CASE NOTES - THE RIGHT TO RESIST UNLAWFUL ARREST - CITY OF NEW ORLEANS V LYONS-342 SO 2D 196 (1977) - WHITE V MORRIS - 345 SO 2D 461 (1977)

• NCJ Number: 55076
• Journal: Louisiana Law Review Volume: 38 Issue: 3 Dated: (SPRING 1978) Pages: 840-849
• Author(s): J D HUGHES
• Date Published: 1978
• Length: 10 pages
• Corporate Author: Louisiana State University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

TWO RECENT LOUISIANA SUPREME COURT CASES INVOLVING THE RIGHT TO RESIST AN UNLAWFUL ARREST ARE DISCUSSED AND PLACED IN HISTORICAL PERSPECTIVE.

Abstract

IN CITY OF NEW ORLEANS V. LYONS (1977), THE LOUISIANA SUPREME COURT IN A PLURALITY OPINION UPHELD A BATTERY CONVICTION STEMMING FROM RESISTANCE TO AN ARREST EVEN THOUGH IT DECLARED UNCONSTITUTIONAL THE ORDINANCE UPON WHICH THE ARREST WAS BASED. SHORTLY THEREAFTER, IN WHITE V. MORRIS (1977), THE COURT WENT FAR BEYOND ITS NECESSARY HOLDING AND STRONGLY AFFIRMED THE RIGHT TO RESIST AN UNLAWFUL ARREST. THE RIGHT TO RESIST AN UNLAWFUL ARREST HAS BEEN PART OF ANGLO-AMERICAN LEGAL TRADITION SINCE THE SIGNING OF THE MAGNA CARTA IN 1215. IN ENGLISH LAW, THE RIGHT TO RESIST AN UNLAWFUL ARREST WAS ESTABLISHED FIRMLY BY THE CASE OF QUEEN V. TOOLEY IN 1710. LATER ENGLISH CASES TEMPERED THE RIGHT TO RESIST, FINDING THAT NOT EVERY ILLEGAL ARREST WAS A PROVOCATION AS A MATTER OF LAW. EARLY AMERICAN JURISPRUDENCE GENERALLY FOLLOWED THAT OF ENGLAND ON THIS ISSUE. IN THE UNITED STATES V. DI RE (1948), THE UNITED STATES SUPREME COURT RULED THAT ONE HAS AN UNDOUBTED RIGHT TO RESIST AN UNLAWFUL ARREST AND COURTS WILL UPHOLD THE RIGHT OF RESISTANCE IN PROPER CASES. STILL, THE SUPREME COURT HAS NEVER ADDRESSED THE CONSTITUTIONALITY OF THE RIGHT TO RESIST DIRECTLY AND HAS APPARENTLY AVOIDED THE OPPORTUNITY TO DO SO. THE LOUISIANA SUPREME COURT, ON THE OTHER HAND, HAS IN SOME OF ITS CASES (CITY OF MONROE V. DUCAS (1943) AND STATE V. LOPEZ (1970), TAKEN FOR GRANTED THE EXISTANCE OF SUCH A CONSTITUTIONAL RIGHT. IN THE CITY OF NEW ORLEANS V. LYONS, THE COURT'S DECISION TO GO BEYOND ITS NARROW HOLDING TO DISCUSS THE ISSUES RAISED BY THE RIGHT TO RESIST IS SIGNIFICANT BECAUSE THE DECISION IS A STRONG REAFFIRMATION OF THE RIGHT TO RESIST UNLAWFUL ARRESTS AND INDICATES THE WILLINGNESS OF THE COURT TO OVERSEE THIS DIFFICULT BUT IMPORTANT AREA OF INTERACTION BETWEEN THE PRIVATE CITIZEN AND THE STATE. WHILE MANY FAVOR THE ABOLITION OF THE RIGHT TO RESIST UNLAWFUL ARREST, IT SHOULD BE RECOGNIZED THAT THE FORCEFUL INTERVENTION INTO THE PRIVACY AND FREEDOM OF ACTION OF A CITIZEN, EXCEPT WHERE CLEARLY SPECIFIED BY LAW, IS A SERIOUS MATTER, AND THE RIGHT TO RESIST UNLAWFUL ARREST SHOULD BE PROTECTED. (RCB)