Rule of Law or Rule by Law Enforcement?
By now everyone ought to have watched the three videos about the Tulsa PD/Ware shooting. No one can watch those videos knowing that the law didn't allow the towing of the car until 90 days past expiration date of the tags can justify the awful abuse of Ware. No he didn't comply, yes he had every right not to comply with an unlawful order to exit the car for the purpose of towing the car illegally.
If you haven't watched the videos they are everywhere. The rookie cop's dash cam and body cam video spliced together by the Tulsa PD and edited trying to explain the unexplainable.
Here is all three videos put on screen so you can see Sgt. Johnson lunging in to kick Ware in the groin/stomach area multiple times and see it from the rookie's body cam too. Also notice where the rookie starts to lunge in and kick like he had seen his Sargent do.
We will start by saying that anyone that is illegally arrested would be wise to comply and not resist and let the courts work through the issues. Police and the courts rarely punish themselves and you would be on a long and arduous road defending yourself, in the process bankrupting yourself and likely your family, and you might well be murdered by the cops in the process of being arrested.
That said, all those fine words mean nothing if you are being tortured by excessive physical force and fear for your life or fear substantial physical harm. The wise way might be to comply but those that take their Constitutional rights seriously know that you alone can choose which hill to die upon. Knowing your rights might well allow you to decide to suffer through the incident as you know you have a legal right to be made whole later. If you can afford it.....
In Oklahoma a cop can arrest you if he has a warrant, if you committed a misdemeanor in his presence, or if a felony has been committed even outside the officer's presence if the officer has reasonable cause, when the officer has probable cause to believe that a driver is drunk, when an officer has probable cause that a domestic battery has occurred within 72 hours IF he has seen injury or impairment caused by that domestic battery offense, when an officer is acting on a breech of a protective order, or when an officer has probable cause that a person has threatened another. Probable cause is a strict legal definition, that a reasonable person would believe that a crime had been committed and not that a trained officer might think a crime had been committed. .
You cannot be arrested on a traffic stop for a moving or non moving violation nor can you be arrested for having out of date tags.
But where did we get this right of self defense from police officers?
The Magna Charter laid out the beginnings of Common Law that gives any citizen the right of self defense even against an unlawful arrest. English Common Law was incorporated by U.S. law as our laws developed and even a state that is not a Common Law state must pay heed to both the U.S. Constitution and Common Law when it relates to our Constitutionally protected God given rights.
There have been many court cases and much friction between the government and individual rights on this issue. In Plummer V. State, 136 IND 306 the decision stated that “Citizens may resist an unlawful arrest to the point of taking an arresting officer's life in necessary. The court relied upon John Bad Elk V. U.S., 177 U.S. 529 where SCOTUS said “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”
Other cases agreed. Housh V. People said “An arrest made with a defective warrant, or one issued without affidavit, or one that fails to alleged a crime is within jurisdiction, and one who is being arrested may resiste arrest and break away. If the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter. Runyan v. State stated “ When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may without retreating, repel by force and if in the reasonable excerisce of his right of self defense his assailant is killed, he is justified.”
Down in Texas we have Veaverts v. State, that says “These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence. State V. Robinson ruled “ An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery. State v. Mobley ruled that “Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer nd may be resisted by the use of force, as in self defense.
And Adams v. State, “One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped, or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer even though he might have submitted to such custody without resistance.
In the real world, how does this play out? Take the case of John De Rosset. Deputies in plain clothes had set up a sting operation against his niece for prostitution and when the meeting didn't occur they went to where the girl was living, knocked on the door, she answered the door and they dragged her outside. The girl was not aware that they were cops so she screamed. John was eating dinner and heard the screams and cries for help in the dark so he grabbed his gun and fired a warning shot into the air. The deputies fired back without identifying themselves and a fire fight was on. John, his niece, and one deputy was badly wounded after more than 40 shots from both parties were fired. John was arrested on three counts of attempted murder of a police officer.
The niece had called 911 during the fire fight and told the dispatcher she had no idea who the attackers were. The deputies for their part didn't have an arrest warrant for the niece nor at anytime during the fire fight did they announce they were police. Despite the Stand Your Ground law John spent five years in prison after the local court ruled that he should have known that the assailants were police officers. He appealed to the 5th Circuit in 2019 and the court said otherwise and kicked the case back to the district court. The local court then decided that John knew that his niece was a hooker and thus was “furthering criminal activities” which meant the Stand Your Ground law didn't apply. On April 15th of this year the appellate court dismissed the charges against him stating that mere knowledge of criminal activities was not “furthering criminal activities”.
One of the more common cases quoted in self defense cases is Plummer v. State, an 1893 case from Indiana where a manslaughter conviction was overturned after a man protected himself from illegal use of force by a police officer. Where this one is interesting is that it isn't about being illegally arrested, in the Ware/Tulsa PD incident Ware wasn't being arrested, his car was being illegally towed and the cops were forcing him out of the car based upon their erroneous idea that a dealer tag that was 37 days expired allowed towing; it didn't, 90 days past expiration is required in Oklahoma. What the Plummer case was about was the use of excessive force and your right to defend yourself from the same.
Plumer was an old man in ill health and the town had threatened to cut some of his trees and Plummer objected to that so he went looking for the town board members and he had armed himself with a handgun. Along the way he ran into two of the officials who said, no, they weren't going to cut his trees and they told Plummer to just go home which Plummer did. In the process of all this Plummer had made threats including pointing a pistol and he made threats against the town Marshall, one James Dorn. Dorn catches Plummer on the way home then Dorn whacked Plummer with a billy club and then took a poorly aimed shot at him before telling Plummer he was under arrest. Prior to the clubbing and shot fired Plumer had not resisted or acted with violence, he was just walking home and told the Marshall to keep away. Plummer returned fire as did Dorn and Plummer was a better shot than Dorn. Both were hit, Dorn died.
So Plummer was charged with manslaughter, the right charge as he was acting in self defense againt unreasonable force. The jury didn't buy it and sentenced Plummer to 15 years in prison, Plummer appealed.
The court found that Dorn might have or might not have had the authority to make a warrant-less arrest and the court would assume that he did have a legal right to arrest Plummer. The court also found that arresting someone might require force but it has to be reasonable force, only that which is necessary. Like in the Ware case overwhelmingly physical force was used before it was allowed, Dorn striking Plummer with a club and shooting at him before stating that Plummer was under arrest was battery and Plummer had “a clear right to defend himself, even to the taking of the life of his assailant.” The court ruled that an inadequate self defense instructions were given to the jury by the trial court and the conviction was reversed.
Another case was Wilson v. State where the court discussed the Plummer decision and it states that where the arresting officer is using excessive force such that unless the arrestee defends himself or flees, he is likely to suffer great bodily harm or death. Such was the case of Ware who was being viciously kicked in the groin or stomach area. The decision did parse the decision stating that an unlawful arrest where the officer doesn't use excessive force doesn't allow a self defense defense. By 1995 the 7th Circuit Court quoted Plummer and states that “Not because its use is necessary to protect him from an unlawful arrest, but because it is the only way in which he can protect himself from death or serious bodily harm”.
To recap, Plummer is about the right of self defense from excessive force, not to protect yourself from arrest.
Things are seen a bit different in Oklahoma according to some legal experts. There was another Tulsa case where a cop stopped a driver for not using a turn signal and the driver decided just to walk away. The cop restrains the driver and the driver fought back and was charged with obstruction and resisting an officer. The court ruled that the traffic stop was unlawful, Oklahoma statutes require turn signals only when “in the event other traffic may be affected by such movement.” and the cop had testified that there were no other cars on the road at the time of the stop. Since the stop itself was illegal any evidence seized was not allowed in court. The court did parse things very much though, finding that events after the traffic stop opened up new charges and under Jacobs v. State 2006 OK CR 4, the court used a three part test to determine if the evidence was poisoned fruit of the tree or if it was allowed.
Oklahoma law recognizes that an unlawful arrest can be resisted as long as the resistance is reasonable but a person may not resist unlawful detention. An improper traffic stop is a detention, not an arrest so unless the officer tried to arrest them for the traffic stop without probable cause. The three part test is as follows:
- The time between an illegal seizure and the discovery of additional evidence
- Any intervening circumstances
- The purpose and flagrancy of the official misconduct.
The first part, well, no additional evidence was discovered until the car was searched after the shooting. They wanted to tow Ware's car so they had cause to search it for drugs that a traffic stop didn't allow. It is the third part that hangs the Tulsa PD and the local D.A., the official misconduct was pepper spraying a man that wasn't being arrested then kicking him in the groin/stomach area multiple times, all of which was excessive force and a federal civil rights felony. The court went on to state that one may reasonably resist an unlawful arrest and that the resisting of an unlawful arrest is a common law right. Lumpkin dissented saying that the right to resist an unlawful arrest isn't codified in Oklahoma law but it damn sure is in SCOTUS decisions and common law.
Was this a routine traffic stop an investigative detention and not an arrest? It was, the cops never said they were arresting Ware, they said they wanted to tow his car and couldn't with him in the car. Graves v. Thomas, 10th Circuit, lays out what a detention is and what an arrest is and California v. Hodari says that an arrest occurs when a cop applies force to a fleeing suspect or when a suspect submits to a show of authority. Neither happened, Ware wasn't fleeing or submitting, he was standing his ground and not leaving his car. He was free to leave so one could argue that he wasn't being detained either, the cops just wanted to car jack his car.
The Jacobs case appears to show the appellate court stating this: Police can make unlawful seizures as long as they do not say “You are under arrest” or use force as Hodari found needed. If you are allowed to fight back against an illegal arrest but not an illegal detention you would either have to flee or wait till the cops started beating your ass before you could legally defend yourself. That is aside from the use of excessive force of course, there is no doubt that Ware had the right to defend himself from excessive force as the only way to ensure his safety from great bodily harm.
If the courts think this way, how would they rule in the case of the OHP trooper that was raping women near Bristow and Sapulpa a few years back? How about the multiple instances of fake cops pulling over people on the highways each year?
If this Jacobs decision stands a person being robbed or raped by a cop after being detained in a traffic stop would be unable to legally resist the unlawful acts simply because the words “You are under arrest” had not been uttered. How about the allegations in the Holtzclaw case in Oklaoma city? Assuming the crimes were committed and we aren't saying they were, were those women prohibited from fleeing or resisting the sexual advances until they were told they were under arrest? Would not a reasonable and just justice system say that victims of all unlawful or illegal acts retain the right of self defense?
Complicating all of this is that once the cops used physical force against Ware they were not arresting him, not once did they threaten arrest because they had no legal right to arrest him over an expired tag. But the use of force against him, first taser, then multiple shots of pepper spray to the face, then attempting to drag him out of the car could be construed into calling that an arrest but despite all of that I never heard the cops utter the word arrest once.
There is one case, Heien v. North Carolina that went all the way up to SCOTUS and was affirmed that said a cop relying upon a mistaken understanding of the law might justify an illegal traffic stop. But assume the stop was legal or it was an honest mistake, it was the seizure of the car before Oklahoma statutes allowed the seizure that was the problem. These are decisions that give officers the benefit of the doubt if they are acting in good consciousness, relying upon a warrant put out by another department, but simply being ignorant of the law is never an excuse in court.
