When and how can a person resist an unlawful arrest? This is not a question of tactics, or whether or not this is advisable. I'm hoping it's legal under at least some narrow circumstances. Is it legal to resist an unlawful arrest of an on-duty police officer in NH if: the officer, by his previous actions, gives any reasonable person reason to believe he will unlawfully cause grievous bodily damage or death and the arrestee feels in fear of un lawful grievous bodily damage (for instance he violently assaults a peaceful protester without any notice, then says &quot;You're next!&quot; while running to another peaceful protester) the officer is affecting a clearly unlawful arrest (for instance an arrest for quietly filming in a time place and manner where filming is clearly legally allowed like off to the side of the lobby of a federal post office) and for no other reason The officer claims he has the right to do illegal things to you like pepper spray you in order to force information or confession The officer murders his civilian wife then affects an arrest of a civilian witness for the explicitly stated reason that he witnessed the crime The officer has no legal jurisdiction to affect an arrest If it's ever legal to resist an unlawful arrest, to what extent can it be legally resisted and can onlookers ever obstruct an unlawful arrest? EDIT and expansion of first sentence: I'm well aware that generally an illegal arrest cannot legally be resisted when a reasonable officer would also be mistaken to have affected such an arrest. Please don't explain how it's a bad idea because 'officers can be equally mistaken about the legal facts and legal applications but they get a privileged legal status to affect an arrest. ' I know if an officer can legally arrest someone for reasons he is mistaken for. I know there are different legal standards for knowledge and evidence, de facto or de jure, regarding a civilian resisting arrest and police affecting an unlawful arrest. I know all that, but I don't know what the standards are in NH.
New Hampshire law makes it illegal to resist arrest, &quot;regardless of whether there is a legal basis for the arrest.&quot; RSA 642:2. You can likely defend yourself against excessive force used in or after the arrest, but you may not resist the arrest itself.
None No law requires police to keep people apart when making statements. Doing so is good police practice. In some police organizations internal regulations or procedures may specify that officers should do so. But those are not laws. In some cases witnesses may have had a chance to confer and agree on a story before police arrive, the police cannot prevent that. The trier of fact can take into account that witnesses had a chanc to agree on a false story.
Yes to everything. Justified use of force is assault / battery / homicide (as appropriate). "Assault" means that a person has placed someone in fear of their life or person. "Battery" means that a person has physically struck someone in some way. "Homicide" means that a person has killed another human. None of these definitions speak to the legality of the action. You are right about the example being assault. Justified use of force is de facto legal. Assault, battery, and homicide are normally crimes, but the justifications for using force carve out exceptions. If the circumstances fit within the justification, the person using the justified force has not committed a crime. (Generally speaking, the person targeted by said force has.) If the situation you describe fits within the laws of justification within the state (and to be fair, it probably does), then your co-worker is right about the actions being perfectly legal. Police are picky about what they investigate, and prosecutors are picky about what they charge. If it's 100% clear from the evidence that you were justified in your use of force, prosecutors will (typically) not press charges, and so police will not bother with an arrest or further investigation. It's really not worth the time and effort for a case that has 0% chance of producing a conviction. However, if the police and prosecutors have some doubts (e.g., they think your force was excessive and therefor not justified), they can still press charges. Being charged with a crime does not mean you have committed a crime. And vice-versa. Justification is an affirmative defense against charges of assault / battery / homicide. An affirmative defense does not mean "I confess to the crime but have a really good excuse." It means that you admit to certain facts that would normally be beneficial to the prosecution, but claim additional facts that either mitigate or make you innocent of the given charges. In the case of justified force, you are admitting to the action of assault, but claiming innocence. When making your defense, your theory of defense must be internally consistent. You cannot admit to a fact when convenient and deny it when it is inconvenient. "I was in Santa Fe at the time, and anyway, Sam did it," is an example of a self-consistent theory that gives multiple reasons to acquit. That's good, because the jury only needs one reason that gives them pause, and now you've got two chances at that. "I was in Santa Fe at the time, and anyway, he was threatening my life," is not internally consistent. If you argue justification, you explicitly declaim any alibi. This situation is more dangerous, because your defense rests entirely on the credibility of the justification. But if you argue an alibi, you implicitly declaim any justification. So building your defense on things the prosecution can disprove is much worse than taking an affirmative defense of justification.
The question is oddly phrased: The law does not give allowances for its violation. Many laws have exceptions. E.g., the law against killing endangered animals contains an exception for defensive killings. Perhaps you are thinking of safe harbors? For example, there are general provisions in the law like "exigent circumstances" that allow police to proceed with actions that, absent those provisions, would constitute violations of law. "Permission" to violate a right can be granted explicitly in the form of a warrant, which allows law enforcement to "violate" specific property and freedom rights. Finally, one might consider an executive pardon or jury-nullification to be ex post "permission to break the law."
Edits added below to outline Florida's laws based on OP's comment Jurisdiction does matter but here is a general answer regarding "stand your ground" laws. States that have so-called "stand your ground laws" each have their own language concerning the law. "Stand your ground laws" are often misunderstood but, generally, just mean that a person has no duty to retreat when using deadly physical force for purposes of self-defense or the defense of others. Your examples are more akin to "castle doctrine" laws which I touch on below. Note that all of these laws vary by jurisdiction. I've provided partial examples from Arizona, New York and California. Using deadly physical force for purposes of self-defense or defense of others is complex law and even a complete example from any particular jurisdiction will not be able to cover all circumstances. Each case will be determined by a judge or jury based on the facts of that particular case. Arizona's "stand your ground" statute, as an example, states: B. A person has no duty to retreat before threatening or using deadly physical force pursuant to this section if the person is in a place where the person may legally be and is not engaged in an unlawful act. "Stand your ground" simply means that a person doesn't have to first attempt to retreat before resorting to the use of deadly force. Arizona's statute regarding justification for self-defense states (emphasis mine): A. Except as provided in subsection B of this section, a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force. B. The threat or use of physical force against another is not justified: In response to verbal provocation alone; or To resist an arrest that the person knows or should know is being made by a peace officer or by a person acting in a peace officer's presence and at his direction, whether the arrest is lawful or unlawful, unless the physical force used by the peace officer exceeds that allowed by law; or If the person provoked the other's use or attempted use of unlawful physical force, unless: (a) The person withdraws from the encounter or clearly communicates to the other his intent to do so reasonably believing he cannot safely withdraw from the encounter; and (b) The other nevertheless continues or attempts to use unlawful physical force against the person. Note the phrase, "extent a reasonable person." This means that the actions of a person using deadly force will be measured against what a "reasonable person" would do in similar circumstances. Some states have a duty to retreat, particularly when in a public place, before using deadly force. New York, as an example, has a "duty to retreat" before using deadly force except in specific circumstances (emphasis mine): A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless: (a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is: (i) in his or her dwelling and not the initial aggressor; or (ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter`s direction, acting pursuant to section 35.30; or (b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or (c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20. Castle Doctrine Laws typically refer to what one may do in their own home when it comes to the use of deadly force. Some states have extended the "castle doctrine" to include personal automobiles as well. California's "castle doctrine" statute, as an example, states that if one is in their own home and someone "unlawfully and forcibly" enters the home one can presume that the person in his or her residence "held a reasonable fear of imminent peril of death or great bodily injury": Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred. As used in this section, great bodily injury means a significant or substantial physical injury. In California's statute both the resident and the person using force to gain entry have to know or have reason to believe that an unlawful and forcible entry occurred. If a person simply entered an unlocked home then the resident would have to have some other reasonable reason to believe that they were in imminent peril of death or great bodily injury. Wikipedia has a reasonable entry on the adoption of "stand your ground" and "castle doctrine" statutes and gives a state-by-state breakdown of both. Note that these laws have seen a lot of change recently and any particular entry for a state may not be accurate. Florida's self-defense laws Florida's "Use or threatened use of force in defense of person" states: 776.012 Use or threatened use of force in defense of person.— (1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force. (2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be. Florida outlines the cases where use, or threatened use, of force is justified. Notice that in the law Florida specifically states that the person threatened does not have a duty to retreat. Florida also specifically states that a person has a "right to stand his or her ground" if the person is in a place where he or she has a right to be and is not engaged in criminal activity. Florida statute also specifically outlines the right to use self-defense within one's home and vehicle. Florida has a "castle doctrine" similar to what was outlined above and similar in nature to New York's and California's laws: The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; Florida has a longer list of exemptions related to who may have used force to enter a home including ownership interest in the property or vehicle, children and grandchildren, the person who engaged defensive force was involved in criminal activity and law enforcement officers. Florida's Justifiable Use Of Force is chapter 776 discusses when force can be used. There was an attempt by the Florida legislature in 2019 to change the standard by which use of force could be justified from "reasonably believes" force is necessary to "a reasonably cautious and prudent person in the same circumstances would objectively believe" force was necessary. The bill was withdrawn in May, 2019.
The principle of constitutional law is that in order to arrest you, the officer would need probable cause. Certain acts are in themselves violations of the order (being closer to another person that 6 feet, illegal sneezing). Walking in public does not per se constitute a violation. In order to briefly stop a person walking on the street (a "Terry stop"), the officer needs a reasonable suspicion that the person is in violation of the law. That means there has to be a reason, and a gut feeling does not count. An officer would not (legally) be able to stop every person they see walking down the street / driving, and demand an explanation of where they are going. If a person is just aimlessly wandering down the strees with friends (even if they are sufficiently separated), that could suffice to justify a stop, given the limited legal excuses for being outside your home.
The victim of domestic violence is referred to as the complaining witness. Domestic violence arrests will result in a criminal investigation. It is not up to the complaining witness to determine if charges are brought against the one who was arrested - this is up to the prosecutor. Here is a good article at Findlaw that discusses the process. If the complaining witness recants, the prosecutor may decide to drop the charges. The prosecutor may, though, decide to continue the charges and prosecute the case. The complaining witness in recanting may face charges as well - for example, for making a false police report. If the prosecutor presses the case and your husband is convicted then, yes, it will be on his record. Seeking the advice of a New York attorney who specializes in these matters is the best course of action. EDIT: Here is additional information regarding New York Criminal History Records: New York State law does specify that, unless the court orders otherwise, arrest records are sealed when criminal actions are terminated in favor of the accused - dismissed, found not guilty, etc. This is spelled out in Criminal Procedure Law 160.50. Arrest records are part of the public record until disposition of the case is completed. At New York State's Court web site, you can read about how to get criminal records of anyone - they are public record so anyone can make a request about anyone. There is a fee of $65. Records can be ordered online and the results can be emailed to you. Searches are processed by an exact match of name and date of birth. From their web site you will see that criminal cases transferred or removed to Family Court are not reported. Neither are records for people who had a single misdemeanor conviction over ten years ago or pending criminal cases categorized as Youthful Offender Eligible. Generally speaking, New York criminal cases are part of the public record and are available to anyone unless they meet certain criteria or have been sealed under New York State law. Note that sealing records doesn't mean the record goes away. It just means that the record is not available to the general public without a court order unsealing the record. Here is the link to on-line direct access to records requests: http://www.nycourts.gov/APPS/chrs/onlinedirectaccess.shtml
Do I correctly understand that Federal employees, notably including the Armed Forces, pledge their duty first to the Constitution of the United States and only secondarily to carry out legal orders? And that they have no legal obligation to execute an illegal order? What process allows a subordinate to defy an illegal order if a superior gives the order? What legal protection does the subordinate have? All officers of the United States government (and for that matter also all officers of state and local governments) including soldiers in the armed forces are sworn to uphold the Constitution. Members of the armed forces are not only allowed to disregard illegal orders, they are obligated to not carry out illegal orders. Operationally, disobeying an order due to the fact that it is unconstitutional is a defense to an effort to fire or discipline a federal government civil service employee who may only be fired for good cause after due process. In the military, the issue would usually present itself in the form of a defense in a court martial for refusing to obey a lawful order of a superior. Of course, it would hardly be unprecedented for someone's firing from a job that was unlawful, or for a wrongful court-martial conviction, to be upheld on appeal. Suppose the Congress holds someone in contempt. The Congress, as I understand it, goes to a court to enforce the contempt charge. The court turns to Federal law enforcement to bring action. What if the President directs Federal law enforcement to ignore the court order? What if law enforcement complies with the President? The U.S. Justice Department is charged with bringing contempt of Congress cases at the request of Congress. But, an attorney retained by Congress could probably bring such an action in the U.S. District Court of the District of Columbia if the U.S. Justice Department refused to do so. Contempt may be civil or criminal, and unlike ordinary criminal charges (felonies can only be brought based upon grand jury indictments and grand juries are controlled by prosecutors) either civil or criminal contempt charges can be brought by a non-governmental employee attorney. The established practice is to seek contempt sanctions against the lowest level employee who has the authority to take the action requested, or to seek contempt sanctions against everyone from that lowest level employee up through the chain of command to the responsible cabinet officer. The President is generally not named as a party against whom contempt charges are sought. Defiance of the law in the face of a binding and immediately effective court order would be a constitutional crisis and you would need to move to the realm of politics and political realities, and away from the realm of what the law says that people should or should not do, to meaningfully predict how a constitutional crisis turns out. The law assumes that all government officials will obey a lawful court order duly enforced. If government law enforcement officers start defying court orders, then there is a constitutional crisis. On the other hand, the vast majority of law enforcement officers in the United States are civil servants who aren't beholden personally to the President. They were appointed on a merit basis, they are civil servants who can't be fired without good cause and due process, they are in agencies that have an institutional culture of obeying court orders. The civil servants with more seniority (and basically all senior military officers in the U.S. military) have served under multiple Presidents of different political parties. The number of political appointees supervising them is fairly modest. Likewise, most federal judges at any given time were appointed by prior Presidents and even judges appointed by a current President will not infrequently rule against the federal government when the facts and law demand that they do so. There is less politics and there is more unity in interpretation of the law among federal judges and federal law enforcement and legal officials than is generally assumed by more cynical members of the general public. Suppose Congress orders fines. What is to be done if no one will enforce the fines? A court can order that the fines be paid out of the U.S. Treasury. The order itself can have the force of law without the cooperation of any U.S. Treasury official. Sustained defiance of such a court order would lead to a constitutional crisis. Same scenario as 1 but this time it’s impeachment and conviction: the President defies any action to remove him. What if the President simply barricades himself in the White House and orders security and military personnel to protect him? Is there a protocol in the U.S. military hierarchy to deal with this scenario? This has never actually happened, of course, so it is hypothetical. The Treasury Department, General Services Administration and Secretary of State (and all other government officials) should revoke privileges that the President has by virtue of being President and provide them to the new acting President (realistically, in the simple scenario presented, current Vice President Pence). The military should stay out of it, but should immediately start treating acting President Pence, and not the impeached incumbent as the Commander-in-Chief. U.S. military forces are indoctrinated on the Presidential succession and it is unlikely that many military officers would disregard a Presidential impeachment. The Secret Service should stop defending the former President except in an ex-President capacity. In theory, one could imagine acting President Pence bringing an eviction action in the local courts of the District of Columbia just as one would with any holdover tenant. Since the local courts in D.C. are federal, this doesn't present the federalism problems that it would if the same thing were done in a state court with respect to federal real estate, and U.S. marshals would evict him and his family like anyone else. The trickier situation in terms of creating a constitutional crisis, honestly, is really one where the President is clearly and blatantly defying the law and court orders, but the U.S. Senate refuses to convict the President in an impeachment proceeding out of partisan bias. What should common citizens do if any of these scenarios play out? Whatever they want, in a lawful manner. Ultimately, this would be a matter for federal government officials (elected and appointed alike) to figure out.