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Criminal Nuggets

Mar 23, 2015

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An unlawful arrest by police cannot legally be resisted by a citizen. That is just the law. Podcast Episode 063 takes a look at the complicated dynamics in one recent unlawful arrest.

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See People v. Jones, 2015 IL App (2d) 130387 (03/17/2015).

unlawful arrest by police

The Unlawful Arrest by Police

Neighbor calls police because stuff is breaking in an argument between Defendant and his girlfriend.

When the officer arrives Defendant tells him there is no problem and that he needs to get off his property. The officer notices that Defendant is intoxicated.

The officer, at this point, -

  • Cannot see anyone else in the house
  • Cannot assess whether anyone needs help
  • Cannot confirm anyones safety

Defendant was openly hostile towards the officer. After cursing at the cop and telling him to go away Defendant began to walk away.

This is when the officer decides to arrest the defendant.

“Defendant started pushing and pulling away, so [the officer] took him to the ground. Defendant began to kick the officer repeatedly.”  ¶  7.

This is finally when the girlfriend comes out to yell at and push the cop.

The struggle then moved to the front yard. The officer was attempting to put Defendant into handcuffs while Defendant attempted to get the officer into a headlock.

At one point, the officer draws his weapon but he holstered the gun when the Defendant walked away. Finally, when additional officers arrive Defendant gets tased twice and finally arrested.

Defendant was convicted of aggravated battery to a peace officer (720 ILCS 5/12-4(b)(18) and obstructing a peace officer (720 ILCS 5/31-1(a)).

A Lot Going On Here

The rule of law in this case is quite simple. Nothing complicated going on here.

Yet, the case is significant because it highlights the difficult choices the police officer had to make.

I do think it is important to look at things from the perspective of law enforcement. The headline could very easily be that a false arrest leads to a five year prison sentence and the police just abused their police power.

But there is more going on.

The cop was responding to a domestic. When a man kills a woman it is often in a domestic-type situations. Everybody knows this.

Under the law what should the officer have done differently?


So what is the rule here?

The Illinois Criminal Code explains about a “Private person’s use of force in resisting arrest.” It says:

A person is not authorized to use force to resist an arrest which he knows is being made either by a peace officer or by a private person summoned and directed by a peace officer to make the arrest, even if he believes that the arrest is unlawful and the arrest in fact is unlawful.

720 ILCS 5/7-7.

There are two very important points to make.

First, this section only covers the arrest however. Anything that happens before the officer is attempting to formally cuff and arrest the defendant is not covered by this section.

Second, because of this section a person is generally not allowed to claim self defense against an unlawful arrest committed by the police.

The Appellate Court’s Ruling

The officer’s entry into the defendant’s home in this case was a violation of the fourth amendment and was not an “authorized act” for purposes of the obstruction charge under section 720 ILCS 5/31-1.

The home has a special protection status under the law.

“The fourth amendment generally prohibits the police from entering a private residence without a warrant. People v. Foskey, 136 Ill. 2d 66, 74 (1990). Indeed, the fourth amendment “has drawn a firm line at the entrance to the house.” Payton v. New York, 445 U.S. 573, 590 (1980). Accordingly, absent exigent circumstances, the police may not enter a private residence to make a warrantless search or arrest. Id.; People v. Davis, 398 Ill. App. 3d 940, 948 (2010).” ¶  13.

Thus, the reviewing court concluded that when the officer was assured that there was no problem and he saw that the girlfriend was not beat-up he needed to leave the home. Thus, the court reversed Defendant's conviction for obstructing a peace officer.

What About the Aggravated Battery to a Police Officer?

The aggravated battery to an officer, however, is a different story.

Even though the arrest itself was unlawful, the facts still demonstrated that defendant was belligerent and combative from the beginning with the officer. When it was clear that defendant would not cooperate, the officer merely grabbed his arm and tackled him, which was the only way to complete the arrest.

The act of attempting to arrest defendant was unlawful but it was “excessive.” This distinction is important.

Citizens may tend to think that any unlawful arrest is “excessive”. But the law sees a difference.

Had the officer acted with undue excessive force then Defendant would have been allowed to legally defend himself with force. That would have erased the rule under 5/7-7 described above.

A jury can be, and only be instructed on a self-defense claim against police action when there is evidence of excessive force. To allow the instruction more liberally would eviscerate the rule that a person cannot resist an unlawful arrest.

Defendant took the position that because the officer unlawfully remained at his home, all his subsequent acts were tainted, entitling defendant to resist them by any force necessary. But This is not the law.


Defendant’s five year prison sentence for aggravated battery to a peace officer was upheld.

But Wait ...

We are still left with a situation where a man is doing five years for aggravated battery to a cop who was committing an unlawful arrest.

A fight between a citizen and an officer took place. Gun was drawn. Citizen was tased. Everyone was put at risk.

That is a problem.

Yet, there is still a very complicated dynamic going on here.

The officers perspective is important.

I am not saying this unlawful arrest was justified. I am just saying that the officer’s perspective has to be understood. I don’t read this case as one involving a cowboy cop. This was one of those difficult situations that highlights the difficulties of officers dealing with the public.

The outcome does and should be avoided. But how do we get there?

Law Enforcement Perspective

The simple notion that this is all avoided if Defendant just doesn’t fight is not sufficient. The idea that the arrest would have been thrown out in court and he wouldn’t be doing five years right now gets us nowhere.

That ignores the valid mistrust of law enforcement in some communities.

It is just not helpful.

Non-Law Enforcement Perspective

It is no more helpful than me saying that the police are all corrupt and all they do is create the problems they are supposedly trying to solve. Ignoring or glossing over the real concerns the officer had in this case is equally unhelpful.

So What should have happened?

The reviewing court seemed to think that the officer was justified until he saw that the girlfriend was uninjured.

So it appears the law recognizes that the officer had a special duty to assure the safety of the girlfriend.

Instead of arresting Defendant, when he did not know her condition, the officer could have explained that he would right after he could see that she was alright.

It may have ended the same way, we don’t know. But I think there is great value in knowing what the “correct” pathway looks like.