truck begin to accelerate after the shooting started. It is undisputed that once the shooting began, a bullet passed through the cab window and Shane sustained a head injury. Under Deputy Sheriff Blacker's version of the facts, Shane had little chance of protecting himself from serious bodily injury or death. He would have been warranted in protecting his life by fleeing the hail of bullets directed at his truck. Accordingly, there was evidence that supported the giving of an instruction addressing Shane's right to resist the arrest. The trial court erred in determining that the evidence did not warrant the giving of the proposed instruction.

The proposed instruction is a correct statement of the law that is not covered by any other instruction, and the evidence supports the giving of the instruction. Accordingly, the trial court erred in not giving the instruction. The court's error, however, is subject to harmless error analysis. See Seeley v. State, 678 N.E.2d 1137, 1139 (Ind.Ct.App.1997), trans. denied.

In his closing argument, the deputy prosecutor reminded the jury members that they had “taken an oath to follow the instructions by the judge” and that they should notice that the instructions given to them did not state “that if the officer is shooting your tire, that gives you the license to take off. There is not going to be anything that even resembles that in the instructions.” Transcript at 161. This argument emphasized the trial court's erroneous decision to not give the proposed instruction. Had the instruction been given, the jury would have been properly informed of a defendant's right to protect himself against great bodily harm or death and could have made a well-informed decision as to whether the right was available to Shane. The trial court's failure to give the instruction was not harmless error.