Bad Elk v. United States

Bad Elk v. United States, 177 U.S. 529 (1900), was a United States Supreme Court case in which the Court held that an individual had the right to use force to resist an unlawful arrest and was entitled to a jury instruction to that effect. In 1899, a tribal police officer, John Bad Elk, shot and killed another tribal police officer who was attempting to arrest Bad Elk without a warrant, on a misdemeanor charge, for a crime allegedly committed outside of the presence of the arresting officer. The Supreme Court reversed his conviction, noting that a person had the right to resist an unlawful arrest, and in the case of a death, murder may be reduced to manslaughter. The Supreme Court held the arrest to be unlawful due, in part, to the lack of a valid warrant. This case has been widely cited on the internet, but is no longer considered good law in a growing number of jurisdictions. Most states have, either by statute or by case law, removed the unlawful arrest defense for resisting arrest. The English common law has long recognized the right of an individual to resist with reasonable force an attempt of a police officer to make an unlawful arrest. This offered a complete defense if nonlethal force was used, and would reduce a murder charge to manslaughter if a death ensued. In Hopkin Huggett's case, English officials illegally seized a man to serve in the King's army. Huggett and others observed this and fought to free the man. In the course of the fight one of the King's men, John Barry, was killed and Huggett was put on trial for murder. The English court ruled that since the officer was making an unlawful arrest, the most that could be charged was manslaughter. In 1709, in Queen v. Tooley, the English court again found that when resisting an unlawful arrest, the death of an individual would result in a manslaughter charge instead of a murder charge. When the United States separated from England, the common law was adopted by the new American courts and the right to resist unlawful arrest was clearly recognized.