State v. Valentine

935 P.2d 1294, 132 Wash. 2d 1, 1997 Wash. LEXIS 236

• Court: Washington Supreme Court
• Decided: May 1, 1997
• Docket: No. 62274-4
• Status: Published

Opinions

Alexander J.

Ronald Valentine obtained review of a decision of the Court of Appeals, Division Three, affirming his conviction on a charge of third degree assault, a charge that was based on an allegation that Valentine assaulted a law enforcement officer while the officer was engaged in performance of his official duties. Valentine contends on appeal that the trial court erred in instructing the jury that "[t]he use of force to prevent an unlawful arrest which threatens only a loss of freedom ... is not reasonable.” Instruction 17, Clerk’s Papers at 71.¹ He also contends that this court should overturn his conviction and dismiss the assault charge for what he claims was outrageous conduct of the Spokane police, which violated his right to due process of law. We reject both contentions and, therefore, affirm.

In the early afternoon of May 16, 1990, in downtown Spokane, Spokane Police Officer Rick Robinson observed what he believed was a "suspicious subject on the corner at First and Jefferson.” Verbatim Report of Proceedings (VRP) at 88. Upon making this observation, Robinson radioed another Spokane police officer, John Moore, and asked him if he knew the person standing at First and Jefferson "wearing a black coat.” VRP at 28. Moore proceeded to that location and observed a person wearing a black jacket enter a car. Although Moore was unable to immediately identify that person, he followed the car as the person drove it away.

According to Moore, the car soon made a turn without signaling. Moore, who was driving an unmarked car, advised Robinson over his radio that he was going to stop the car. He then attempted to do so by placing a rotating blue light on his dashboard, flashing his headlights, and honking his horn. While attempting to stop the automobile, Moore recognized that the driver of the car he was following was Ronald Valentine.² Moore broadcast over his police radio that he was following Valentine and that Valentine was not heeding Moore’s efforts to stop him. Shortly thereafter, Valentine stopped his automobile and Moore pulled his car in behind him. Officer Robinson also pulled in behind Moore as did several other officers who had overheard the radio broadcasts.

All of the police officers who arrived at the scene testified at trial. Their version of the events that transpired after the traffic stop varied dramatically from Valentine’s version of events. Moore said that upon confronting Valentine he asked to see his license and registration. This, he indicated, prompted Valentine to ask, "Why?” VRP at 37. Moore said that he then told Valentine that he was being cited for failing to signal for a turn. According to Moore, Valentine said that since Moore had given him a ticket a few days earlier, he had all the information that he needed. Moore said that he again asked for the driver’s license and registration and Valentine responded by saying that "you . . . cops are just harassing me. I’m Black, and I’m tired of the harassment.” VRP at 38. After what Moore said was his third request of Valentine to produce his driver’s license and registration, Valentine produced it.

Moore testified that he asked Valentine for his current address and that Valentine told Moore to "[l]ook it up.” VRP at 41. Moore then asked Valentine if he was going to cooperate and sign a citation and, according to Moore, Valentine said that he would not do so. Moore then informed Valentine that he was being placed under "arrest for failure to cooperate .... [and] refusing to sign an infraction.” VRP at 45.

Moore also testified that after Valentine walked to the front of the car to show Moore that the car Valentine had been driving had a front license plate, Valentine returned to his car door, opened it, and started to reach inside the car. Moore said that he told Valentine to stay out of the car and grabbed Valentine’s left arm to prevent him from reaching into the car. Robinson also claimed that he grabbed Valentine’s right arm in a similar effort to keep Valentine from entering his car. Valentine, according to Moore, responded to their actions by spinning toward Moore and punching him in the side of the head. Robinson also claimed that he was hit in the ensuing skirmish.

Spokane Police Officers Jones, Webb, and Yates all testified that they joined the scuffle when Valentine began to struggle with Moore and Robinson. They said that they eventually subdued Valentine and forced him to the ground. Yates, who indicated that he had decided to assist Moore in effecting the traffic stop when he heard over the radio that it was Valentine who was being pursued,³ testified that when he became involved in the fracas, he felt Valentine’s hand on his gun butt. He said that in order to subdue Valentine, he had to apply a "carotid hold”⁴ to Valentine’s neck.

Valentine was eventually placed in handcuffs and was transported to jail. A nurse supervisor at the jail refused to admit Valentine because of his apparent injuries. Valentine was then taken to a hospital where Moore presented him with a citation for failing to signal for a turn. Valentine signed the citation. Valentine was later booked into the Spokane County Jail where he was charged by information with two counts of third degree assault, it being alleged that he assaulted Moore and Robinson while they were performing "official duties.” Clerk’s Papers at 1.

Valentine testified at trial on his own behalf. He claimed that because his turn signals were not functioning, he used hand signals to indicate his intention to turn. He also said that he stopped his car as soon as it was possible for him to do so. Valentine indicated that before reaching inside his car, he told Moore he was going to lock his car in order to protect some personal items. He denied that he told Moore to look up his address for himself. He also said that he did not throw the first punch, asserting that any blows he delivered were in self-defense and amounted to reasonable force to protect himself from an illegal arrest. Valentine contended that he would have signed a citation on the scene if he had been presented with one. Valentine was found guilty of assaulting Moore and not guilty of assaulting Robinson.

I

Valentine asks us to decide whether the trial court erred in instructing the jury regarding the employment of force to resist an unlawful arrest. Instruction 17 reads as follows:

A person unlawfully arrested by an officer may resist the arrest; the means used to resist an unlawful arrest must be reasonable and proportioned to the injury attempted upon the party sought to be arrested. The use of force to prevent an unlawful arrest which threatens only a loss of freedom, if you so find, is not reasonable.

Clerk’s Papers at 71 (emphasis added).

Valentine claims that the instruction is faulty insofar as it informs the jury that a person may not use force to resist an unlawful arrest which threatens only a loss of freedom. He asserts that it is the law in this state that reasonable and proportional force may always be employed to resist an unlawful arrest. Valentine bases his argument to a large extent on this court’s opinion in State v. Rousseau, 40 Wn.2d 92, 241 P.2d 447 (1952). There, a person who was being unlawfully arrested used what this court described to be the equivalent of a "deadly weapon” when he pushed a police officer who was in the act of arresting him into the path of an oncoming automobile. In concluding that the jury could have found that the defendant used unnecessary force in resisting his arrest, we said "[i]t is the law that a person illegally arrested by an officer may resist that arrest,” and suggested further that force could be employed in doing so, but not with "extreme measures” if only a loss of liberty is threatened. Rousseau, 40 Wn.2d at 94.

At the outset, we note that it is unnecessary for us to decide the validity of instruction 17 as it might affect Valentine’s trial. That is so because the claimed error of law in the instruction makes a difference if and only if the arrest of Valentine was unlawful. Significantly, Valentine has never claimed that his arrest was unlawful, either in the trial court or the Court of Appeals. Valentine’s trial theory, rather, was that the Spokane police officers assaulted him during the course of the arrest and that he was merely defending himself against that assault. Consequently, neither the trial judge nor the jury was asked to decide if Valentine’s arrest was unlawful. The question of whether instruction 17 improperly skewed the result of the jury verdict does not, therefore, arise, because in the absence of an unlawful arrest, there can be no issue as to whether one can use force to resist an unlawful arrest. Thus, it was not necessary for this court to accept review of this case in order to answer the question of whether it is lawful in Washington to use reasonably proportioned force to resist an unlawful arrest.

Nevertheless, both parties have placed that issue sharply in focus both in their briefing and at oral argument, which consisted largely of discussion of this very issue. In our review of the law, beginning with Rousseau, we have discovered that cases from our court and from the Court of Appeals have created confusion as to whether one who is illegally arrested may resist the arrest when the arresting officer’s acts threaten only a loss of liberty. For example, although the Court of Appeals has cited Rousseau for the proposition that a defendant was justified in resisting an unlawful arrest, State v. Schulze, 51 Wn.2d 878, 883, 322 P.2d 839 (1958), the Court of Appeals, two decades after Rousseau, stated the rule: "In State v. Rousseau, 40 Wn.2d 92, 241 P.2d 447 (1952), it was held that one may not resist with deadly force an unlawful arrest which merely threatens to deprive him of his liberty and not to do great bodily harm.” State v. Madry, 12 Wn. App. 178, 181, 529 P.2d 463 (1974), review denied, 85 Wn.2d 1004 (1975). In State v. Westlund, 13 Wn. App. 460, 536 P.2d 20, 77 A.L.R.3d 270, review denied, 85 Wn.2d 1014 (1975), the confusion was furthered when, after stating the Rousseau rule as "one may resist an unlawful arrest by an amount of force reasonable and in proportion to the injury the arrestee faces,” the Court of Appeals said, "the arrestee’s right to freedom from arrest without excessive force that falls short of causing serious physical injury or death can be protected and vindicated through legal processes, whereas loss of life or serious physical injury cannot be repaired in the courtroom.” Westlund, 13 Wn. App. at 465, 467. The latter statement apparently led the Court of Appeals in State v. Goree, 36 Wn. App. 205, 209, 673 P.2d 194 (1983), review denied, 101 Wn.2d 1003 (1984), to say "[t]he use of force to prevent even an unlawful arrest which threatens only a loss of freedom is not reasonable.” Indeed, the status of Washington’s law on this subject was even confusing to courts in other jurisdictions. See Glover v. State, 88 Md. App. 393, 594 A.2d 1224, 1231 n.5 (1991) (listing Washington as one of the states to have abrogated the common-law rule allowing resistance to unlawful arrests, and citing Westlund as authority).

Unfortunately, this court has not alleviated the confusion in this area. In State v. Hornaday, 105 Wn.2d 120, 131, 713 P.2d 71 (1986), we said the following in the same paragraph: "A person illegally arrested by an officer may resist the arrest; the means used to resist an unlawful arrest must be reasonable and proportioned to the injury attempted upon the party sought to be arrested. 'The use of force to prevent even an unlawful arrest which threatens only a loss of freedom is not reasonable.’ ” Hornaday, 105 Wn.2d at 131 (quoting Goree, 36 Wn. App. at 209) (citations omitted). Because any arrest, lawful or unlawful, threatens at least a loss of freedom, the second sentence appears to be incompatible and inconsistent with the first.

In a similar vein, counsel for Valentine suggested at oral argument that our recent decision in State v. Mierz, 127 Wn.2d 460, 476, 901 P.2d 286 (1995), overruled Rousseau sub silentio. In Mierz, a unanimous decision, we said, citing Hornaday. "An arrestee charged with assault upon a law enforcement officer must show that there was an imminent threat of serious physical harm in connection with an unlawful arrest in order to establish legitimate use of force in self-defense.”⁵ Mierz, 127 Wn.2d at 476.

As a result of this confusion in our law, we depart from our usual practice of not ruling on issues unless it is necessary to resolve a case, and proceed with reconsideration of the proposition we advanced in Rousseau, namely, that it is not unlawful to use reasonably proportioned force to resist any illegal arrest.

In Rousseau, a 1952 case, we recited the common-law rule prevalent in most jurisdictions at the time: "It is the law that a person illegally arrested by an officer may resist that arrest, even to the extent of the taking of life if his own life or any great bodily harm is threatened.” Rousseau, 40 Wn.2d at 94 (citing John Bad Elk v. United States, 177 U.S. 529, 20 S. Ct. 729, 44 L. Ed. 874 (1900), and State v. Gum, 68 W. Va. 105, 69 S.E. 463 (1910)).

Gum, in turn, relied heavily on cases from Iowa, State v. Row, 81 Iowa 138, 46 N.W. 872 (1890); California, People v. Denby, 108 Cal. 54, 40 P. 1051 (1895); and Florida, Roberson v. State, 43 Fla. 156, 29 So. 535 (1901). Gum, in fact, quoted from the Florida case the language we adopted in Rousseau. Gum, 68 W. Va. at 112. Although the law regarding this issue has not changed in West Virginia since 1910, the West Virginia Supreme Court has had occasion to address it only once since then, nearly half a century ago in State v. McCauley, 130 W. Va. 401, 43 S.E.2d 454 (1947). By contrast, the law in the three states on which Gum most relied — Iowa, California, and Florida — has changed. It is now illegal in each of those states to resist even an unlawful arrest.⁶

Likewise, Rousseau also relied on State v. Robinson, 145 Me. 77, 72 A.2d 260 (1950), for the proposition that an illegal arrest is an assault and battery, thereby justifying the use of force to resist. Rousseau, 40 Wn.2d at 95. The Robinson court said "[a]n illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right, and only the same right, to use force in defending himself as he would have in repelling any other assault and battery.” Robinson, 72 A.2d at 262. The Supreme Judicial Court of Maine set Robinson aside in 1978, however, holding "Robinson no longer states the law of Maine.” State v. Austin, 381 A.2d 652, 653 (Me. 1978). Construing as a whole several sections of Maine’s penal code, the court concluded, "The legislature has thus cast the advantage on the side of law enforcement officers, leaving the person arrested in most cases to pursue his rights, not through violent self-help, but through prompt hearing before a magistrate with prompt consideration for release on bail or personal recognizance.” Austin, 381 A.2d at 655 (footnote omitted).

Thus, the theoretical footings on which we based our decision in Rousseau have eroded with the passage of time. It is therefore meet and fitting that we reconsider now the bases for our decision in Rousseau. Reconsidering cases such as Rousseau "enables the law under stare decisis to grow and change to meet the ever-changing needs of an ever-changing society and yet, at once, to preserve the very society which gives it shape.” State ex rel. Washington State Fin. Comm. v. Martin, 62 Wn.2d 645, 673, 384 P.2d 833 (1963).

1. Historical Background of the Common Law Rule. The English common law right forcibly to resist an illegal arrest was established almost three hundred years ago in The Queen v. Tooley, 92 Eng. Rep. 349, 351-52 (K.B. 1710). The facts of Tooley are necessary for proper analysis, but, unfortunately, are rarely discussed in the cases.⁷

A statute enacted in the twenty-seventh year of the reign of Elizabeth I for the purpose of "reformation of disorders” allowed certain officials of London to "hear and punish incontinencies.” Tooley, 92 Eng. Rep. at 349. One nonmedical meaning of incontinent is unchaste, or of unrestrained sexual appetite, or lewdness. Pursuant to a warrant issued in accordance with this statute, Constable Samuel Bray set about rounding up the "usual suspects” within the City of Westminster. Between 8 and 9 o’clock on the night of March 8, Constable Bray apprehended Mistress Anne Dekins "in the street between the playhouse and the Rose Tavern.” Tooley, 92 Eng. Rep. at 349. He suspected her of being a disorderly person, having previously arrested her for being disorderly. The trial court later disagreed with Bray, finding that he had no reason to arrest her, as she was not misbehaving at the time.

On the way to jail, three men, all strangers to Anne Dekins, drew their swords and attempted to rescue her from Constable Bray’s custody. The case does not say what motivated these three strangers to attempt the rescue. The constable "shewed” them his constable’s staff, and declared himself to be on the Queen’s business. They chose then to desist and Bray "carried the woman to the roundhouse[.]” Tooley, 92 Eng. Rep. at 350. An important point is that the three strangers did not see the unlawful arrest of Mistress Dekins; they saw her only under restraint as Bray led her to jail.

Shortly thereafter, with Mistress Dekins safely locked up, the same three men again assaulted Constable Bray outside the jail for the purpose of obtaining her release. Bray called for assistance, and Joseph Dent came to his aid. One of the three then killed Dent with a sword. The issue at trial was whether the three were guilty of murder or manslaughter. Under the law at the time, one who killed another without provocation was guilty of murder. If provocation were present, the crime was manslaughter. Thus, the question for the court was whether the arrest of Mistress Anne Dekins was sufficient provocation to the three strangers to excuse their actions and prevent a conviction for murder.

The case was argued on appeal "before all the Judges of England at Serjeant’s-Inn in Chancery-Lane,” and resulted in a 7-5 verdict for manslaughter. Tooley, 92 Eng. Rep. at 352. Chief Justice Holt of the King’s Bench delivered the decision of the court:

The prisoners [the accused] in this case had sufficient provocation; for if one be imprisoned upon an unlawful authority, it is a sufficient provocation to all people out of compassion; much more where it is done under a colour of justice, and where the liberty of the subject is invaded, it is a provocation to all the subjects of England. . . . Constables have an authority by the statute to arrest persons, but that must be by warrant from the justices of the peace; but in this case there was no warrant.

Tooley, 92 Eng. Rep. at 352. To the argument that the three strangers could not have been provoked because they were strangers to Mistress Dekins, the Chief Justice answered: "but sure a man ought to be concerned for Magna Charta and the laws; and if any one against the law imprisons a man, he is an offender against Magna Charta.” Tooley, 92 Eng. Rep. at 353.

But how could three strangers who did not even witness the arrest know the arrest was unlawful? Chief Justice Holt rejoined, "but surely ignorantia facti will excuse, but never condemn a man. Indeed, he acts at his peril in such a case, but he must not lose his life for his ignorance.” Tooley, 92 Eng. Rep. at 353. In other words, the three strangers acted at their peril — had it been decided later that the arrest was in fact lawful, they would have been found guilty of murder. Because the court later determined the arrest to have been unlawful, the court held they had been properly provoked, and could be guilty only of manslaughter, not murder.

The important point to note is that Tooley is not about Mistress Anne Dekins’s right to resist her unlawful arrest. It is about the right of others, strangers, to resist her unlawful arrest. The "provocation” the Tooley court spoke of was not the provocation of Mistress Dekins. It was the provocation of the three strangers at seeing someone unlawfully imprisoned, and whether that provocation provided sufficient reason to reduce their conviction from murder to manslaughter. Nevertheless, the Tooley rule has come down to us as a rule permitting an arrestee to use the necessary force (but no more) to resist an unlawful arrest.⁸

To understand why an unlawful arrest was such a great provocation as to affect "all people out of compassion,” it is necessary to look at the historical evidence of the state of English prisons in the eighteenth century.

2. English Prisons. Professor Sam Bass Warner of Harvard Law School was instrumental in the 1940’s in setting forth the historical background leading to the abandonment of the Tooley rule in the majority of states. "The [Tooley\ rule developed when long imprisonment, often without the opportunity of bail, 'goal [sic] fever,’ physical torture, and other great dangers were to be apprehended from arrest, whether legal or illegal.” Sam B. Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 330 (1942).

In an earlier article, Professor Warner described in more detail the horrors awaiting those arrested:

Since jailers were held responsible for escapes and many jails were constructed for some other purpose and hence easy to break out of, prisoners were often kept in irons. Those without the means to buy better accommodations were frequently huddled together in dark, filthy rooms, in close proximity to depravity and disease. Under such conditions, imprisonment until the next term of court was often equivalent to a death sentence, especially during the frequent periods when prisons were swept by a malignant form of typhus known as "gaol fever.”[⁹] ¹⁰In 1759 an English authority estimated that each year a fourth of the people in prison died there.[¹⁰]

Sam Bass Warner, Investigating the Law of Arrest, 26 A.B.A. J. 151, 152 (1940). Others have also chronicled the deplorable conditions of English jails:

In several prisons there was no food allowance; in others it consisted of a meager bread ration. "Water soup” (bread boiled in water) was not uncommon fare. Prisoners who received bread allowances on alternate days were so hungry that they often ate the entire amount the first morning and then went hungry the rest of that day and the next. Persons who entered jail in the picture of health, emerged scarcely able to move from hunger, and incapable of any labor for weeks thereafter.

No medical facilities were available in the prisons. The air was foul and noxious from the "effluvia” of the sick and the lack of sewage facilities. Prisoners were crowded together in close rooms and underground dungeons and chains were often required to prevent escape. Men were not separated from women, nor the sane from the insane ....

In addition, every incident of prison life from admission to discharge was made the occasion for levying fees against the prisoners. There were charges for the arrest, for the privilege of detention in this or that part of the prison, for bed and bedding, for food and other "conveniences” of life, and for release. In Massachusetts at the end of the seventeenth century those who were unable to pay their fees "might be sold for life or a period of years into the service of anybody willing to pay their fees.”

Comment at 122 n.16 (citation omitted) (quoting Warner, Investigating the Law of Arrest, 26 A.B.A. J. 151, at 152). As one commentator put it, "Where imprisonment was often the equivalent of a death sentence, or at least, a living death, one can understand why men resisted unlawful arrest.” Comment at 123. One can also understand why, as the Tooley court said, an unlawful arrest was a great provocation affecting "all people out of compassion.” Tooley, 92 Eng. Rep. at 352. The common-law rule set out in Tooley plainly resulted from conditions that no longer exist.

3. Modern Arrest and Incarceration. In Washington today the law provides those arrested with numerous protections that did not exist when the common-law rule arose. Reasonable bail is available. Wash. Const, art. I, § 20; Westerman v. Cary, 125 Wn.2d 277, 291-92, 892 P.2d 1067 (1994). At any critical stage in a criminal prosecution a defendant has a right to appointed counsel under both the federal constitution’s Sixth Amendment and our state constitution’s article I, section 22 (amend. 10). Coleman v. Alabama, 399 U.S. 1, 7, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970); Heinemann v. Whitman County, 105 Wn.2d 796, 799-800, 718 P.2d 789 (1986). Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), held the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest. None of these rights was available in 1709. "[T]he right to resist developed when the procedural safeguards which exist today were unknown.” State v. Hatton, 116 Ariz. 142, 568 P.2d 1040, 1045 (1977).

Not only has criminal procedure advanced to protect the rights of the accused, jails themselves are no longer the pestilential death traps they were in eighteenth century England. Recent Eighth Amendment litigation of prisoners’ claims of cruel and unusual punishment has established certain constitutional standards for prisons. See, e.g., Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (prohibiting "deliberate indifference to serious medical needs”), reh’g denied, 429 U.S. 1066 (1977); Gregg v. Georgia, 428 U.S. 153, 173, 183, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (prohibiting the "unnecessary and wanton infliction of pain,” which includes sanctions so lacking in penological justification that they constitute the "gratuitous infliction of suffering”), reh’g denied, 429 U.S. 875 (1976). The United States Supreme Court "has determined that most of the constitutional rights contained in the Bill of Rights survive incarceration.” Michael B. Mushlin, Rights op Prisoners 13 (2d ed. 1993).

Thus, "[i]n this era of constantly expanding legal protection of the rights of the accused in criminal proceedings, an arrestee may be reasonably required to submit to a possibly unlawful arrest and to take recourse in the legal processes available to restore his liberty.” Commonwealth v. Moreira, 388 Mass. 596, 447 N.E.2d 1224, 1227 (1983). "The concept of self-help is in decline. It is antisocial in an urbanized society. It is potentially dangerous to all involved. It is no longer necessary because of the legal remedies available.” State v. Koonce, 89 N.J. Super. 169, 214 A.2d 428, 436 (1965). We agree.

4. The Trend Away From the Common-Law Rule. In 1966, the right to resist an unlawful arrest was recognized in 45 out of 50 states. At that time the five states that had abrogated the right were Rhode Island, New Hampshire, Delaware, California, and New Jersey. Max Hochanadel & Harry W. Stege, Note, Criminal Law: The Right to Resist an Unlawful Arrest: An Out-Dated Concept?, 3 Tulsa L. J. 40, 46 (1966). By 1983, however, 25 of those 45 states had revoked the common-law rule either by statute¹¹ or decision,¹² and today, only 20 states have it in place, while resisting even an unlawful arrest is prohibited by law in 30 states. "[T]his common law principle has suffered a devastating deluge of criticism.” State v. Thomas, 262 N.W.2d 607, 610 (Iowa 1978) (rule is "an anachronistic and dangerous concept”). Thus, the hold of the common-law rule has weakened substantially in the last 30 years as jurisdiction after jurisdiction has modernized its jurisprudence to reflect the differences in criminal procedure in late twentieth century America as compared to early eighteenth century England. "[T]he trend in this country has been away from the old rule and toward the resolution of disputes in court.” Moreira, 447 N.E.2d at 1226.

Courts addressing the question have set out many cogent and compelling reasons for consigning the common law rule to the dustbin of history. For example:

While society has an interest in securing for its members the right to be free of unreasonable searches and seizures, society also has an interest in the orderly resolution of disputes between its citizens and the government. (United States v. Ferrone (3d Cir. 1971) 438 F.2d 381, 390.) Given such competing interests, we opt for the orderly resolution through the courts over what is essentially "street justice.”[¹³]

Evans v. City of Bakersfield, 22 Cal. App. 4th 321, 27 Cal. Rptr. 2d. 406, 412 (1994).

While defendant’s rights are no doubt violated when he is arrested and detained a matter of days or hours without probable cause, we conclude the state in removing the right to resist does not contribute to or effectuate this deprivation of liberty. In a day when police are armed with lethal and chemical weapons, and possess scientific communication and detection devices readily available for use, it has become highly unlikely that a suspect, using reasonable force, can escape from or effectively deter an arrest, whether lawful or unlawful. His accomplishment is generally limited to temporary evasion, merely rendering the officer’s task more difficult or prolonged. Thus self-help as a practical remedy is anachronistic, whatever may have been its original justification or efficacy in an era when the common law doctrine permitting resistance evolved. . . . Indeed, self-help not infrequently causes far graver consequences for both the officer and the suspect than does the unlawful arrest itself. Accordingly, the state, in deleting the right to resist, has not actually altered or diminished the remedies available against the illegality of an arrest without probable cause; it has merely required a person to submit peacefully to the inevitable and to pursue his available remedies through the orderly judicial process.

People v. Curtis, 70 Cal. 2d 347, 450 P.2d 33, 36-37, 74 Cal. Rptr. 713 (1969) (footnote and citation omitted).

We are of the opinion that the common law rule is outmoded in our modern society. A citizen, today, can seek his remedy for a policeman’s unwarranted and illegal intrusion into the citizen’s private affairs by bringing a civil action in the courts against the police officer and the governmental unit which the officer represents. The common law right of forceful resistance to an unlawful arrest tends to promote violence and increases the chances of someone getting injured or killed.

Fields v. State, 178 Ind. App. 350, 382 N.E.2d 972, 975 (1978).

More important [than the existence of civil remedies], however, are the unwarranted dangers to civil order caused by this lingering artifact. Peace officers are today lethally armed and usually well trained to efficiently effect arrests. Resultantly, the resister’s chances of success are seriously diminished unless he counters with equal or greater levels of force. The inevitable escalation of violence has serious consequences for both participants and innocent bystanders.

Briefly stated, a far more reasonable course is to resolve an often difficult arrest legality issue in the courts rather than on often hectic and emotion laden streets. Modern urbanized society has a strong interest in encouraging orderly dispute resolution. Confronting this is the outmoded common law rule which fosters unnecessary violence in the name of an obsolete self-help concept which should be promptly discarded.

Thomas, 262 N.W.2d at 611. We agree with all of these sentiments. Finally, we also associate ourselves with Judge Learned Hand, who said,

The idea that you may resist peaceful arrest — and mind you, that is all it is — because you are in debate about whether it is lawful or not, instead of going to the authorities which can determine, seems to me not a blow for liberty but, on the contrary, a blow for attempted anarchy.

Discussion of the Model Penal Code (Tentative Draft No. 8), 35 A.L.I. Proc. 254 (1958).

In the final analysis, the policy supporting abrogation of the common-law rule is sound. That policy was well enunciated by Division Two of the Court of Appeals in State v. Westlund, 13 Wn. App. 460, 467, 536 P.2d 20, 77 A.L.R.3d 270, review denied, 85 Wn.2d 1014 (1975), where the court said:

[T]he arrestee’s right to freedom from arrest without excessive force that falls short of causing serious injury or death can be protected and vindicated through legal processes, whereas loss of life or serious physical injury cannot be repaired in the courtroom. However, in the vast majority of cases, as illustrated by the one at bar, resistance and intervention make matters worse, not better. They create violence where none would have otherwise existed or encourage further violence, resulting in a situation of arrest by combat. Police today are sometimes required to use lethal weapons for self-protection. If there is resistance on behalf of the person lawfully arrested and others go to his aid, the situation can degenerate to the point that what should have been a simple lawful arrest leads to serious injury or death to the arrestee, the police or innocent bystanders. Orderly and safe law enforcement demands that an arrestee not resist a lawful arrest and a bystander not intervene on his behalf unless the arrestee is actually about to be seriously injured or killed.

We found these policy reasons "convincing” and adopted the holding of Westlund in State v. Holeman, 103 Wn.2d 426, 430, 693 P.2d 89 (1985). We affirm today our statements in Holeman.

In sum, we hold that, although a person who is being unlawfully arrested has a right, as the trial court indicated in instruction 17, to use reasonable and proportional force to resist an attempt to inflict injury on him or her during the course of an arrest, that person may not use force against the arresting officers if he or she is faced only with a loss of freedom. We explicitly overrule Rousseau and other cases that are inconsistent with our holding in this case.

Before leaving this issue, we take note of the dissent’s assertion that the majority’s holding "makes the unlawful arrest of Valentine irrelevant.” Dissenting op. at 53. Our first response is that we are unable to understand how the dissenter knows that Valentine was in fact unlawfully arrested. As we noted above, that issue was not presented to the trial judge or the jury. The jury did, however, determine, after listening to Valentine’s testimony and the testimony of the police, that Valentine’s physical altercation with the police was not justifiable as self-defense. Unfortunately, the dissent has chosen to second-guess the jury’s determination and substitute its own opinion of what occurred.

More importantly, if the rule were, as the dissent suggests it should be, that a person being unlawfully arrested may always resist such an arrest with force, we would be inviting anarchy. While we do not, as the dissent appears to suggest, condone the unlawful use of state force, we can take note of the fact that in the often heated confrontation between a police officer and an arrestee, the lawfulness of the arrest may be debatable. To endorse resistance by persons who are being arrested by an officer of the law, based simply on the arrested person’s belief that the arrest is unlawful, is to encourage violence that could, and most likely would, result in harm to the arresting officer, the defendant, or both. In our opinion, the better place to address the question of the lawfulness of an arrest that does not pose harm to the arrested person is in court and not on the street.

II

Valentine’s final contention is that this court should dismiss the. charge against him on the grounds that the conduct of the arresting officer was so outrageous as to be violative of his right to due process as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. Significantly, this issue was not raised at the trial court or at the Court of Appeals by Valentine. It was first identified as an issue in Valentine’s petition for review, no doubt precipitated by the opinion of the dissenting judge at the Court of Appeals who wrote: "My review of the record leaves me with a deep and abiding certainty that the State violated constitutional principles of fundamental fairness by convicting Mr. Valentine for a crime which it provoked.” State v. Valentine, 75 Wn. App. 611, 621, 879 P.2d 313 (1994) (Schultheis, J., dissenting).¹⁴

The United States Supreme Court has indicated that there may be situations where "the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” United States v. Russell, 411 U.S. 423, 431-32, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973). To be violative of due process, the officer’s conduct must, however, shock the universal sense of fairness. Russell, 411 U.S. at 432.

This court has also indicated that the state’s conduct might be so inappropriate as to be violative of due process, but we cautioned that it would have to rise to the level that it was " 'so shocking as to violate fundamental fairness.’ ” State v. Myers, 102 Wn.2d 548, 551, 689 P.2d 38 (1984) (quoting State v. Smith, 93 Wn.2d 329, 351, 610 P.2d 869, cert. denied, 449 U.S. 873 (1980)). Prior to our recent decision in State v. Lively, 130 Wn.2d 1, 921 P.2d 1035 (1996), however, "no Washington decision ha[d] dismissed a prosecution for outrageous conduct by government agents.” State v. Rundquist, 79 Wn. App. 786, 794, 905 P.2d 922 (1995), review denied, 129 Wn.2d 1003 (1996). In Lively, we concluded that the conduct of the police was so "contrary to public policy and to basic principles of human decency” as to be violative of due process. Lively, 130 Wn.2d at 27. Consequently, we reversed the defendant’s (Lively’s) conviction.

The situation here is not at all like that which was confronted in Lively. That is so because the record we have been furnished does not permit us to reach a determination that the police acted in such an outrageous manner that due process considerations dictate dismissal of the charge against Valentine. In order to do so, we would have to accord greater weight to the testimony of Valentine than to the Spokane police officers. Although the dissenting opinion describes the disputed facts in the light most favorable to Valentine, it was appropriate for the author of the dissent to do so in the context of exploring the issue of whether Valentine was entitled to have the trial court instruct the jury that a person may use force to resist an unlawful arrest. Thompson v. Berta Enters., Inc., 72 Wn. App. 531, 864 P.2d 983 (a party has the right to have his or her theory of the case presented to the jury if there is substantial evidence to support it), review denied, 124 Wn.2d 1028 (1994). On the other hand, whether a prosecution should be dismissed for outrageous conduct is a different question. At this level, that question should be viewed as a question of law that is to be based on the facts of the case. Those facts, however, are not to be resolved at the appellate court, nor should we view them in the light most favorable to the defendant. Resolution of factual disputes is a task for the trier of fact, not this court. Lillig v. Becton-Dickinson, 105 Wn.2d 653, 657, 717 P.2d 1371 (1986).

Unfortunately, the trial court was not asked to make findings of fact on this issue.¹⁵ Although Valentine and the Spokane police officers all testified about the incident, the officers’ version of the event varied greatly from Valentine’s version. Importantly, although the jury was not asked to consider what Valentine now claims is outrageous conduct by the Spokane police officers, it did find Valentine guilty of assaulting Moore. In reaching that determination, the jury apparently chose to believe the testimony of the police officers. We will not second-guess that determination, particularly where, as here, there has been no challenge to the sufficiency of the evidence supporting the jury’s verdict.

In denying Valentine’s request for dismissal, we are not saying that the Spokane police officers were not to some degree responsible for escalating a simple traffic stop into a more serious incident. Indeed, there is much here that causes us concern. For instance, why did Officer Robinson consider Valentine to be suspicious? Why, also, was Valentine not presented with a citation to sign before Officer Moore informed him that he would be arrested for failing tó cooperate by not signing a citation? Finally, why did so many officers respond to a report of a minor traffic offense occurring in downtown Spokane at midday? Despite these concerns, in the absence of findings of fact or undisputed facts showing outrageous conduct by the Spokane police officers, we cannot say that their conduct was violative of due process. Consequently, we are unwilling to direct dismissal of the third degree assault charge against Valentine

Affirmed.

Durham, C.J., and Dolliver, Guy, Johnson, and Tal-madge, JJ., concur.

1 In his brief to the appellate court, Valentine assigned error to the trial court’s refusal to give his proposed instruction 9, which read:

"A person arrested without lawful authority may forcibly resist that arrest so long as the force is no more than is necessary as defined elsewhere in these instructions.” Clerk’s Papers at 43. He does not, however, directly refer to that proposed instruction in the body of the brief or in his supplemental brief to this court and thus we have not addressed it.

2 Moore testified at trial that he was acquainted with Valentine because he had cited him on two prior occasions for front license plate violations.

3 Yates had been involved in a verbal confrontation with Valentine in a tavern the day before the incident leading to this appeal. Yates testified that the tavern incident "probably could have been” discussed with other officers at roll call, about two hours before the incident. VRP at 138.

4 The carotid hold is a hold applied to the neck area. It is designed to inhibit the supply of blood to the brain, and when applied correctly, the victim of the hold will lose consciousness.

5 Cases from the Court of Appeals are consistent with Hornaday. See State v. Crider, 72 Wn. App. 815, 866 P.2d 75 (1994) (holding that reasonable resistance to an unlawful arrest is justified, but use of force to resist an unlawful arrest that threatens only a loss of freedom is not reasonable); City of Seattle v. Cadi-gan, 55 Wn. App. 30, 776 P.2d 727, review denied, 113 Wn.2d 1025 (1989); State v. Goree, 36 Wn. App. 205, 673 P.2d 194 (1983).

6 State v. Thomas, 262 N.W.2d 607, 611 (Iowa 1978) (overruling prior law and holding "a person may not resist an arrest reasonably effected by one whom the arrestee knows or has good reason to know is a peace officer, despite legality or illegality of the arrest”); "A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer.” Fla. Stat. ch. 776.051 (1995) (statute enacted in 1974); "[I]f a person has knowledge, or by exercise of reasonable care, should have knowledge, that he was being arrested by peace officer, it is duty of such person to refrain from using force or any weapon to resist such arrest.” Cal. Penal Code § 834a (West 1996) (statute enacted in 1957).

7 One exception is Rodgers v. State, 280 Md. 406, 373 A.2d 944, cert. denied, 434 U.S. 928 (1977).

8 Today in Washington, the three strangers would have been guilty at least of the gross misdemeanor of obstructing a law enforcement officer: "A person is guilty of obstructing a law enforcement officer if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties.” ROW 9A.76.020(1). Chief Justice Holt was not deterred by the argument that the second attack of the three strangers, resulting in Dent’s death, did not occur until Mistress Dekins was already in prison. He said simply that putting her in prison was "an aggravation.” Tooley, 92 Eng. Rep. at 353.

9 " 'Gaol fever,’ a highly contagious fatal form of typhus, frequently swept the prisons. It was so pestilential that prisoners brought before the Lent Assize at Taunton (1730) infected the court itself — causing the deaths of the lord chief baron, the sheriff, the sergeant, and hundreds of others. More prisoners died from 'gaol fever’ than were put to death by all the public executioners in the realm — at a time when there were 241 capital offenses.” Ralph D. Smith, Comment, Criminal Law — Arrest — The Right to Resist Unlawful Arrest, 7 Nat. Resources J. 119, 122 n.16 (1967) (hereinafter Comment) (citing John Howard, The State op Prisons 6-7 (1929)) (Howard’s observations are from 1773 to 1775).

10 "[A]11 the complicated horrors of a prison, put an end every year to the life of one in four of those that are shut up from the common comforts of human life.

"Thus perish yearly five thousand men, overborne with sorrow, consumed by famine, or putrified by filth, many of them in the most vigorous and useful part of life.” Comment at 123 (quoting The Gentleman’s Magazine and Historical Chronicle, Jan. 1759, p.17).

11 Ala. Code § 13A-3-28 (1994); Ark. Code Ann. § 5-2-612 (Michie 1993); Cal. Penal Code § 834a (West 1985); Colo. Rev. Stat. § 18-8-103(2) (1990); Conn. Gen. Stat. § 53a-23 (1985); Del. Code Ann. tit. 11, § 464(d) (1995); Fla. Stat. Ann. § 776.051(1) (West 1992); III. Ann. Stat. ch. 720, 5/7-7 (Smith-Hurd 1993); Iowa Code Ann. § 804.12 (West 1994); Mont. Code Ann. § 45-3-108 (1995); Neb. Rev. Stat. § 28-1409(2) (1995); N.H. Rev. Stat. Ann. § 594:5 (1986); N.Y. Penal Law § 35.27 (McKinney 1987) (the dissent’s citation of People v. Cherry, 307 N.Y. 308, 121 N.E.2d 238 (1954), is inappropriate, as that case is no longer the law in New York); Or. Rev. Stat. § 161.260 (1990); 18 Pa. Cons. Stat. Ann. § 505(a), (b)(l)(i) 1983); R.I. Gen. Laws § 12-7-10 (1994); S.D. Codified Laws Ann. § 22-11-5 (Michie 1988); Tex. Penal Code Ann. § 9.31(b)(2), 38.03 (West 1994); Va. Code Ann. § 18.2-460 (Michie 1996).

12 Miller v. State, 462 P.2d 421, 427 (Alaska 1969); State v. Hatton, 116 Ariz. 142, 568 P.2d 1040, 1046 (1977); State v. Richardson, 95 Idaho 446, 511 P.2d 263, 268 (1973), cert. denied, 414 U.S. 1163 (1974); State v. Thomas, 262 N.W.2d 607, 610-11 (Iowa 1978); State v. Austin, 381 A.2d 652, 655 (Me. 1978); In re Welfare of Burns, 284 N.W.2d 359, 360 (Minn. 1979); State v. Nunes, 546 S.W.2d 759, 762 (Mo. Ct. App. 1977); State v. Koonce, 89 N.J. Super. 169, 214 A.2d 428, 436 (1965); State v. Doe, 92 N.M. 109, 583 P.2d 473 (Ct. App.), aff’d in part, rev’d in part, 92 N.M. 100, 583 P.2d 464, 467 (1978); City of Columbus v. Fraley, 41 Ohio St. 2d 173, 324 N.E.2d 735, 740, cert. denied, 423 U.S. 872 (1975); State v. Peters, 141 Vt. 341, 450 A.2d 332, 335 (1982).

13 Concerning the effectiveness of remedies, we agree with the California Supreme Court:

"We are not unmindful that under present conditions the available remedies for unlawful arrest — release followed by civil or criminal action against the offending officer — may he deemed inadequate .... However, this circumstance does not elevate physical resistance to anything other than the least effective and desirable of all possible remedies; as such its rejection, particularly when balanced against the state’s interest in discouraging violence, cannot realistically be considered an affirmative 'seizure’ or deprivation of liberty.” People v. Curtis, 70 Cal. 2d 347, 450 P.2d 33, 37, 74 Cal. Rptr. 713 (1969).

14 Although Valentine’s appellate counsel makes a passing reference in the petition for review to article I, section 3 of the Washington Constitution, he did not undertake a Guruuall analysis. Therefore, we will not address the state constitution. See State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986).

15 In Lively, the trial court made findings of fact to support imposition of an exceptional sentence. Those findings described the conduct of the police. The majority in Lively indicated that while these findings cannot be considered in a sufficiency review, they can be relied on "in the context of a claimed due process violation.” Lively, 130 Wn.2d at 24.