Alabama law makes it clear: You cannot be charged with resisting an arrest that was unlawful to begin with

Liberty Duke

Evidence strongly suggests that my October 2013 arrest, by an Alabama deputy who neither showed a warrant nor said he had one, was unlawful. So how on earth was I charged with "resisting arrest," and convicted, resulting in a fine of $845? For that matter, how did I wind up incarcerated for five months on an arrest that was conducted outside the law?

None of that can happen in a place where the actual law means anything. But we are talking about Shelby County, Alabama, and District Judge Ron Jackson--who I knew from previous experience has a tendency to pull "law" from some dark place underneath his robe. We also are talking about powerful conservative legal/political figures, led by Rob Riley and lobbyist Liberty Duke (and God knows who else behind the curtains) who wanted me in jail to stop my reporting on this blog.

Here is the fundamental question we asked in a recent post: Can you be charged with resisting an unlawful arrest? The answer is no, and here is why:

Code of Alabama 13A-10-41 (Resisting Arrest) states:

A person commits the crime of resisting arrest if he intentionally prevents or attempts to prevent a peace officer from affecting a lawful arrest of himself or of another person.

Was my arrest lawful? No, it was not--on at least three grounds:

(1) Officer Chris Blevins entered our home without showing a warrant or saying he had one. At my resisting-arrest trial, prosecutor Tonya Willingham was instructed to turn over any warrants as evidence, and she said, "Your Honor, we don't have any." At this point, it's a matter of public record that there was no warrant for my arrest. Either that, or Ms. Willingham withheld evidence, which could cost her law license. Entering a dwelling without a valid warrant violates a landmark U.S. Supreme Court case styled Payton v. New York, 445 U.S. 573 (1979). (That case involves serious Fourth Amendment issues, and we will examine it further in upcoming posts.)

(2) Officer Mike DeHart "served" us with Rob Riley's lawsuit via an unconstitutional traffic stop. I contested service as improper and invalid, and that placed the burden on Riley and Duke to prove that service was conducted properly. No hearing ever was held on that subject once I filed a Motion to Quash Service. (I did not "ignore" the lawsuit, or a court order, as has been widely reported: I responded by challenging service, as any semi-competent attorney would have done under similar circumstances.) The plaintiffs never proved lawful service, so that means the court did not have jurisdiction over me. And that means both my arrest and incarceration were unlawful--ordered by a court and a judge (Claud Neilson) who had no authority over me. It's hard to imagine a more grotesque violation of constitutional rights than that.

Rob Riley

(3) My arrest was based on alleged violation of a temporary restraining order (TRO) and preliminary injunction in the Riley/Duke defamation case. But more than 200 years of First Amendment law prohibits such actions as "prior restraints" on free speech. In other words, they prohibit speech before it has been found unlawful at trial--and there was no trial in the Riley/Duke case, meaning my reporting still has never been found false or defamatory in any legitimate proceeding. All of this is governed by a landmark U.S. Supreme Court case styled Near v. Minnesota, 283 U.S. 697 (1931). My arrest might represent the most flagrant violation of Near in American history.

What is Alabama case law on the subject of resisting arrest. It's spelled out in a 2013 federal-court case styled Rigas v. City of Rogersville:

Under Alabama law, a person commits the crime of resisting a lawful arrest by preventing or “attempting to prevent a peace officer from affecting [sic] a lawful arrest of himself or of another person.” Ala. Code § 13A-10-41. An arrest without a warrant, as here, may be effected “if a public offense has been committed or a breach of the peace threatened in the presence of the officer.” Ala. Code § 15-10- 46 3(1). There is no Alabama law or practice criminalizing resistance of an unlawful arrest, however. See Shinault v. City of Huntsville, 579 So. 2d 696, 698 (Ala. Crim. App. 1991); see also id. at 699–700 (Bowen, J., concurring). Indeed, Alabama law has historically permitted use of reasonable force to resist an unlawful arrest. Ala. Code § 13A-3-28 Commentary (1975) (“Alabama law . . . allows a person to use reasonable force to resist an unlawful arrest.” (alteration supplied)) (citing Spooney v. State, 217 Ala. 219, 225 (Ala. 1928); Brown v. State, 109 Ala. 70, 91 (Ala. 1895); Tarwater v. State, 75 So. 816, 817 (Ala. Crim. App. 1917));see also, e.g., Brown, 109 Ala. at 91 (“It is not the duty of the citizen to submit to any other than a lawful arrest. It has been said the duty ‘is found in the law side by side with the right of resistance to an unlawful one . . . .’” (alteration supplied) (quoting Drennan v. People, 10 Mich. 169, 186 (Mich. 1862)).

Note the powerful language, that a citizen has no duty to submit to an unlawful arrest. Also note that this law has roots that date to at least 1862.

Is it any wonder that California lawyer and conservative legal analyst Ken White, of the Popehat blog, smelled something funny about my arrest and incarceration:

It's not clear from the reporting how the prosecution proved the elements of the offense. I'm not talking about my standard skepticism of police claims that a suspect improperly resisted. I'm talking about proving that the arrest was lawful in the first place.

Under Alabama law resisting arrest is an attempt to prevent a lawful arrest. Resisting an unlawful arrest is not, as I understand Alabama law, a violation of the resisting arrest statute. To make a lawful arrest under Alabama law, a peace officer must have an arrest warrant, or must have probable cause to believe the suspect committed a felony, or must observe the suspect commit a crime. Shuler apparently argued at trial that the arresting officer didn't have a warrant and didn't observe any crime, and that therefore the arrest was not lawful and Shuler could not have committed the crime of resisting arrest. . . . Regrettably the news coverage of the brief bench trial doesn't clarify how the prosecution proved (if it did) that the arrest was lawful in the first place.

Popehat wrote four posts about my incarceration, and while I take issue with some of his statements, his analysis of the law is on target--both on the First Amendment and, as here, on the Fourth Amendment.

Below is the Motion to Quash Service that my wife and I filed in the Riley/Duke case. It is not time stamped because we filed it on a Wednesday, the day the clerk's office is closed in Shelby County. But it was timely and properly filed, shifting the burden of proving lawful service to the plaintiffs, which they never did because no hearing was held on the subject. In fact, I was awaiting notice of such a hearing when I was arrested on October 23, 2013.

Rob Riley Lawsuit--Quash Service by Roger Shuler