Protesters Have the Right to Protest … and to Resist Unlawful Arrest

Top Military Commander and Courts Support Right to Protest

In response to comments from those supporting the police crackdowns on peaceful protesters exercising their constitutional rights but violating local ordinances (see comments here), reader Purplemuse writes:

The Constitution supersedes local ordinances that are being used to OBSTRUCT 1st Amendment Rights. The camping ITSELF is in order to MAKE A STATEMENT – a First Amendment Right. Protesters are not camping because it is fun to expose yourself to the elements and hardship and you want to roast wienies and marshmallows and drink beer while swapping ghost stories.

Would you listen to Colin Powell, retired four-star general in the United States Army, Powell also served as National Security Advisor (1987–1989), as Commander of the U.S. Army Forces Command (1989) and as Chairman of the Joint Chiefs of Staff (1989–1993) when he says, “It isn’t enough just to scream at the Occupy Wall Street demonstrations. We need our political system to start reflecting this anger back into, ‘How do we fix it? How do we get the economy going again?’” He also states that the Occupy Wall Street Protests are “As American as Apple Pie.”

Does he go on to qualify his statement by saying, “as long as they obey local (misdemeanor) ordinances. No, he does not. He actually goes on to say that he “gets” it.

If a man, well above your rank, that you’d likely drop everything to stand up in a room to honor, “gets” that peaceful protests, by design (that’s why they are referred to as ‘civil disobedience’) infringe on ordinances and make the public uncomfortable in order to be heard, are as American as Apple Pie; do you think you could set your fear of disobedience aside long enough to defend those protesters against physical harm for exercising those American as Apple Pie Rights? If you can’t than I think you need to join the ranks of officers who simply “do as they are told” and jab petite women in the spleen with billy clubs (as in Berkeley) in order to incite a riot. (BTW: They did not succeed, Berkeley stood firm in determined peace).

(Watch Powell’s statement here).

Of course, it’s not just Powell.  Veterans from every branch of the military – and across 3 generations – are coming out to support the “occupy” protests.

And in response to the Berkeley police saying that linking arms and resisting attempts to clear a space is an act of “violence”, reader David writes:

It is every citizen’s duty to resist false arrest

There is no such crime as “resisting arrest.” This is a fictitious crime dreamed up by law enforcement to accuse a citizen of a crime when they refuse to surrender to the illegal demands of the police.

The U.S. Supreme Court has ruled on numerous occasions that resisting a false arrest is not merely a citizen’s right, but his duty! In fact, the Supreme Court has gone so far as to rule that if a law enforcement officer is killed as a result of actions stemming from a citizen’s attempts to defend themselves against a false arrest, it is the fault of the officer, not the citizen.

Here’s a short collection of relevant court rulings on false arrest and resisting arrest:

“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 exercise of his right of self defense, his assailant is killed, he is justified.” Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.

“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.” Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903.

“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. Robinson, 145 ME. 77, 72 ATL. 260).

“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 and may be resisted by the use of force, as in self- defense.” (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).

Do individuals have the right to come to the aid of another citizens being falsely arrested? You bet they do. As another court case ruled:

“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 may have submitted to such custody, without resistance.” (Adams v. State, 121 Ga. 16, 48 S.E. 910).

And on the issue of actually killing an arresting officer in self defense:

“Citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529.

I believe that violence discredits the entire protest movement.  I therefore hope that the protesters remain peaceful, even when confronted with unlawful arrests. However, as David points out, the police have no right to make unlawful arrests in the first place.


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  • I hate being the Devil’s Advocate on this one, but the 1st Amendment is being grossly misrepresented. As far as I know there is no Federal law against peaceful protesting. What right do states or counties or municipalities to prohibit protests? Well I believe that would fall under the Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. Furthermore, some of the protesting has not been peaceful, and it is getting worse every day. On the one hand I definitely support the protests, but on the other hand I lean towards agreeing with my Portland Mayor Sam Adams who sent out the following notice two days ago:

    2011-11-10: A Statement from Mayor Sam Adams regarding Occupy Portland

    Since Occupy Portland began five weeks ago, I have been very clear in my objective: We must balance people’s rights to free speech, with keeping the city safe and moving. From the beginning, behavior has mattered.

    We have maintained our balance through day-to-day decisions regarding Occupy Portland. While the Constitution requires city governments to facilitate speech by citizens, city governments also have the authority and responsibility to regulate associated behaviors on behalf of the general public.

    In the past few days, the balance has tipped: We have experienced two very serious drug overdoses, where individuals required immediate resuscitation in the camp. As has been widely reported, police have arrested a suspect in Tuesday night’s disturbing Molotov cocktail incident. Crime, especially reported assaults, has increased in the area in and around the camps. This is in addition to the health and sanitation issues that the camp’s close quarters have brought about.

    Occupy has had considerable time to share its movement’s messages with the public, but has lost control of the camps it created. The cost to the larger community is rapidly increasing.

    Now, the City of Portland finds itself at a turning point.

    The City will soon temporarily close Lownsdale and Chapman Squares to the public, to put an end to safety, health and crime problems, and to repair the park land. When the City re-opens the parks, the City will enforce all park and criminal laws in the Squares and the sidewalks, and the park land will be available for large, organized speech events by permit.

    At 12:01 am on Sunday, November 13, all persons and property in Lownsdale and Chapman Squares will again be subject to enforcement of all laws including the laws against being in a park after midnight (PCC 20.12.210), and erecting structures in a park (PCC 20.12.080). On or after November 13, by authority of Portland City Code, the City will close Lownsdale and Chapman Squares for repair and to remediate any remaining safety, health and crime problems.

    Portland Police are carefully preparing for this closure, and share my goal for an orderly and peaceful closure to the camps.

    I want to make it clear that this action is not an action against the Occupy Portland movement.

    In fact, the Occupy Portland movement has highlighted the challenges our community, like many across the country, are facing with homelessnesss. Too many in our community are without a safe place to call home. Despite fiscal challenges, the City has continued to invest in long term solutions to end homelessness. Commissioner Fish and I will be working closely with our dedicated network of service providers to make sure everyone at the camp is aware of the resources that are available. Experienced outreach workers will be reaching out to the homeless people at the camp to help them access existing resources in our community, like health care, emergency shelter, permanent housing placement assistance, and short term needs.

    I have said from the beginning that I believe the Occupy movement would have to evolve in order to realize its full potential.

    It is my sincere hope that the movement, with its focus on widespread economic inequity, will flourish in its next phase-a phase where we can focus all of our energies on economic and social justice, not on port-a-potties and tents. I believe Occupy Portland can lead the nation in this next phase of the Occupy Movement, and I personally look forward to working with participants toward their broader goals.

    I also want to extend my thanks to: Occupy Portland participants, who by and large are non-violent, peaceful, and dedicated to the larger vision of this movement; Occupy’s appointed liaisons, who have worked hard to communicate clearly with City and Police officials; Our city’s unions, who have stepped in to help with sanitation issues in the camp; Social service providers and first responders, for the support they’ve provided to the camp’s most vulnerable population.

    I also want to thank my council colleagues and their staffs, for their assistance in troubleshooting the day-to-day issues we’ve faced along the way, and the men and women of the Portland Police bureau, who have worked tirelessly to facilitate these unprecedented events in a peaceful and professional manner.

    And to the broader community, I thank you for your understanding and support of the approach we have taken to balancing the right to free speech, with the need to keep our city safe and moving.


    Sam Adams

    • trsedwards

      In the First line of the Tenth amendment you site: Those powers not delegated to the United States by the Constitution. The First Amendment right of free speech (etc) is one of those powers delegated to the united states by the constitution. on that point you are not playing devil’s advocate, your just wrong.

  • Great Op-Ed and my sentiments are in line with the author’s. But if I can make one suggestion…
    Please think twice before you use the good deed of a man who sold the American people and the World a war based on lies and deceit. The Commander-in-Chief’s show man in the $5,000 oxford suit that sent thousands of young men and women in uniform to die based on his testimony in front of the UN, not to mention the million + Iraqis. He shouldn’t be exonorated for providing testimony to the Constitution’s power in protecting Free Speech given all the harm he’s done to his reputation and the United States of America.


    My appreciation to you for at least allowing me to submit this. I tried posting it on Prison Planet and they wouldn’t put it up.

  • Smith_comma_John

    With all due respect to our cause, Purplemuse’s statement “The camping ITSELF is in order to MAKE A STATEMENT – a First Amendment Right.” is pure baloney and typifies the sort of muddled thinking that has gotten us into this HUGE mess we’re in in the first place. Murder, for example, even if motivated purely by a desire to “make a statement”, is NOT protected by the 1st Amendment. Nor is shouting “fire!” in a crowded theater if there’s no fire. I could go on but hopefully y’all get it. If we don’t collectively begin to reason in a SANE and LOGICAL fashion, we’re screwed.

  • Anthony J. Hall

    The reclaiming of our right of assembly in the habitation of our own public places makes a powerful statement in these days when our parliaments, legislatures and congresses are so deeply corrupted by the occupations of lobbyists for the war machine, when our mainstream media lie to us so unrelentingly.

  • Daniel Brady

    Regading the article, the person who supported the mayor’s statement and the last comment by John, Smith. I support the camps right to exist; it IS a form of free speech. I mean to say if money is, according to the supreme court, if burning an American flag is, according to the supreme court, then assembling peaceably is as well. As to the inconveniences the assembly may cause I assert that it is the DUTY of the government to provide the necessary services to the people, where ever they are. So there should be police on site to assist with difficulties, garbage should be collected, food distributed and other support made available. People should be allowed to gather, they should take care of themselves but the society should also assist with making the process a success.

    • Adam Evenson

      @Daniel Brady:

      I normally don’t encounter statements on comment boards as truly intelligent and thoughtful as yours are. I couldn’t have put my own thoughts any better than you just did.
      Your scenario is exactly what even the most rudimentary U.S. Constitutional Rights necessities should and do dictate. When I announce my World Emperorship by and by, I will seek out advisors like you. You would be on the top of the list.

  • N. Kahootz


    Until ALL of the hedge fund fraudsters (who played shell games with taxpayer money and lost, then had the chutzpah to demand more bailouts and bonuses) have been held accountable for their crimes, please don’t preach about respect for the rule of law, m’kay?

    Do you not see the absurdity, nay, the injustice in that?

    Oligarchs get away with crimes that would sentence the ‘little people’ to multiple life sentences, if not worse.

  • MountainHome

    Excellent article in this is what we want to hear, but what is the reality in the streets with the police and the reality in the courts?

  • Mark Rixey

    @Daniel Brady

    While it is convenient to cite money (legal) and burning the American Flag (legal) as examples, I would instead refer you to Smith_comma_Johns statement. It reflects the realistic view. Free speech is protected, but not commiting crimes for it’s sake.

  • Marla Louise

    David in the initial article said “There is no such crime as “resisting arrest.” This is a fictitious crime dreamed up by law enforcement to accuse a citizen of a crime when they refuse to surrender to the illegal demands of the police.”

    While I will not go that far, there is some truth in that statement. But I would point out that Oakland police even went more Orwellian than that charge in the arrest and beating of the veteran Kayvan Sabehgi on Nov 4. The charge was not “resisting arrest”, but “suspicion of resisting arrest”!

  • Donna


    I believe you misrepresented the intent of the 10th Amendment. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” As the 1st Amendment clearly states, “Congress shall make no law…abridging the freedom of speech, or of the press, or of the right of the people to peaceably assemble…”

    First, they didn’t make Amendments in order that they might be used to limit rights guaranteed under previous Amendments. If that were the case, they would have to amend the previous Amendments (like the repeal of prohibition).

    Second, by including the freedom of speech and assembly in the 1st Amendment, Congress explicitly stated that the power to abridge speech was not allowed. It isn’t that Congress delegated or didn’t delegate the powers to the state. There was no need, it was already covered.

  • trsedwards

    It seems to me here, that what is now occurring is a semantics debate on exactly When it is appropriate for local law to trump constitutionalism law and squash the rights of the people to assemble and speak freely. I will make this as simple as possible. There is no point at which this becomes a valid right of the state/city authority. Ever. I know that nobody with any kind of sense is buying this “rise in crime” boogie man stories. Even if they were, it still does not qualify. nothing. ever. qualifies.

  • Erick

    More power to those standing up and fighting for our country… “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”-Declaration Of Independence… Its is our right and duty as american to fight for what we believe in to busy watching NFL or fashion week