GA retains common law that permits resistance to unlawful arrest

A fascinating recitation of the common law of arrest and the ability to resist an unlawful arrest: As the law existed when the common law was adopted by statute in Georgia in 1776, there was such authority. Most states changed it, but this common law rule remains in Georgia. Glenn v. State, 2020 Ga. LEXIS 737 (Oct. 5, 2020):

Although many states have limited or eliminated the common-law right to resist an unlawful arrest or detention, after reviewing this State’s constitutional and statutory provisions relevant to detentions and arrests, we conclude that the Georgia General Assembly has not done so and that the common-law rule remains in effect in Georgia, at least with respect to charges of obstruction or interference with government property. And we conclude that the mere passage of time between an unlawful arrest and an attempt to escape from the ensuing detention has no bearing on whether the use of force was proportionate or necessary. Under Georgia law, therefore, a person may damage government property in an attempt to resist an unlawful, warrantless arrest or escape an unlawful, warrantless detention, using no more than proportionate force, even where, as in this case, officers handcuff an arrestee and place him in a patrol car before the arrestee’s property-damaging conduct.

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After reviewing our State’s constitutional and statutory provisions relevant to detentions and arrests, we concluded in Division 1, supra, that the common-law right to resist an unlawful arrest or detention remains in effect in Georgia. Under the common-law rule, Glenn’s right to resist an unlawful detention did not evaporate simply because he kicked the car door “some time” after he was initially handcuffed and seated in a patrol car but before he was brought before a judicial officer or an arrest warrant was issued. Thus, the trial court cut short its analysis when it failed to consider whether Glenn used force to resist the officers’ actions that was proportionate under the circumstances. This determination is not for this Court, or for the Court of Appeals, to make in the first instance. Accordingly, the judgment of the Court of Appeals is reversed, and the Court of Appeals is directed on remand to vacate the order revoking Glenn’s probation and to remand this case to the trial court for further proceedings consistent with this opinion.