:Self defense was a common law right :even agaisnt police officers
I suggest you check your local laws. Most states (with the exception
of Texas, I believe) make it illegal to try to defend yourself
against a police officer.
I agree that some states have changed the common law rule
However It still is the law of Maryland
Reading these cases shows how the common law works.
And why judges are not umpires enforcing a rule book
This is Judical lawmaking in the common law tradition
Maryland case
Right to Resist an Illegal Arrest
Chief Judge Murphy, in his dissent, makes a suggestion that merits
serious consideration. This Court recognized in Sugarman v. State, 173
Md. 52, 57, 195 A. 324 (1937), the long-standing common law rule that
"one illegally arrested may use any reasonable means to effect his
escape, even to the extent of using such force as is reasonably
necessary…..Petitioner comes now before this Court and asks us to
abolish the long-standing rule that permits a person to resist an
unlawful arrest in most circumstances, the position suggested by Chief
Judge Murphy's dissent below. In its brief, the State argues after
discussing the abrogation of the privilege in other jurisdictions and
the limitations imposed by this Court….
Respondent, on the other hand, contends that "any action to abrogate the
common law right to resist an illegal warrantless arrest should be made
by the Legislature."
Under the principle of stare decisis, "for reasons of certainty and
stability, changes in decisional doctrine ordinarily should be left to
the Legislature." …..Nonetheless, stare decisis does not preclude this
Court from changing a common law rule where, "in light of changed
conditions or increased knowledge, . . . the rule has become unsound in
the circumstances of modern life, a vestige of the past, no longer
suitable to our people."
This Court has recognized that in determining whether a long-standing
common law rule now conflicts with modern policy, the declaration of
public policy normally is the function of the Legislature. In that same
vein, we have said that the Legislature's failure to change a common
law rule is reflective of this state's public policy. …
Upon deliberating whether to change judicially the common law, we first
must consider whether the existing rule, here the right of a person
illegally arrested to resist such arrest, "is 'unsound in the
circumstances of modern life, a vestige of the past, no longer suitable
to our people,), when ordinarily such a determination is made by the
legislature. This consideration must be made by analyzing "the public
policy concerns raised by the parties and by the other courts which have
grappled with this issue."
Petitioner essentially argues the right to resist an unlawful arrest
should be abrogated on public policy grounds because it promotes violent
interactions between peace officers and the public, few people actually
are aware of or are able to contemplate use of the rule during the heat
of an arrest situation, and the rule endangers the safety and lives of
officers and arrestees. Petitioner also cites to the various cases and
legislative enactments of our sister states that already have abolished
the common law rule. Respondent does not counter petitioner's policy
arguments other than to assert that most of the states that have
abolished the right to resist have done so legislatively, and that the
Legislature is the proper entity to abrogate the common law rule,
particularly given our discussion of some of the negative aspects of
this rule in Rodgers and the Legislature's failure thereafter to make
any changes responsive to our concerns.
We believe the points raised by petitioner have merit. We cannot say,
however, that the right to resist is unsound or unsuitable to a modern
society. Were we to abrogate the common law rule, the only remaining
remedies for an unlawful arrest would be release followed by a civil or
criminal action, such as an action for false imprisonment. We have said
that such remedies often may be inadequate.
Furthermore, the Legislature is presumed to be cognizant of the holdings
of our cases, including Rodgers, which was decided over twenty years
ago. Even though we have criticized several aspects and outcomes of
the application of the right to resist, the Legislature has failed to
respond to this criticism as it has yet to alter or abolish the common
law privilege in spite of the period of time this issue has been
discussed in our cases. This position of deference to the Legislature,
where appropriate, is consistent with many of our cases….. (declining to
judicially alter doctrine of contributory negligence in favor of
comparative negligence because the Court was "unable to say that the
circumstances of modern life have so changed as to render contributory
negligence as vestige of the past" and is instead a "fundamental and
basic policy consideration[] properly to be addressed by the legislature
In our opinion in Kelley, however, we were able to perceive from State
Legislative and Congressional enactments a public policy and relied on
that legislative policy in our recognition of a cause of action in
strict liability for the manufacturer of those particular weapons. The
parties in this case have pointed us to no similar legislative
pronouncements with respect to the matter of the abolishment of the
right to resist an unlawful arrest. Further, as we have indicated, of
those states that have abolished the right to resist an illegal arrest,
the majority have done so by legislative enactment.
STATE OF MARYLAND v. KEVIN JOSEPH WIEGMANN
No. 13, September Term, 1998
COURT OF APPEALS OF MARYLAND
350 Md. 585; 714 A.2d 841; 1998 Md. LEXIS 581
The Wiegman case was cited as good law as late as 2004
Just thought this was interesting enough to follow up on
Another Maryland case gave a history of self defense
It is an excellent resume of the common law in action and development
ROOSEVELT PRESTON SYDNOR v. STATE OF MARYLAND
No. 83, September Term, 2000
COURT OF APPEALS OF MARYLAND
365 Md. 205; 776 A.2d 669; 2001 Md. LEXIS 462
The right to act in self-defense has been regarded as a natural right,
taken all but for granted, but, as a legal defense to a charge of
homicide, it was not part of early English common law. Although much of
its development is of historical interest only, the theoretical
underpinnings of that development still have some influence. As noted by
Joseph Beale, from the beginning of the jurisdiction of the king's
courts over crime to the reign of Edward I in the Thirteenth Century,
homicide could be justified only when committed in execution of the
king's writ or, by custom, when apprehending an outlaw who resisted.
Joseph H. Beale, Jr., Retreat from a Murderous Assault, 16 HARV. L. REV.
567, 567-68 (1903).
The privilege to use deadly force in self-defense developed from two
strains of English law. Blackstone, citing both Hawkins and Hale,
observed that there were three kinds of homicide -- justifiable,
excusable, and felonious. WILLIAM BLACKSTONE, 4 COMMENTARIES ON THE LAWS
OF ENGLAND 177 (1769). Justifiable homicide was one "owing to some
unavoidable necessity, without any will, intention, or desire, and
without any inadvertence or negligence, in the party killing, and
therefore without any shadow of blame." Id. at 178. It was a homicide
committed by the absolute command of the law, either for the advancement
of public justice (as where a public officer kills in the execution of
his or her office) or for the prevention of some atrocious crime which
could not otherwise be avoided. Id. at 179-80. As to the latter,
Blackstone noted, as an example, that "if any person attempts a robbery
or murder of another, or attempts to break open a house in the night
time, (which extends also to an attempt to burn it,) and shall be killed
in such attempt, the slayer shall be acquitted and discharged." Id. at
180. "This reaches," he continued, "not to any crime unaccompanied with
force, as picking of pockets; or to the breaking open of any house in
the day time, unless it carries with it an attempt of robbery also." Id.
In the case of a justifiable homicide, Blackstone stated, the slayer was
entirely without fault and was entitled to acquittal. No duty to
retreat, in an effort to avoid the need to use deadly force, attended a
justifiable homicide.
An excusable homicide, according to Blackstone, could be of two types --
per infortunium, or misadventure, and se defendendo, or self-defense.
The first was where one doing a lawful act, without any intention to
harm, unfortunately killed another, as where the head of a hatchet being
lawfully used by a person flew off and killed a bystander. The second
type, he made clear, was distinguishable from the justifiable variety of
homicide "calculated to hinder the perpetration of a capital crime" and
concerned the case of a person protecting himself or herself "from an
assault, or the like, in the course of a sudden brawl or quarrel, by
killing him who assaults him." Id. at 183-84. In that situation, which
the writers of the time called chance-medley, the right of natural
defense did not include attacking the assailant, and, to excuse
homicide by a plea of self-defense, "it must appear that the slayer had
no other possible means of escaping from his assailant." Id. at 184.
Thus, "the law requires, that the person, who kills another in his own
defence, should have retreated as far as he conveniently or safely can,
to avoid the violence of the assault, before he turns upon his assailant
. . . ." Id. at 184-85.
.....To that practical extent, the two forms of defense -- justifiable
and excusable homicide -- merged; they did not merge, however, with
respect [***12] to the duty to retreat in an effort to avoid the need
for deadly force. That issue, initially germane only with respect to
what formerly was an excusable homicide, remained a focal point of
debate and, to some extent, remains so today.
The views expressed by Blackstone are consistent with those stated by
East, Hawkins, Hale, and Foster. See EAST, supra, 219-22; WILLIAM
HAWKINS, 1 PLEAS OF THE CROWN 79-88 (John Curwood ed., 8th ed. 1824);
MATTHEW HALE, 1 HISTORY OF THE PLEAS OF THE CROWN 478-92 (1847); FOSTER,
supra, 273-78. Thus, Foster wrote:
"In the case of justifiable self-defence the injured party may repel
force by force in defence of his person, habitation, or property,
against one who manifestly intendeth and endeavoureth by violence or
surprize to commit a known felony upon either. In these cases he is not
obliged to retreat, but may pursue his adversary till he findeth himself
out of danger, and if in a conflict between them he happeneth to kill,
such killing is justifiable."
FOSTER, supra, at 273 (emphasis added). On the other hand:
"He therefore who, in the case of mutual conflict, would excuse himself
upon the foot of self-defence must shew, that before a mortal stroke
given he had declined any farther combat and retreated as far as he
could with safety; and also that he killed his adversary through mere
necessity, and to avoid immediate death. If he faileth in either of
these circumstances he will incur the penalties of manslaughter."
Id. at 277.
As Wharton noted, when these two rules were construed with relation to
each other, the duty of an assaulted person to retreat seemed to depend
on whether killing the assailant under the circumstances would be
justifiable or merely excusable. If the former, there was no duty to
retreat; if the latter, there was. FRANCIS WHARTON, THE LAW OF HOMICIDE,
§ 291 (Frank H. Bowlby ed., 3d ed. 1907). Beale took issue with that
approach. Though acknowledging that the line between the authority to
stand one's ground and the duty to retreat to avoid the necessity of
killing was consistent with the distinction in the old law between
justifiable and excusable homicides -- between homicides committed in
execution of the law and those committed in private defense -- Beale
asserted that Foster failed, in the case of an excusable homicide, to
distinguish between the function of retreat as a means of avoiding the
need to kill, and its function to avoid responsibility for the combat,
and that, in effect, he blurred the distinctions between justifiable and
excusable homicides. Beale, supra, at 575-76.
Noting a split of authority in the United States on whether, generally,
a person under attack by another may stand his ground and resist with
deadly force or must retreat if retreat is possible, Beale took as the
prevailing rule that "there is no need of retreat, but the assailed may
kill the assailant if it is otherwise necessary to save his own life,"
that "if retreat would not (so far as the assailant can see) diminish
the danger, he may defend himself on the spot," and that "if one is
assailed in his own dwelling-house, which is his castle, he is not
obliged to withdraw therefrom and leave himself in that respect
defenseless." Id. at 579. He urged, however, that no killing that is not
necessary can be justified, that it is not necessary to kill in
self-defense when the person under attack can defend himself/herself by
withdrawing, and that "the only property which the law permits him to
protect by killing a wrongdoer is his dwelling-house, and that only when
its protection is necessary to the safety of his person." Id. at 580-81.
Perkins and Boyce, writing in 1982, favored Foster's view, rather than
that of Beale. They regarded the majority American view to be that a
blameless person who is the subject of a "murderous assault" may stand
his or her ground and use deadly force if reasonably necessary to save
himself/herself. They acknowledged, however, that a substantial minority
of jurisdictions had adopted the view that even an innocent victim of a
murderous assault must elect an obviously safe retreat, if available,
rather than resort to deadly force, unless (1) the victim is in his/her
home at the time, (2) the assailant is one he/she is lawfully attempting
to arrest, or (3) the assailant is a robber. See ROLLIN PERKINS AND
RONALD BOYCE, CRIMINAL LAW 1119-37 (3d ed. 1982). See also Self-Help:
Extrajudicial Rights, Privileges and Remedies in Contemporary American
Society, 37 Vand. L. Rev. 845, 882-83 (1984) (noting the split of
authority on whether deadly force may be used without safe retreat but
asserting that "because a successful retreat prevents harm to both
aggressors and defenders, a duty to retreat before [***16] the use of
deadly force seems to be a desirable limitation on the privilege of
self-defense").
The initial distinctions, trumpeted in some of the early commentary and
applied in some 19th Century cases, have, indeed, become blurred, and
the law now, governed in many States by statute, seems inclined to limit
one's ability to use deadly force to the situation where such force is
reasonably necessary to protect oneself from imminent threat of death or
serious injury. n2 The duty to retreat, other than from one's own home,
if retreat is safely possible, is a consideration, though a critical
one, in determining the necessity for using deadly force, as is the
prospect of standing one's ground and resisting with non-deadly force.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 Approximately 35 States have statutes that define the circumstances
when deadly force is permissible. Only one, in Texas, comes close to
allowing the victim of a robbery to use deadly force against the fleeing
robber for the purpose of recovering the stolen property, absent a
continuing imminent danger from the robber of death or serious bodily
harm. See TEX. PENAL CODE ANN. § 9.42.
Thats how the common law works.
They are not umpires enforcing a rule book
Vince