Georgia courts: It’s lawful to use force to resist an unlawful arrest

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The Nathan Deal Judicial Center, which houses the Georgia Supreme Court. (Bob Andres / bandres@ajc.com)

But it’s tricky. ‘Proportionate’ amount of force is the key

Christopher Glenn insisted he was doing nothing wrong. So when Athens-Clarke County police officers handcuffed him and took him to a patrol car, he was having none of it.

Kicking and flailing, he strongly resisted arrest. At one point, Glenn lunged forward, smacking a sergeant’s face with his forehead. Soon after that, he was lying atop another officer on the pavement. When officers finally got Glenn into the cruiser, he kicked at the door so violently he damaged its hinges.

As it turned out, the officers had no probable cause to arrest Glenn for loitering and prowling outside Oglethorpe Elementary School in Athens. And Glenn’s appeal of the incident led to a landmark Georgia Supreme Court ruling that relied on centuries-old cases from England to find that not only was Glenn within his rights to use force to resist the unlawful arrest, he could also damage government property while doing so.

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On April 29, following instructions from the Supreme Court, the state Court of Appeals sent Glenn’s case back to a trial judge to determine whether Glenn used a permissible — or “proportionate” — amount of force when resisting his unlawful arrest.

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“The opinion breathed new and strong life into what has been on the books for ages,” said Gerry Weber, a lawyer with the Southern Center for Human Rights. “But someone shouldn’t read these opinions and think it’s safe to run away from police every time you think the officer is acting outside the law. You could put your life on the line.”

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Those who believe they are being unlawfully arrested and push an officer away or try to flee can quickly find themselves on the receiving end of an officer’s use of force — as well as facing new charges such as obstruction, Weber said.

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Atlanta lawyer Gerry Weber. (Southern Center for Human Rights)

“The right to resist an unlawful arrest is easy to understand in an academic sense,” Weber said. “But in the moment of the interaction with the police officer, it’s a very precarious situation for citizens who exercise their constitutional right.”

GBI Director Vic Reynolds agreed. He also said the ruling, while well-reasoned, raises concerns from a practical point of view.

“A lot of people, even during the course of a lawful arrest, will resist because they don’t believe it’s lawful,” said Reynolds, a former police officer and criminal defense lawyer. “That can turn into a bad situation.”

Reynolds said it’s incumbent upon the GBI and other law enforcement agencies to train officers to make sure that when they are laying hands on a suspect they are extremely confident they are making an appropriate arrest.

“I’m also a firm believer that the time not to argue with an officer is at 2 a.m. on the side of the road,” Reynolds said. “It’s best to cooperate and then, if warranted, file a complaint with internal affairs. To me, that’s the safest way to get that handled.”

Initial appeal rejected

Glenn’s problems began May 18, 2018, at about 2:30 p.m. when students were getting on school buses. He was walking inside a line of trees and shrubbery behind Oglethorpe Elementary, and someone inside had called 911 to report a suspicious person.

Officer Lee Morgan, who responded to the scene, saw Glenn and called out, “Let me talk to you real quick,” according to a transcription from the officer’s body camera video. When Glenn asked if he was being detained, Morgan said he was.

Glenn asked why and said, “I’ll tell you my name. It’s Christopher Glenn. I’m walking home.”

Soon after Glenn was handcuffed, the melee ensued. Glenn was finally subdued after an officer threatened to deploy his Taser, and other officers bound Glenn’s legs. He was charged with loitering and prowling, as well as interference with government property for damaging the squad car.

Glenn’s lawyer, public defender Ben Pearlman, declined to comment for this story. But at a court hearing after Glenn was taken into custody, Pearlman said his client was allowed to resist an unlawful arrest with a reasonable amount of force.

“We would expect if someone was being kidnapped or falsely imprisoned, I don’t think that that person is going to be charged with a crime for kicking down a door or kicking a car door to try to get away from that situation,” Pearlman said.

Superior Court Judge Eric Norris agreed there was no probable cause behind the loitering and prowling charge. But when Glenn was handcuffed and inside the patrol car, the judge said, “It doesn’t usually get better at that point in time to start kicking or to start ripping stuff apart or to start damaging things. That kind of goes outside the bounds.”

Glenn’s initial appeal was rejected by the state Court of Appeals, but the Supreme Court of Georgia then decided to hear the case.

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The Georgia Supreme Court hears arguments via Zoom in the case of Glenn v. The State. Top row (from left): Chief Justice Harold Melton, Justice David Nahmias and former Justice Keith Blackwell. Middle row (from left): Justices Michael Boggs, Nels Peterson, Sarah Warren and Charles Bethel. Bottom row (from left): Justices John Ellington and Carla McMillian; public defender Ben Pearlman and then-acting District Attorney Brian Patterson. (Pete Corson/AJC)

The state high court’s ruling, in Glenn’s favor, noted that Georgia adopted the common law of England in 1776. Embedded in that common law was the right to physically resist an unlawful arrest or escape from an unlawful detention, Justice John Ellington wrote for the unanimous court.

Ellington cited The Queen v. Tooley, a seminal ruling on the right to resist an unlawful arrest that was issued in 1710. In Tooley, constable Samuel Bray had arrested Anne Dekins in Westminster on the charge she was disorderly.

When three men armed with swords intervened and tried to liberate Dekins, one of the men killed a man who was helping Bray keep Dekins in custody. Because a jury later found that Bray had no right to arrest the woman in the first place, the court found the constable was acting as “a common oppressor.”

For this reason, the false imprisonment of Dekins was “a sufficient provocation to all people out of compassion” to use force to rescue someone “unlawfully restrained of her liberty,” the court said. It also reduced the charge of murder to manslaughter.

‘It’s hard to disagree’

The U.S. Supreme Court visited the issue in 1900 in the case of John Bad Elk, a Native American tribal police officer in South Dakota. When three policemen came to arrest him without a warrant, Bad Elk fired shots at them, killing one. Bad Elk said he had seen them reaching for their weapons.

In its decision, the high court reversed Bad Elk’s murder conviction and granted him a new trial.

“If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest,” the ruling said.

In the Georgia high court’s ruling on Glenn’s appeal, Ellington noted that at least eight states have laws on their books that say even if someone has sufficient grounds to believe he or she is being unlawfully arrested, it is that person’s duty to refrain from using force or any weapon to resist it. Because Georgia has no such prohibition, the common law right to resist an unlawful arrest remains in effect here, Ellington said.

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Georgia Supreme Court Justice John Ellington. (AJC file photo)

And when being unlawfully arrested, the ruling said, a person must only “use the proportionate force necessary to resist” — meaning a suspect cannot use lethal force to escape if the officer is using non-deadly force to detain.

“It’s hard to disagree with the opinion,” said Richard Hyde, a member of the state Board of Public Safety who served as an Atlanta police officer from 1979 to 1989.

“They taught us about that the first week of the police academy,” he said. “If you make an arrest that is unreasonable and illegal, you are subject to have that person use force to resist it.”