William Norman Grigg, writing for Information Liberation, has written a useful essay, titled “When the Right to Resist Becomes the ‘Duty to Submit.” He quotes Paul Chevigny’s words from a 1969 Yale Law Journal essay: “The right to resist unlawful arrest memorializes one of the principal elements in the heritage of the English revolution: the belief that the will to resist arbitrary authority in a reasonable way is valuable and ought not to be suppressed by the criminal law.” And so this must be true of the American revolution (if we may be allowed to call it that).
“The weight of authoritative precedent supports a right to repel an unlawful arrest with force,” according to the Alaska State Supreme Court in Terry Glenn Miller v State of Alaska. “This was the rule at common law.” The rule is “based on the proposition that everyone should be privileged to use reasonable force to prevent an unlawful invasion of his physical integrity and personal liberty.” Read the article to see how the court wormed its way back into a justification of unlawful police coercion. In this blog, I want to make some points about police powers and the sovereignty of the people who employ them.
There is a fundamental distinction to be drawn between power and authority. Power is ability to make people act in ways contrary to their will. Authority is legitimate power. In a monarchy, legitimacy comes from the divine right of kings. In a totalitarian state, legitimacy comes from the dictator and his cult of personality. In a free society, legitimacy flows from the consent of the governed who, through common law and democratic deliberation, express a willingness to submit to that authority when it accords with the law and meets their fundamental needs, which includes the preservation of their rights.
No upright citizen in a free society voluntarily gives up those rights or agrees to act in a manner contrary to the law. They are either forced to do so or they are confused about their rights, both conditions that indicate that society is become more or less unfree. It follows that, in a free society, every citizen has a right to resist an unlawful or wrongful order (just as we have the right to violate unjust rules and laws). Self defense, defense of the innocent, and resistance to and overthrow of tyranny and oppression are fundamental and nonnegotiable rights in a free society.
You do not have any legal or moral obligation to follow the commands of a police officer if you have done nothing wrong or if he is commanding you to do something wrong. Any state that would criminalize resistance—even violent resistance, to which every human being has a right—to an unlawful order is by definition a tyrannical state. The only reason to obey a police officer’s unlawful order is for personal safety and then only if following that order does not jeopardize the personal safety of others. However, it must be emphasized that obeying an unlawful order for personal safety is a personal choice, never an obligation. It may be prudent, but it is not obligatory.
Moreover, every citizen has the right to aid any other citizen who is being unlawfully detained and, especially, assaulted by the police. Indeed, citizens, if able, have an obligation to physically intervene in the case of an assault. If you are in a group of persons of sufficient number or if you are armed and you see a police officer assaulting another person, you are within the law to stop that assault—yes, even if it means using deadly force.
Americans must, if we are to be free, understand the meaning of this and start acting in a manner that asserts our rights. We are the law. The police work for us. We pay their salary. They are our servants. Their duty is to protect and serve the community, not detain, harass, and assault its members without cause. We cannot harass an officer who is harassing us. This is resistance, and resistance is not harassment. We cannot assault an officer who is assaulting us. Self-defense is not assault. A badge doesn’t give a police officer the right to go wherever he pleases or do whatever he wants.
The police need to acquire a healthy fear of the public so that they can have confidence in their actions only when those actions are in accordance with the law. The police need to work for and with us, not against us. To be sure, we have a long way to go to reign in the police state. Laws and prostitution and drugs and other so-called “public order crimes” need repealing. Such laws as disturbing the peace, disorderly conduct, and harassing a public servant must never be used as tactics to control populations, especially when those laws amount to contempt of cop charges. We should forbid deception and lying by the police and prosecutors. Entrapment should be disallowed.
There should be no felony associated with touching a police officer or breathing on an officer. If police officers don’t want to be touched or breathed upon, then they shouldn’t get in the faces of citizens. If a police officer puts his hands on you and he has no reason to, it cannot be a felony when you physically resist what is by definition assault. The very notion that citizens do not have a right to resist physical force when it is wrongful is the essence of tyranny.
To win back our freedoms—and more fully realize them, since we have never truly been optimally free and cannot be so in the current epoch—we need to critically examine ourselves. I have watched too many videos of police perpetrating wrongful acts—unlawful detention, arrest, assault—with scores of people standing around not doing anything about it.
Why did the crowd stand by while Andrew Meyer was being unlawfully arrested for asking John Kerry uncomfortable questions at an event at the University of Florida? They watched—only a few verbally protested—while he was being tortured in front of them, repeatedly dry tased. Many in the audience shamefully applauded the police action.
Recently I showed a clip of a naked man at an outdoor concert being violently assaulted by the police, repeatedly tased for refusing to put on his clothes. A human being was tortured in front a crowd hundreds strong merely because he wanted to wear the suit he was born with. Some in the crowd cried “shame,” but no one in the crowd acted to stop it. Why?
I recently posted a video of men and women being violently arrested at the Jefferson Memorial for the crime of “dancing.” This occurred in front of a number of witnesses. None of the bystanders organized a group to intervene and stop the police. How come?
Michael Foucault, in the preface to Gilles Deleuze’s Anti-Oedipus, suggests that Deleuze’s book might be otherwise titled “Introduction to the Non-Fascist Life.” Foucault condemns “the fascism in us all, in our heads and in our everyday behavior, the fascism that causes us to love power, to desire the very thing that dominates and exploit us.”
We sure do love power in America, don’t we? We heroize the police and the soldier. Even while they are off protecting the imperial interests of the transnational corporation, we thank them for defending our freedoms. Our freedoms? We see the capitalist exploiter as virtuous—just as the slave society sees the plantation owner as noble.
Psychologically locked into the hierarchical mentality of class, gender, and race. we are alienated from our own power—the power to make history and the law. We think that it is only natural that the law comes from the state and that the state decides what is lawful. We have come to see the republic as previous generations saw the monarchy. But in a free and democratic society, the law comes from the people. We decide what is lawful.
Here is exposed the fundamental problem of our epoch: in a capitalist society, the state is not legitimate because it does cannot represent us. It is an instrument of the ruling class—the capitalist class—and that class wields the state and law as a weapon to oppress our right, the right to determine history for our needs.
Walter Benjamin, in his essay, “Art in the Age of Mechanical Reproduction,” puts the matter superbly: “The growing proletarianization of modern man and the increasing formation of masses are two aspects of the same process. Fascism attempts to organize the newly created proletarian masses without affecting the property structure which the masses strive to eliminate. Fascism sees its salvation in giving these masses not their right, but instead a chance to express themselves. The masses have a right to change property relations; Fascism seeks to give them an expression while preserving property.”
Liberal capitalism can give way to fascism because the inequality generated by exploitation destabilizes liberal legal and intellectual structures. These are ultimately incapable of legitimating the oppressive rule of the capitalist class. Class society is not a free society and eventually enough people come to realize this and demand something different.
Consent breaks down because the people understand the problem and withdraw their consent. Then the torn velvet glove of consensual control comes off and the iron fist of coercive force comes out. Hence the police violence perpetrated on the Occupy Wall Street protesters. At this point it is no longer authority—it has lost its legitimacy—but naked, bare-fisted power.
Benjamin understands the moment perfectly. “All efforts to render politics aesthetic culminate in one thing: war. War and war only can set a goal for mass movements on the largest scale while respecting the traditional property system. This is the political formula for the situation. The technological formula may be stated as follows: Only war makes it possible to mobilize all of today’s technical resources while maintaining the property system.”
So we have our wars: the war on communism, the war on terrorism, the war on drugs, the war on poverty. We have our carceral controls, our gulags—2.4 million strong—and more than eight million with criminal labels under some form of correctional control, with millions more stigmatized, hundreds of thousands disenfranchised. We have our therapeutic controls (remember, if you aren’t criminal, then you’re crazy).
And in our wars and control systems (their wars, their control systems), the police and the soldiers and the doctors must be our heroes. Speak no ill of them! They protect us from danger and disease! No, they protect the ruling class from the dangerous classes—you and me, the working people and the poor and the movements against capitalism and imperialism.