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Additional open carry arrests at capital building

mustangkiller

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Here's a thought I had. If one or more of these folks had used minimal force to resist arrest, how would that have played out in court? First consider that Texas has a law prohibiting resisting even if the arrest is unlawful. Then consider that the supreme court has said that using violence up to and including deadly force is ok if the arrest is unlawful.
 

KYGlockster

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Here's a thought I had. If one or more of these folks had used minimal force to resist arrest, how would that have played out in court? First consider that Texas has a law prohibiting resisting even if the arrest is unlawful. Then consider that the supreme court has said that using violence up to and including deadly force is ok if the arrest is unlawful.

Cite?
 

davidmcbeth

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Here's a thought I had. If one or more of these folks had used minimal force to resist arrest, how would that have played out in court? First consider that Texas has a law prohibiting resisting even if the arrest is unlawful. Then consider that the supreme court has said that using violence up to and including deadly force is ok if the arrest is unlawful.

Most states have laws saying that resisting is unlawful, when the arrest itself is unlawful.

These laws are outrageous .... IMO.

Happy to read the case you noted but did not cite...
 

davidmcbeth

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Try to look up.. US V. Bad Elk

Thanks. I read the opinion which was based on common law. However, most states have written statues that make the common law moot.

http://scholar.google.com/scholar_case?case=3215964715110500029&hl=en&as_sdt=8003

Casselman v. State, 472 NE 2d 1310 - Ind: Court of Appeals, 3rd Dist. 1985

The Elk case pre-dates the Casselman case and the Casselman case highlights other decisions regarding statues and common law.

The Elk case was ruled on April 30, 1900..

In my state you can resist but only generally on your property or house (as they are not only arresting you but gaining entry into an area they normally would require a warrant).

Common law prevails when no statue is passed regarding the same subject matter; if a statue and common law conflict, the common law is void.

So when you see a common law based case ... you'll need to check and see if any statue(s) have been passed that may have made the common law a moot point.

Thanks for the Elk cite ... it helped me see more court decisions resisting in my location better ...
 
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stealthyeliminator

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Texas makes it a crime to use force to resist arrest, even when the arrest is unlawful, with an exception for when more force is being used than necessary to make the arrest. Considering Tom Jefferson's ribs were broken, putting him out of work, there's a pretty good argument that more force was used than necessary in his case.

http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.9.htm Scroll down to Subchapter C

(b) The use of force against another is not justified:
...
(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);
...
(c) The use of force to resist an arrest or search is justified:

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.
...
Sec. 9.33. DEFENSE OF THIRD PERSON. A person is justified in using force or deadly force against another to protect a third person if:

(1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and

(2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.


Regardless of whether or not it's "technically legal", resisting arrest may not be conducive to Texas passing less restrictive open carry laws, and at least in this case justice can still be pursued for those falsely arrested and injured. That doesn't mean I'm ok with citizens being abused just so they can be held up on a pedestal for political reasons, don't get that impression...
 

rushcreek2

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If you have reason to believe that the arresting officers are going to administer a beating to you , or worse you are clearly justified in resisting arrest with whatever level of force is required to defend yourself.

Arrests like the one at the Capitol Sunday obviously do not warrant resistance.

I knew of a former police chief in West Texas many years back who was reported to me by reliable sources ( other LEO's )to have a habit of using his fists on handcuffed individuals. A person having once experienced such treatment would be a good example of warranted resistance to any attempted arrest by same officer, or officers.
 
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stealthyeliminator

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If you have reason to believe that the arresting officers are going to administer a beating to you , or worse you are clearly justified in resisting arrest with whatever level of force is required to defend yourself.

Arrests like the one at the Capitol Sunday obviously do not warrant resistance.

I knew of a former police chief in West Texas many years back who was reported to me by reliable sources ( other LEO's )to have a habit of using his fists on handcuffed individuals. A person having once experienced such treatment would be a good example of warranted resistance to any attempted arrest by same officer, or officers.

Did you miss the part where his ribs were broken? I didn't think a typical arrest in which there was no resistance resulted in broken bones. (or at least, damaged to a degree that required hospitalization, and may result in the loss of employment since he cannot work). It was (edit)NOT a simple, "oh, we gotcha, lol, come on down to the jail for a few hours and then you can bail out and go home, and here, wear these handcuffs on the trip"

Also not that it matters but it was on Saturday :)

Edit: originally forgot my NOT, lol
 
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rushcreek2

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I didn't miss the report of cracked ribs. The thought crossed my mind to double check that "Sunday" thing....but like you say - not that it matters.

Not seeing any reason on the video justifying the use of force by either the persons arrested or onlookers.

I believe he will be well compensated for his injuries.
 

mustangkiller

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Sorry about the lack of cites. Luckily, someone jumped in while I was away. Like I said, it was just a thought and wanted others opinions. I don't know enough about the court cases to form an educated opinion so I posed it here knowing someone smarter than I would.
 

KBCraig

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Not seeing any reason on the video justifying the use of force by either the persons arrested or onlookers.

Did you see any resistance by those being arrested? Did you see more force than was necessary to effect the arrest being used?

A: I didn't.
B: I did.

Ergo, force to resist arrest was justified.
 

Augustin

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Sooner or later people will quit recording an arrest and will be recording a riot...

A riot? Try a revolution. The towns and cities of America are about to burn with rebellion. And it sure looks like the spark will ignite in Texas.

Gary Marbut of the Montana Shooting Sports Association recently wrote the following in a letter to the Supreme Court: “The natives are beyond restless. They are at the stage of collecting torches and pitchforks and preparing to head for the castle gates en masse,...”

See link for his entire letter:

http://www.wnd.com/2013/11/americans-collecting-torches-pitchforks-over-feds-arrogance/

http://www.wnd.com/files/2013/11/MontanaLetter22.pdf

"But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security." from The unanimous Declaration of the thirteen united States of America.
 

bchunter

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OC of long arms is legal here, but that's the same crap they'll charge anyone transporting a gun on their person with...
 

FTG-05

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