One of the most difficult and perplexing problems in the law of criminal procedure is the amount of force that may be used in effecting an arrest and, conversely, the amount that may be used in resisting one. Perhaps this is due, in part, to the many phases and ramifications of the problem. Situations having to do with both felonies and misdemeanors and with arrest both with and without warrant are included in the problem and, in the case of each, whether the arrester can ever go so far to effectuate his purpose of bringing the party into submission as to take his life, if nothing short of that will accomplish the purpose of the arrest.
In the case of the arrestee the problem involves, among other things, a differentiation of rule based upon whether the arrest is legal or illegal. In the case of both the arrester and the arrestee a number of other factors affect the decision in particular cases, such as, for example, whether the defect is patent or latent when the arrest is under a defective warrant. Finally, there, are a number of fundamentally separate questions, such as the right to self-defense, which often become involved in, and a part of, the general problem of force in effecting or resisting arrest.
A. Use of Force in Effecting Arrest … 1. Where the Arrestee Has Committed, Is Committing, or Is About To Commit a Major, Atrocious Felony … 2. The Rule in the Case of Minor, Non-Atrocious Felonies … 3. Suggested Exceptions to the Minor, Non-Atrocious Felony Doctrine …4. Where the Arrestee is Committing, Has Committed or is About to Commit a Misdemeanor … A. Arrester’s Right to Self-Defense
B. Use of Force in Resisting Arrest …1. Where the Arrest is Lawful … 2. Resisting Unlawful Arrest.
The Use of Force in Effecting or Resisting Arrest,
33 Neb. L. Rev. 408
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