Immigration Article of the Day: A Right to Resist Masked Arrest by Zack Steigerwald Schnall

A Right to Resist Masked Arrest by Zack Steigerwald Schnall

Abstract
In the second Trump Administration, individuals are being plucked, cuffed, and dragged off the street by strangers. Some of these vanishing acts are done, with varying degrees of lawfulness, by federal officers. Others are abductions, perpetrated by private actors impersonating law enforcement. Practices that conceal federal officers’ identities make it nearly impossible to distinguish between the two.

This Essay lays the groundwork for establishing a right to resist masked arrest. The path is somewhat rocky, as the right to resist unlawful arrest has been abrogated in several states and at the federal level. Nevertheless, two approaches offer independent footholds to overcome this obstacle. First, a right to resist arrest by an unidentified stranger is based on a presumptively reasonable belief that the perpetrator is not in fact a law enforcement officer, which is distinct from the largely abrogated right to resist unlawful arrest by an identified officer. Second, as applied to interactions with masked strangers claiming to be officers, anti-resistance laws present a state-created danger, chilling individuals from acting in self-defense when these masked strangers are in fact imposters. Partial invalidation of these anti-resistance laws would legitimate a right to resist arrest by masked officers.

Resisting arrest is dangerous. It may be unwise. That is irrelevant. Where an individual cannot plainly distinguish between an arrest and an abduction, they should not be stripped of self-defense as a legal means of recourse. In a time of heightened civil strife, the government should establish safeguards to assure arrestees that their captors are public servants duly authorized to make arrests. Masks obstruct that goal. Unless and until officers properly identify themselves, there must be a right to resist masked arrest.