In the meantime, people should be aware that they do not have the right to resist detention by officers, he said. Although Virginia has a law allowing citizens to resist unlawful arrest, the state Supreme Court has ruled this right does not extend to unlawful detention.
The 2002 ruling in Commonwealth v. Hill asserts that the distinction is important because a detention only temporarily restricts a person’s freedom, as opposed to an arrest that can result in a conviction and restrict freedom for an extended period of time.
“The commonwealth contends that a rule permitting a detainee to resist an illegal detention would escalate the danger of violence to law enforcement officers engaged in the reasonable performance of their duties,” reads the ruling.
Hey!! I've been referring to this case by the wrong name for a few
years.
Thanks for clearing that up.
Here's a link for anybody who wants to read it (don't blame me if you lose your cookies).
http://valawyersweekly.com/fulltext-opinions/2002/11/01/commonwealth-v-hill-3/
The really disgusting part, in my mind, is the court erases your right to resist illegal arrest in certain circumstances. Here's how. Its very simple. If you're handcuffed "for officer safety" during an illegal detention, you can't possibly resist if it escalates to an illegal arrest.
So, a cop moves in to cuff you, stating its for "officer safety". Then, after you're cuffed, he announces you're under arrest (assuming he gives you the courtesy of announcing it).
You have no way to know unless the officer deigns to be honest about what he's up to.
The seeds for this were planted years ago in Terry vs Ohio. In that case, the power of police to temporarily detain a suspect, and pat him down for weapons, was invented by the US Supreme Court out of thin air. The crucial element for this discussion is that SCOTUS, in the last paragraph of that case, makes it clear that determining the legality of the detention is up to the courts. And, since the courts only get involve later, that means the legality of the detention is determined only
after the detention occurs.
But, here's the worst part. Lets go back a couple years to that fella in (Indiana?) who threw a cop out of his house for attempting entry without a warrant. The state appeals court or legislature tried changing the law to say it was illegal to resist a warrantless entry. On the surface, it doesn't sound terrible. But, it destroys the very foundation of government in this country. In so many words, it makes the individual subservient to government, rather than the other way around. Think about it. The only way an individual can be compelled to submit to government
even when government is wrong is if the government is greater than the people. It turns delegated powers on its head. Under the current theory, government gets its power from the people when the people delegate some of their powers to government. Meaning, government is supposed to be the servant, not the master. Requiring people to submit to government even when government is wrong necessarily means government is acting without a delegated power. And the only way that can work is to say the people are servants of government, not the other way around.
Commonwealth vs Hill moves quite a bit in that direction. The court pretends you have a remedy in court; yet, we all know police receive a lot of credibility in the courts, and we all know, or can find out easily enough, how the courts fail to support rights. So, while the court in
Commonwealth v Hill pretends you have a remedy in court, its a false implication. That case says in so many words that you are subservient to government. It doesn't go as far as the (Indiana?) situation, but its there. In VA, when it comes to an illegal detention, you are the servant, not the master. And, if you want to be vindicated, you better have so many facts and so much proof on your side the court can't find a way to minimize or ignore it without looking like monkeys.