Before Arrest, No Right to Resist Illegal Arrest
In Oklahoma, you have a right to resist an illegal arrest. You cannot, however, resist an illegal detention, according to a published decision the Oklahoma Court of Criminal Appeals returned on Sept. 18, 2015.
In Oklahoma v. Nelson, 2015 OK CR 10, the court sought to strike a balance between a State interest in discouraging violence and the inconvenience of a brief seizure caused by a traffic stop.
“[T]his ruling does not result in a deprivation of liberty,” wrote Judge Robert Hudson, who delivered the unanimous decision.
Maybe the ruling does not result in a deprivation of liberty, most of the time. What about those times when rogue cops use traffic stops to rob, rape or murder citizens? It has happened.
The decision also diminishes an important deterrent against more casual police misconduct. Under this ruling, officers can potentially stop a person on the street for no legitimate reason then use the person’s refusal to comply with illegal orders as evidence of obstruction or resisting arrest.
The Oklahoma court recognizes a right to resist an illegal arrest. Even attorneys well versed in case law, however, vigorously debate exactly when a detention becomes an arrest. The Oklahoma court, nonetheless, hinged citizens right to resist unlawful police power on the nebulous concepts that differentiate detention from arrest.
The appeal arose from a Tulsa traffic stop by an officer who alleged a driver had not used a turn signal before making a left turn. The driver then tried to walk away from the traffic stop. The decision quotes the driver as stating “I can go wherever I want. You can’t stop me.”
The officer responded by physically restraining the driver. According to court records, the driver then turned around contrary to the officer’s order, pulled his hands away and laid on his hands to avoid being placed in handcuffs. The officer charged the driver with Obstructing an Officer and Resisting an Officer.
The driver moved to quash testimony about obstruction and resisting because that evidence was gathered after a traffic stop the trial court determined was unlawful. The arresting officer said no other vehicles were on the road at the time of the stop. Oklahoma statutes only require drivers to signal when turning “in the event other traffic may be affected by such movement.”
In a hearing on the motion to quash, the defendant asserted the court could not rely on the Tulsa ordinance because the state’s brief had not provided language of Tulsa ordinance. (See Goomda v. City of Oklahoma City 1973 OK CR 81.)
Court Found Traffic Stop Illegal
The Court of Criminal Appeals court deferred to the magistrate’s discretion that the stop was legally out of bounds. The Appeals court noted an absence of any evidence to suggest the officer’s vehicle might have been affected by an unannounced turn.
The trial court record likewise contained nothing suggesting the officer had relied on a mistaken understanding of the law, which might have justified an otherwise illegal stop under recent Supreme Court precedent in Heien v. North Carolina, 574 U.S. ___ (2014).
Although evidence from the unlawful traffic stop could be quashed, the appeals court concluded the driver’s subsequent obstruction and resistance to arrest created a separate set of evidence. Citing Jacobs v. State 2006 OK CR 4, the court relied on a three-part test to determine if evidence was the result of an illegal stop or the result of an intervening circumstance:
- the time between an illegal seizure and discovery of additional evidence,
- any intervening circumstances and
- the purpose and flagrancy of official misconduct.
The driver’s alleged obstruction occurred near the time of the illegal stop. Yet, walking away and refusing to be handcuffed, he nonetheless created new evidence, the court concluded. As for the third test, whatever official misconduct lead to the traffic stop was less than flagrant.
“The initial traffic stop was not per se illegal,” the court concluded.
So far, so good. With that, Oklahoma would have a three part rule based on tried-and-true case law to determine when to suppress evidence of resisting an illegal detention. If official misconduct in an illegal detention is not flagrant, or perhaps felonious toward the detainee, police could introduce evidence of obstruction.
The court did not stop there. Sure, “[a]s a general rule, one may reasonably resist an unlawful arrest” the Oklahoma Court of Criminal Appeals wrote. In addition to case law supporting the right to resist, “[t]o resist an unlawful arrest is a common law right,” the court added.
(Judge Gary Lumpkin dissented from the decision with regard to a common law right to resist unlawful arrest, saying Oklahoma is not a common law state, and that a right to resist unlawful arrest has not been codified in Oklahoma law.)
Court: But the Other States Are Doing It
Regardless a strong pronouncement of the right to resist unlawful arrest, however, the Oklahoma court said, “a routine traffic stop is more analogous to an investigative detention than a custodial arrest,” quoting the U.S. court in Graves v. Thomas 450, F.3d 1215, 1223, (10th Cir. 2006)
A majority of states have rejected a right to resist detentions short of arrest, the court opined. The decision cited similar rulings in Georgia, Arizona, Indiana, Virginia, Nebraska, North Dakota, Maryland and Iowa.
The court also cited California v Hodari D, 499 US 621 (1991), which established that arrest occurs when an officer applies force to a fleeing suspect or a suspect actually submits to a show of authority. The Oklahoma court was not so concerned with Hodari’s rule for when arrest occurs. From Hodari, the Oklahoma court quoted U.S. Supreme Court advise that “it almost invariably is the responsible course to comply.”
The threads of logic winding through right-to-resist-detention cases involves detainee’s general inability to determine the legality of a detention, and some very real dangers of allowing people to resist attempts at police detention. Yet those same reasons could be construed to vanquish the right to resist illegal arrest. What are the differences?
Investigative stops are arguably based on more ambiguous circumstances than arrest. By their nature, investigative stops allow an officer to pursue reasonable suspicions and determine there is probable cause for an arrest or citation. Investigative stops are much more frequent than arrests. Infrequent resistance of arguably illegal traffic stops might occur more frequently than rare instances when a person resists an illegal arrest.
Is that enough for the court not to recognize a right to resist an unlawful traffic stop? The Oklahoma court thought so. Yet the decision would seem to let police go ahead with unlawful seizures just as long as they do not say “You are under arrest” or as Hodari established, make some show of force.
In fact, in view of the Hodari standard, a person would not be able to lawfully resist illegal arrest until they had already submitted to a show of force, or already turned the situation into an arrest by fleeing a detention.
When Would Illegal Arrest Warrant Resistance
To find an actual circumstance where considering the flagrancy of an illegal traffic stop would create a better result than refusing to recognize any right to resist such a stop, consider Mississippi in 1964. Three civil rights workers had been held for investigative detention then released. After their release, a lynch mob gave chase.
Among those in pursuit was the same inexperienced deputy who had first detained and arrested the three. The deputy caught up with the fleeing civil rights workers, stopped them and escorted them to a remote location where they were murdered.
It would boggle the mind that any court would conclude James Chaney, Andrew Goodman, and Michael Schwerner had no right to flee a 1964 Mississippi traffic stop conducted for no other reason than to execute them. Had the Oklahoma court in 2015 affirmed the three part test that weighs the flagrancy of official misconduct when a person resists detention, the actions of individuals fleeing a cop in league with a lynch mob would be inadmissible as evidence of resisting arrest.
As it stands, though, the court’s refusal to recognize a right to resist a traffic stop imperils those who have legitimate reasons to fear police or consider a traffic stop illegal. Rather than weigh the facts of each case, an Oklahoma court might convict a person for resisting an officer’s illegal order, no matter how egregious or flagrant the improprietous official act.
How could cops abuse the privilege of forcing citizens to comply with illegal detentions? One example could involve private property.
Individuals driving on private property might rightly assert police have no legitimate right to stop them but the Oklahoma court seems to suggest police can stop anybody, anywhere, anytime. All a wrongly detained person can do is ask for a day in court, no matter how flagrant an officer’s disregard for the legitimate boundaries of police authority.
A woman driving on a lonely rural road obeying all traffic laws might reasonably decide to continue to a lighted, populated area after a cop acts suspiciously during an otherwise dubious traffic stop. Political activists in conflict with a local government might have a reason to avoid an apparently unmerited traffic stop that could place them in peril of being overwhelmed by a mob.
The Nelson decision might even embolden police who like to file those occasional obstructing by talking charges. In Nelson, the court reiterated its decision in Trent v. State 1989 OK CR 36 that said “words alone may suffice to support a conviction for Obstructing an Officer.” Will Oklahoma’s criminal appeals court now turn a deaf ear to drivers who were cited for accurately explaining the law to cops who conduct illegal traffic stops?
Most reasonable people would agree with me that it is seldom a good idea to resist arrest, even an illegal arrest. In most cases, it is safer to take your chances in court. But the reasons a person might legitimately resist arrest are not that much different than the reasons a person would flee a traffic stop.
A reasonable person would not think anyone being robbed or raped by a rogue cop during a traffic stop is not obliged to go along simply because the cop has not formally placed the victim under arrest. Such cases would seem unthinkable, but traffic stop robberies have recently occurred in Tulsa County, and traffic stop sexual assaults have recently been alleged elsewhere in Oklahoma.
We would prefer that the Oklahoma Court of Criminal Appeals consider such infrequent but real circumstances as traffic stops that are otherwise per se illegal before handing down such brash and totalitarian conclusions as “[W]e decline to recognize a right to resist an unlawful traffic stop in Oklahoma.”
Strategy Session: Tulsa Criminal Attorney
If you have been charged with obstructing an officer or resisting arrest in Oklahoma, contact a Tulsa criminal attorney to discuss your rights. To schedule your initial strategy session with a defense attorney in Tulsa, Ok, call Wirth Law Office at (918) 879-1681 or send me your question using the form at the top of this page.
