Citation. 218 Wis. 2d 350,577 N.W.2d 825, 1998 Wisc.
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The Defendant resisted an unlawful arrest and was convicted of battery. Defendant argued that she was entitled to resist under the common law affirmative defense of the right to resist an unlawful arrest.
Synopsis of Rule of Law.
There is no right to resist an unlawful arrest that is conducted using reasonable force.
Facts.
The Defendant was the mother of a five year-old boy. An officer came to investigate her son’s involvement in the theft of a bicycle. The Defendant became disagreeable and an altercation ensued. The Defendant was charged with disorderly conduct and the felony of battery of an officer. The trial court dismissed all charges and the State appealed solely on the battery charge.
Issue.
Whether there still exists the privilege to forcibly resist unlawful arrest in the absence of unreasonable force.
Held.
There should be no right to forcibly resist an arrest that is conducted with reasonable force.
The majority of jurisdictions have determined that the right of self help is antisocial and unacceptably dangerous.
The abrogation of this court of the affirmative defense of the right resist unlawful arrest is prospective only, and will not apply to the case at bar.
Concurrence.
The concurrence agreed with the majority’s concern regarding the prospect of violent encounters between the police and individual if this common law right was maintained. However, the concurrence disagreed with the complete abrogation of the defense and stated that the affirmative defense was meant for a situation just like this case.
Discussion.
The court ruled that the common law right to resist an unlawful arrest was instituted to allow the Defendant to defend against the possibility of long detention periods, physical abuse, etc. Currently these dangers are no longer prevalent. The court rejected the argument that such changes should be left to the legislature. Instead the court ruled that such changes could be enacted by the courts if it was necessary in the interest of justice.
