Police: Don't Resist-- Sue

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What should a man do when he thinks the police are arresting him without cause? To Newark Bartender Kurt Koonce the answer was obvious: Resist. After all, the cops were claiming that he had sold liquor to a minor—and they had not seen the alleged sale. How could they make the rap stick?

After he lost the first round in his barroom and wound up in court, Koonce learned that he had been both right and wrong. The charge of selling liquor to a minor was dismissed, but he drew a 90-day sentence for assaulting the police. His mother was fined $25 for having come to his aid.

Mother and son appealed on the grounds that every citizen has a common-law right to resist false arrest. A policeman, they argued, may make an arrest for a misdemeanor only if he has a warrant or if the offense is committed in his presence. In this case, the cops had neither excuse. And New Jersey's second highest court has just reversed the Koonces' convictions. In so doing, though, it barred all further resistance to false arrest in New Jersey. Historically, the court noted, the right arose in a day when arrest was well worth fighting. As late as the 18th century, an Englishman could expect months or years in jail without bail, plus torture, disease and often death before trial. Moreover, it was then easy to resist arrest; citizens and constables were equally armed with staves or swords.

As the court pointed out, the situation is now reversed. While jail is far less harrowing, every U.S. policeman packs a gun and is duty-bound not to be cowed by a suspect's resistance. "Self-help," said the court, "is antisocial in an urbanized society." It just about guarantees "escalation into bloodshed" —and is unnecessary at a time when the rights of the accused are being constantly expanded. As a result: "We declare it to be the law of this state that a private citizen may not use force to resist arrest by one he knows or has good reason to believe is an authorized police officer, whether or not the arrest is illegal."

What the judges made law in New Jersey is already in statutes in California, Delaware, New Hampshire and Rhode Island. In those states, the falsely arrested citizen has no choice but to go along peacefully and hope to even the score later with a suit for damages. Latest average award in false-arrest actions against policemen: $7,790.