by Douglas Ankney

The Supreme Court of Georgia affirmed that the common-law right to resist an unlawful arrest continues to be the law in Georgia and announced that the right includes the right to use proportionate force against government property to escape from an unlawful detention following the arrest.

Christopher Glenn was walking near a tree line when he was confronted by police officers who were investigating a report of a suspicious person. Glenn immediately identified himself to the officers and informed them he was walking home. The officers handcuffed Glenn and placed him in a patrol car. Several minutes later, Glenn complained of being dehydrated and an ambulance was summoned. While he was being examined in the back of the ambulance, the supervising officer ordered him out, saying that Glenn would be examined by jail personnel. Glenn refused to exit the ambulance, and officers forcibly dragged him out. Glenn continued to resist the officers, and he damaged one of the doors to a patrol car when the officers forced him inside.

Glenn was charged with loitering and prowling, obstruction of a law enforcement officer, and interference with government property. Glenn was on probation, and the State filed a petition to revoke it based on the new charges.

At a hearing on the petition, the trial court ruled that the evidence did not support a finding that Glenn committed the offense of loitering and prowling. The judge also determined that the evidence did not support a finding that Glenn committed the offense of obstruction because there was no basis for arresting Glenn on the charge of loitering and prowling. But the trial court did find by a preponderance of the evidence that Glenn committed the offense of interference with government property when he damaged the patrol car door. The judge reasoned that even though the arrest was unlawful, the time for forcibly resisting the arrest had passed, and Glenn should’ve acquiesced to the arrest to later attack the charges in court. The judge revoked Glenn’s probation for 90 days, and Glenn appealed. A divided panel of the Court of Appeals (“COA”) affirmed, reasoning that “Glenn’s damage to the vehicle was not in response to an immediate need to resist an unlawful arrest, but rather was an intentional act occurring some time after he was arrested.” The Georgia Supreme Court granted certiorari.

The Court observed “[t]he Georgia General Assembly adopted the common law of England as of May 14, 1776, as Georgia’s own law, except to the extent that Georgia’s statutory or constitutional law displaced the common law, and that adoption remains in force today.” OCGA § 1-1-10(c)(1). Personal liberty and corresponding limitations on the power to arrest were fundamental to the Magna Carta: “No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.” Magna Carta § 39 (1215). Under the common law, arrests were accomplished with and without warrants. An arrest warrant was issued only when a person made a formal accusation, under oath, and in the presence of a magistrate. 4 William Blackstone, Commentaries on the Laws of England (1769) (“4 Blackstone”). If the magistrate determined there was probable cause to believe a crime had been committed and that the accused was responsible, a warrant was issued commanding that the accused be brought in to answer for the charge. 1 William Blackstone, Commentaries on the Laws of England (1765).

But for purposes of public safety, warrantless arrests were permitted for felonies. 4 Blackstone. Warrantless arrests were also permitted for a misdemeanor if the officer personally witnessed the offense being committed. Id. The arrestee was then taken before a magistrate to answer for the charge. Id. The common-law right to forcibly resist an unlawful arrest arose in the context of a warrantless arrest. Paul G. Chevigny, “The Right to Resist an Unlawful Arrest,” 78 Yale L.J. 1128 (1969).

In The Queen v. Tooley, 92 Eng. Rep. 349 (K.B. 1709), a constable arrested a woman without a warrant on the charge of being a disorderly person and put her in jail. Three men armed with swords intervened to free the woman. One of the armed men was charged with homicide after he fatally struck a man who was assisting the constable. Id. A jury later found that the woman was not behaving disorderly. Id. Based on the jury’s findings, the court determined that the constable had no legal authority to arrest the woman. Therefore, he was not executing the duties of his office but was instead acting as a common oppressor. The court reasoned an invasion of the liberty of any person was an offense against the Magna Carta, i.e., the imprisonment of a person without lawful authority, especially under “a colour of justice … is sufficient provocation to all people out of compassion” to use force to rescue a person who is “unlawfully restrained of her liberty.” Id. The fact that the arrest had already been accomplished and she was held in jail did not lessen the provocation. In fact, the Tooley Court reasoned jailing her only “aggravated” the provocation. The court held that the provocation of the woman’s unlawful arrest and unlawful detention reduced the offense from murder to manslaughter. Id.

When this rule was applied in later cases where the defendant was charged with crimes other than homicide while resisting arrest, a finding that a person committed an otherwise criminal act in the course of resisting an unlawful arrest served as a complete defense to the criminal charges. The King v. Curvan, 168 Eng. Rep. 1213 (K.B. 1826).

However, if the officer had an arrest warrant, there was no common-law right to resist. When an officer received a warrant, he was bound to execute it, and he was always exercising his lawful authority when he made an arrest based on a warrant. 4 Blackstone. An arrest effectuated via a warrant is presumed lawful because a neutral magistrate has determined there is probable cause. Mullis v. State, 27 S.E.2d 91 (Ga. 1943). It is one’s duty to submit to a lawful arrest. Id.

Thus, it remains that under the common law, a person cannot be punished for fleeing from or physically resisting an unlawful, warrantless arrest or escaping from an unlawful detention so long as the person uses no more force than is necessary to achieve such purpose. United States v. Di Re, 332 U.S. 581 (1948). Further, a person unlawfully arrested has a common-law right to escape from detention following an unlawful arrest. Francis Wharton, The Law of Homicide § 411 (3d ed. 1907). The fact that no resistance or protest may have been made to the original arrest does not make the arrest legal and does not deprive the person of the right to later attempt to regain his liberty. Franklin v. Amerson, 45 S.E. 698 (Ga. 1903).

“Thus,” the Georgia Supreme Court concluded in the instant case, “the common-law right to resist an illegal detention continues after an unlawful, warrantless arrest is accomplished.” Consequently, the time that elapsed from Glenn being handcuffed until he resisted had no bearing on the issue.

Next, the Court noted: “In the context of the common-law right to resist an unlawful arrest, we have found no controlling authority for distinguishing between conduct that may harm an officer and conduct that may damage government property.” Despite the lack of case law on point, the Court announced, “because the common-law right to resist an unlawful arrest or detention is framed in terms of the proportionate use of force necessary to resist the force used to arrest or detain a person, we conclude that the right does not distinguish between the use of force against an arresting officer’s person and the use of force against objects, including government property.”

Finally, the Court thoroughly examined the Constitution of Georgia and the Georgia Code and concluded that this common-law right to resist an unlawful arrest has not been displaced and continues to be the law in Georgia.

Applying the foregoing legal principles, the Court explained that Glenn’s right to resist “did not evaporate” because he kicked the door “some time” after he was first handcuffed. The trial court erred by not considering whether he used proportionate force to resist the officers’ actions under the circumstances, the Court ruled.

Accordingly, the Court reversed the Court of Appeals, directed it to vacate the revocation of Glenn’s probation, and remanded to the trial court for further proceedings consistent with this opinion. See: Glenn v. State, 849 S.E.2d 409 (Ga. 2020).

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