Resistance is futile: The right to resist unlawful arrest in an era of aggressive policing

The police are relying on more aggressive tactics in their effort to fight crime. A common complaint regarding these tactics is that innocent persons are sometimes subjected to unlawful arrest. Ar common law there was a right to resist an illegal arrest. The modern trend, however; has been to elimin ate the right to resist. Abrogation of the common law right is based on sev eral factors, including the development of modern criminal procedure, the a bility to seek redress Via other means, and the belief that violence should not be encouraged. This article examines the history and current status of the right to resist an unlawful arrest. The authors argue that attacks on the common law right are based on a misunderstanding of the original justif ications for the right and that there remains ct great need for the right, particularly as new police tactics increase the probability of arbitrary as sertions authority.