Robert Tolan shooting (Bellaire, TX) and the right to resist false arrest.

[rantingredneck]

I've heard/read many times over the years that it is a citizen's right to resist false/illegal arrest by law enforcement. With that in mind, consider the case of Robert Tolan:

Excerpted from http://blogs.houstonpress.com/hairballs/2009/02/baseball_player_shot_by_police.php# :
Robert Tolan, the minor league baseball player shot by Bellaire cops in his parents' driveway on December 31, called for Bellaire Mayor Cindy Siegel's resignation at a press conference today.

"I would hope that Bellaire's residents are appalled and outraged," Tolan told a crowd of about 100 people who gathered in a Meyerland ballroom. "I would indeed like to see her resignation."

Tolan and his brother were returning to their parents' home when two officers pulled them over, for what Bellaire Assistant Police Chief Byron Holloway said was the mistaken belief that Tolan was driving a stolen SUV.

"Their excuse was they typed the number in wrong," Tolan said today. He also said that, given Bellaire's small size, the police "know who their residents are. We're not visitors...We've lived there for 15 years. They know who I am...they know my car."

Tolan has claimed that at least one officer assaulted his mother that night, when she came out to see exactly why police officers had their guns drawn and had her son laying on the ground. Responding to a question about how he thought the incident would have turned out if he had not ignored the cops' orders to stay on the ground, Tolan said, "With all due respect, let's see your mom slammed up against a garage door....I mean no disrespect, [but] I would think and I would hope that that would enrage a lot of you. So right or wrong, I was acting on instinct."


Mr. Tolan was shot after the arresting officer reportedly slammed his mother against the garage door outside the family home. He rose from the ground and (according to his HBO Real Sports interview) said something along the lines of "Get your (expletive) hands off my mother".

Assuming the facts are as they have been reported how does the right to resist false arrest play into this particular case? Are the officers involved toast? Is the city looking at mega $ payout here?

I believe so, but I'd like the opinions of our resident legal eagles. Others as well, but as the rules of this subforum and the site as a whole go, no LEO bashing......

Play nice fellas......


Edit: I think there's one minor error in this article. Per the HBO Real Sports interview Mr. Tolan was with his cousin, not his brother. In doing the background for the story they made a big deal out of him being an only child and following in his father's footsteps (Father was a MLB player.)

[Glenn E. Meyer]

There is TX law on such issues but I'm out the door. Maybe some night owl can look at the TX DPS site to find it.

[Wildalaska]

I've heard/read many times over the years that it is a citizen's right to resist false/illegal arrest by law enforcement.

My understanding is that no person has any right to resist any arrest from Law Enforcement, and that in most jurisdictions, the fact that an arrest was unlawful is not a defense or affirmative offense to a charge of resisting arrest.

WildotherwiseanarchyresultsAlaska TM

[rantingredneck]

I was on my way out the door to the gym this morning and got caught up in his interview with Bryant Gumbel on Real Sports. (What started me thinking about this aspect of his case).

The interview with the mayor of Bellaire did not make her look very good. She stammered quite a bit through her rationalizations for the officers actions. Unconvincing to say the least.

As further background both officers had multiple letters of reprimand in their files, though none were reported to be for excessive force issues. One had 6 and the other 3. Both had letters for misleading investigators (regarding an automobile accident if I recall correctly). When questioned about this and why they were still on the force the mayor stammered out something along the lines of "they don't report to me". Guess she never heard of "the buck stops here...?"

[Wagonman]

In Illinois you are not allowed to defeat any legal arrest by a LEO. The last thing you want to do is resist arrest. Save you umbrage for judicial process. I understand the civil rights issue but there aren't any judges at the scene of the crime.

Let the Police do their job and have your defense attorney do his job.

[Wildalaska]

Here is the Texas statute:

Sec. 38.03. Resisting Arrest, Search, or Transportation.
(a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.
(b) It is no defense to prosecution under this section that the arrest or search was unlawful.
(c) Except as provided in Subsection (d), an offense under this section is a Class A misdemeanor.
(d) An offense under this section is a felony of the third degree if the actor uses a deadly weapon to resist the arrest or search.

WildharkihearthecallofcthuluAlaska TM

[rantingredneck]

OK, so he had no right to resist false arrest per TX law.

Given the facts as reported (which can differ from facts as established at trial) do you think the officers and/or city are still toast?

[rantingredneck]

Some googling turned up this article:

http://www.time.com/time/printout/0,8816,834572,00.html

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.



Bolding is mine.

While I tend to disagree in principle with courts creating law, I can't fault their reasoning in this situation. Seems as if resistance will likely lead to very bad things as in the Tolan case.

[vranasaurus]

Citizens should not be encouraged to resist arrest. If laws allowed the resisiting of an illegal arrest you would have a situation where people would feel empowered to resist the law enforcement based upon their own beliefs.

You also don't want a situation where law enforcement violates rights and acts with impunity. $7800 to the victim and a slap on the wrist for an officer doesn't seem to me to create a system that discourages officers from these things.

We have a judicial system and it should be allowed to do it's job. The city in this case should conduct an inquiry into the officers actions. If they were trying to affect an unlawful arrest there should be some serious sanctions. Just because a person resists doesn't make the initial arrest or the behavior of the officers any more lawful.

[rwilson452]

In PA, it's the law you can't resist.

[Wagonman]

I don't see a rash of legit false arrests.

If anything, there is a lot of de-policing especially in your big cities. It is not worth my job, house, or freedom to be proactive. I make better money now than I did when I was runnin' and gunnin'-----less uniform damage also.

[jughead2]

at one time this old man thinks he remembers reading tn law that one could resist an illegal arrest. it has been too long dont know where to look but dont think i would want to try it. methinks it would be suicide.:eek:

[FALPhil]

This is probably one of those things that needs to work its way through the court system to get a definitive answer. After all, one of the often overlooked parts of the Marbury vs Madison case is that SCOTUS decided that there was no duty to obey unconstitutional laws.

[Double Naught Spy]

Assuming the facts are as they have been reported how does the right to resist false arrest play into this particular case?

It does not. Tolan was not resisting false arrest. Tolan was attempting to interfere with an officer in the execution of his duties and did so in an inappropriate manner. As a result, he got shot. The actions resulting in him getting shot did not pertain to his own possible arrest.

Tolan's mother attempted to interfere with the officer's duties who had detained two possible car thieves (one of whom was Tolan, of course). Tolan's mother was ordered back and refused, then was physically detained. So far, no harm has been done.

Then Tolan acted in a verbally and reportedly physically aggressive manner at which time the officer feared for his life and shot Tolan. Tolan was not attempting to resist false arrest. Tolan was attempting to interfere physically with the detainment of his mother.

Tolan's mother had no right to interfere with the officer's duties when they detained Tolan and Tolan had no right to do so when they detained his mother.

Are the officers involved toast? Is the city looking at mega $ payout here?

Only if the use of lethal force was not actually justified.

[Bartholomew Roberts]

Actually under Texas law, it is a defense to prosecution that you used force to resist an unlawful arrest if the peace officer or a person acting within the presence of the peace officer "was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;"
(See Section 9.31 of the Texas Penal Code for further elaboration of self-defense).

So you can use force, including lethal force, in some very limited, narrow circumstances; but I would expect to spend a lot of money on lawyers afterwards, even if you have compelling evidence concerning your innocence.

In this case, I don't see anything in the officers actions that rises to the level outlined in 9.31 (at least Tolan hasn't claimed that in press interviews so far and with all his chattiness, he sure will look suspicious if he starts claiming it now).

On the practical side, yes, those officers probably are toast and the city probably will pay out a lot of money. While the city might be able to win the argument in court, chances are real high a jury will bury them, so the city will settle long before then. Part of that settlement will almost certainly include these two officers getting their walking papers in addition to a decent chunk of change.

[rantingredneck]

Don't get me wrong, I am in no way advocating resisting arrest false or otherwise. Just a thought I had after watching Mr. Tolan's (and others) interview yesterday.

I'm personally with the "cooperate and call a lawyer" crowd. I also agree that Mr. Tolan wasn't necessarily resisting arrest when he was shot. While it was ill-advised for Mr. Tolan to get off the ground when his mother was slammed against the wall by the officer I can understand the reaction.

[Wildalaska]

This is probably one of those things that needs to work its way through the court system to get a definitive answer.

The generally statutory prohibition against resisting arrest and the nullification the defense of unlawful arrest as a defense raises no constitutional issues.

Even where the statute is silent, abrogation of the common law defense raises no constitutional issue.

Please read Marbury again by the way

WildlettheposturingcontinueAlaska TM

[MedicineBow]

There was no "unlawful" or "false" arrest here.

If the authorities have a reasonable basis for the arrest, even if they turn out to be mistaken (I'm innocent!), you will still be guilty of a separate crime if you resist.

[vranasaurus]

If the authorities have a reasonable basis for the arrest


What was the reasonable basis for the arrest?

According to the article the police "typed in the numbers wrong" leading them to believe that the SUV was stolen. If that is the case the police should have known that the SUV in question was not stolen and there was no basis for arrest.

[MedicineBow]

What was the reasonable basis for the arrest?

I should have said "lawful" basis....but, anyway, their basis was honest, though mistaken.

Such is life. Innocent people get arrested all the time. If they choose to resist, then they've just done their first crime.

[Wagonman]

It is reasonable to believe the address printed on a warrant is correct.

People lie to the Police everyday.

"it ain't me"

"these aren't my pants"

"I didn't shoplift" ---especially in parking lot of store with tagged merchandise in their possession.

[Wagonman]

It is reasonable to believe the information received on a plate check is correct.

People lie to the Police everyday.

"it ain't me"

"these aren't my pants"

"I didn't shoplift" ---especially in parking lot of store with tagged merchandise in their possession.

[rantingredneck]

People lie to the Police everyday.

"it ain't me"

"these aren't my pants"

"I didn't shoplift" ---especially in parking lot of store with tagged merchandise in their possession.

While I am sure this is absolutely true, it is not reasonable to assume that every person an officer encounters is guilty or is lying to them.

[vranasaurus]

People lie to the Police everyday.

So they get to assume that everyone is lying to them?

There are officers who lie everyday to get warrants, on reports, and about the "honest mistakes" they make.

Do I get to assume every officer is doing such things?

[nate45]

I'll bet if he would have been, calm, polite and compliant the whole unfortunate situation would have been quickly cleared up. I know thats what I would have done.

Please don't ask me what I would do if the police shoved my mother up against the garage, because A) I don't live with my mother and B) she would never come running out of the house, screaming, yelling and interfering with the police.

[ilbob]

the cops will investigate themselves.

regardless of whether the cops' actions were indeed reasonable or justified, if the investigation finds they are, it will be viewed as tainted. as it should be.

this is why we are supposed to have elected officials overseeing these employees. its up to the elected officials to protect citizens from abuse by government employees. that system, if it ever worked, broke down a long time ago, so no one trusts it anymore.

it is hard to say how this will play out, or even what really happened, as everyone will have their own story, and the lawyers for those involved will make sure they have their stories well memorized.

at least the victim is not dead and can speak up for himself.

[ilbob]

According to the article the police "typed in the numbers wrong" leading them to believe that the SUV was stolen.

One would think that would be relatively easy to prove one way or the other.

[Wagonman]

+ 1 nate.

If my computer tells me your car is stolen and you can't prove it isn't, it is and you are going in.

I again don't understand the anti-police aminus.

We make mistakes----and we pay retail for them as my brother on the BART is finding out, hopefully a jury will exonerate him and he can get on with his life

[RedneckFur]

We make mistakes----and we pay retail for them as my brother on the BART is finding out, hopefully a jury will exonerate him and he can get on with his life

Well, at least we know who came here with an agenda :rolleyes:


While I do not think that you're allowed to resist arest, when somone is hurt or killed as a result of a false arrest, I feel the offending officer should be charged with assault or manslaughter, and serve the appropritate time in a penal facility. I can be held criminally liable for mistakes I make at my job. Its only fair that the police do as well.

There needs to be a stronger set of checks and balances when it comes to how our laws are inforced. When innocent lives are at risk, there are no room for mistakes.

Its common sense, that you should follow orders when arrested even if innocent, and take your day in court to prove yourself innocent. That said, I think I know how I, and most of us would react if we saw a strange man roughing up our mothers.

For me, its not a clean cut case. I think a jury should get a chance to sort this out.

[Al Norris]

No more comments about BART, in this thread. They are off topic.

As far as this particular incident goes, the police typed in a license plate number and got back the results. At that point, they had probable cause. Everything that followed appears to be within reason.

The time to argue, generally, is in court. Not at the point of arrest.

I'm not a betting man, but in this instance, if the arresting officers had had the time to confront the suspect about the stolen vehicle, I'd wager that things could have been cleared up, rather quick.

From what we (think we) know, things happened rather fast and the police had no time to tell the suspect why he was being arrested. The innocent suspect aggravated the situation and was shot. Luckily, it wasn't fatal and all he is being charged with is resisting arrest.

The general feeling of some of you, about how bad cops are, is not just misplaced. It's unwarranted. Any other conclusions, are nothing more than you folks reading into the incident, things that are not in evidence.

[rantingredneck]

If my computer tells me your car is stolen and you can't prove it isn't, it is and you are going in.

According to his interview Mr. Tolan was never given the opportunity to prove otherwise. He was on his front porch on the way into his house when he was lit up with a flashlight at gunpoint and ordered onto his face. He complied at that point. When his father came out to talk to the police officers he was compliant and himself assumed the position against his own vehicle. All the while explaining that the vehicle in question was not stolen. Keep in mind that Bellaire is a rather well to do suburb of Houston and the Tolan's had lived there for some 15 years and were prominent citizens.

Granted his mother probably was a little out of sorts, but I suspect many of us here would be if a quiet evening at home was interrupted in this way. When Mr. Tolan stood up he made a mistake. Shouldn't have nearly cost him his life IMO. Shouldn't have cost him his career.

I'm sure there is another side to this story, and a jury will eventually be the trier of fact. What I've seen and read of the story does not look good for the officers involved or the city, but we shall see I suppose.

[vranasaurus]

If my computer tells me your car is stolen and you can't prove it isn't, it is and you are going in.

What happened to innocent until proven guilty?

The state must prove that the vehicle is stolen not the other way around.

I have no animus toward the police and I don't think it is right for anyone to resist arrest.

But I also have a problem with the automatic assumption of guilt and the attitude of we can do no wrong that many oficers have.

The other question I have is what was the justification for the use of deadly force?

[Wagonman]

Innocence and guilt are matters for the courtroom not the crime scene.

I just don't think that 99.9% of the Cops out there act in the jackbooted way you are inferring.

Use of Force rules vary from department to department. Just from the scant particulars I can't make a judgement on good shoot/badshoot. But, car theft is a felony in Illinois, which changes a lot on the use of force spectrum.



Reread OP good shoot Offender is actiing in a way in which his actions will likely cause serious physical injury.
Restraining Mom in policy actions are aggressive without weapon---- she could have had impact weapon utilized against her



The bottom line is cooperate with the Police and consult your lawyer when you make bail.

Isn't that the advice given to CCW after a shooting, cooperate with booking and utilize your Miranda rights.

If that simple rule had been followed there would be NO ISSUE

If he and she had just cooperated he would have gotten an apology and "have a good evening"

[rantingredneck]

If that simple rule had been followed there would be NO ISSUE

Wagonman, you are absolutely correct here. However, if the 2 officers involved had doublechecked the license plate digits there would also have been no issue.

[vranasaurus]

Just make bail and talk to your lawyer is fine but you seem to have no problem with officers arresting people who have done nothing wrong. Just because the system will work it out doesn't it make it all right. If Mr. Tolan cooperated there would still be an issue (arresting of an innocent person) and that is what you fail to see. The only issue you see is the resisting arrest had there been no resistance you would see no problem with how this played out.

It is not OK to resist arrest and it is not OK for the officers to use excessive force and/or arrest innocent people. From looking at the available information there should be consequences on both sides. You are not looking at both sides.

[Wagonman]

Au contraire, If he had cooperated produced his license and REGISTRATION and still had been arrested your arguement would hold water. At the time of his and his mother's ill-advised action he was a SUSPECT in a car theft INVESTIGATION. His actions his fault.

Do not argue finer points of arrest and detention you will lose all day as long as Police Officer is acting REASONABLY.

[vranasaurus]

Reasonableness would include verifying information. Just because the plates match doesn't mean it's a stolen vehicle. Did they bother to match the vehicle description?

Had the officers bothered to verify information there would have been no need for a traffic stop.

[Fremmer]

Ah, but can a mere statute nullify the (for the sake of argument) fundamental Constitutional right to resist unlawful arrest? :eek:

[Double Naught Spy]

What happened to innocent until proven guilty?

The state must prove that the vehicle is stolen not the other way around.

Yes, innocent until proven guilty. The State would have to prove the vehicle was stolen in COURT, after Tolan and his buddy have been arrested. Even though you are presumed innocent until proven guilty, you can get arrested. You aren't convicted and then arrested.

[ilbob]

This whole line of debate seems pointless.

One side thinks cops can do no wrong, no matter what they do, and the other thinks cops can do no right.

The cops are claiming somehow that their mistake makes it OK that they ended up shooting an innocent man and roughed up an old woman. Its understandable why that position would ruffle a few feathers.

Cops think average citizens should obey police orders or be subject to whatever force the officers on the scene deem appropriate. Average citizens mostly just want to be left alone and resent being ordered around like serfs by supposed public servants.

Some how, some way, we as a society are going to have to deal with this divide between what police see as reasonable police conduct and what the average citizen sees as reasonable.

[rantingredneck]

Do not argue finer points of arrest and detention you will lose all day as long as Police Officer is acting REASONABLY.

Is it typical/reasonable for a police car to follow the suspect to his home and without turning on blue lights light the suspect up with flashlights and drawn guns without even asking for license and registration? (In effect this wasn't even a traffic stop as Mr. Tolan was on his front porch on his way into his home when the officers stopped him. Kinda hard to show your license and registration when you're proned out on your porch.)

Is it typical/reasonable for an officer to use deadly force on a suspect who shouts even though his hands are plainly visible out to his sides? No tazer, impact weapon, spray first?

These are Mr. Tolan's contentions and as I said above a jury will eventually be the trier of fact here. It may eventually come to light that the officers acted in a reasonable manner, but so far it doesn't seem to be the case from where I'm sitting.

I wonder if there was a dash cam in the car, that would clear some of this up....

[Al Norris]

Two pages of rants, with little to no real information.

This ones done.