Glenn v. State

FINAL COPY

                  S19G1236. GLENN v. THE STATE.


      ELLINGTON, Justice.

      We granted Christopher Glenn’s petition for a writ of certiorari

to consider whether the Court of Appeals erred in affirming the trial

court’s order revoking Glenn’s probation based on its determination

by a preponderance of the evidence that Glenn committed the felony

offense of interference with government property by kicking and

damaging the door of a police car when he was detained inside. See

Glenn v. State, 

 (

) (2019).1 Glenn’s



      1 We note that, in Glenn, the Court of Appeals recited that “[o]nly slight

evidence is required to authorize revocation” of probation. 350 Ga. App. at 14.
The Court subsequently disapproved of this statement of the standard of proof
in Thurmond v. State, 

, 508 n.2 (

) (2020) (noting
that OCGA § 42-8-34.1, which was adopted in 1988, provides that the standard
for proving a probation violation is a preponderance of the evidence and
disapproving of Glenn to the extent it held that only “slight evidence” of
violation of the probation sentence was necessary to justify revocation of
probation, as was the law before the Code section was adopted). See Caldwell
v. State, 

 (

) (2014) (“Under Georgia law, a
trial court may revoke a probated sentence if the evidence produced at the
revocation hearing establishes by a preponderance of the evidence the violation
or violations of the conditions of probation alleged.” (citations and punctuation
omitted)).
claim that he damaged the door in the course of exercising his

common-law right to resist an unlawful arrest and detention, which

was rejected by the trial court and by the Court of Appeals, raises

two substantive questions: whether a person has a common-law

right to attempt to escape from the detention resulting from an

unlawful arrest and, if so, whether a person may damage

government property in such an attempt. For the reasons explained

below, we hold that the common-law right to resist an unlawful

arrest includes the right to use proportionate force against

government property to escape an unlawful detention following the

arrest. Because the trial court found that Glenn’s arrest was

unlawful but did not then consider whether the force he used in

attempting to escape the ensuing unlawful detention was

proportionate, we reverse the Court of Appeals’ decision with

direction that the case be remanded to the trial court to make this

essential determination.

     The trial court conducted an evidentiary hearing to determine

whether to revoke Glenn’s probation for violating the conditions of a
June 2017 probationary sentence by committing the new offenses of

loitering and prowling, obstruction of a law enforcement officer, and

interference with government property. At the hearing, the State

presented the testimony of three police officers and played about

four-and-a-half minutes of video with audio that was recorded by

one officer’s body camera. That evidence showed the following. On

May 3, 2018, an Athens-Clarke County police officer responded to a

“suspicious-person” call in the area of the Oglethorpe Elementary

School shortly after students were dismissed at 2:30 p.m. The

responding officer drove around the school property in his patrol car,

and for a few seconds he saw Glenn walking on the inside of a line

of trees and shrubbery that bordered the road behind the school. The

officer testified that he radioed to his dispatcher that he was “getting

out [of his patrol car] with a subject matching the description given

by the initial [911] caller.”

     The responding officer approached Glenn and called out to him,

“let me talk to you real quick.” Glenn asked if he was being detained.

The officer responded, “yes,” ordered Glenn to stop walking and to
sit down, and radioed for backup. Glenn, who remained standing,

asked the officer why he was being detained and said, “I’ll tell you

my name. It’s Christopher Glenn. I’m walking home.” The officer

told Glenn that he was “conducting an investigation” and that, if

Glenn moved, he would be charged with obstruction and, if he tried

to flee, the officer would “use force” if he had to.

      About one minute after the responding officer’s initial contact

with Glenn, another officer arrived. Each officer grasped one of

Glenn’s wrists, and they began to apply handcuffs.2 Two more

officers arrived in a third patrol car and ran to join the others,

followed soon thereafter by another officer in a fourth car. Glenn was

handcuffed within two minutes of the responding officer’s initial

contact with him. While the first responding officer gripped Glenn’s

wrist and arm, the other officers searched his person and removed



      2 At the revocation hearing, the responding officer testified that, when

he and the second officer handcuffed Glenn, they were arresting him for
loitering and prowling, although there is no evidence that any officer said so to
Glenn, and for “potential other charges” for which “the incident was still under
investigation.” He admitted that he and the other officers had not yet
developed probable cause for any offense other than loitering and prowling.
The second officer did not testify at the hearing.
and inspected the contents of his pockets. After the search, the

second officer told Glenn he was going to have to take a seat in his

patrol car. Glenn said, “I want you to tell me right here, what am I

being detained for?” The third officer told him, “for suspicion of a

crime. A sexual assault crime against a minor.”3 The responding

officer testified that, after Glenn had been detained and there were

enough officers to maintain control, he left that location to continue

his investigation of the suspicious-person complaint at the school.4

      The third officer testified that Glenn was placed in the second

officer’s patrol car, and within a few minutes the second officer asked

for an ambulance to evaluate Glenn, who had told him that he was

dehydrated. An ambulance arrived, and Glenn was placed in the

treatment area of the ambulance. The supervising officer soon



      3 No other information about any alleged sexual assault complaint was

put before the trial court.
      4 The transcript of the probation revocation hearing reflects that the trial

court reviewed only the first four minutes, thirty-four seconds of the video,
which was almost forty-four minutes long. At that point, Glenn had been
handcuffed and walked to the patrol car of the officer who was second on the
scene, and the responding officer walked away, toward his patrol car. The video
did not capture Glenn’s resistance to being placed and detained in the patrol
car.
ordered that Glenn be removed from the ambulance, because Glenn

was in custody and his condition would be assessed by jail personnel.

Instead of exiting, Glenn grabbed onto a seatbelt, and the officers

had to physically drag him to the rear doors of the ambulance. At

the doors, Glenn flung himself toward the officers and hit the

supervising officer’s head with his own forehead, causing a small

abrasion on the officer’s cheek.

     The third officer testified that Glenn became “dead weight and

resistant” as officers took him to a patrol car and tried to put him in

through the rear driver side door. An officer reached in from the

passenger side and pulled Glenn into the car. Glenn kicked against

the driver side door and fell out on the passenger side, landing on

the officer who had pulled him in and knocking the officer down. The

officers then tried to put Glenn back in on the passenger side, and

again another officer had to pull him in from the other side of the

car. Glenn kicked against the passenger side door hard enough to

damage the hinges and to propel himself out of the car. He stood up

on the driver side, and the supervising officer knocked him to the
ground. Officers put Glenn in the patrol car for the third time. After

the officers tied his legs and secured his feet to the floor, Glenn was

taken to the jail.

      The day after Glenn was arrested, a probation officer

requested, and the trial court issued, a warrant to arrest Glenn for

violating the conditions of his probation by committing the new

offenses of loitering and prowling,5 obstruction of a law enforcement

officer,6 and interference with government property.7 Two weeks

later, the State filed a petition to revoke Glenn’s probation, listing

the same offenses as violations of his probation.

      After presentation of evidence at the hearing on the revocation

petition, the State argued that the evidence showed that Glenn


      5 See OCGA § 16-11-36 (a) (“A person commits the offense of loitering or

prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and
reasonable alarm or immediate concern for the safety of persons or property in
the vicinity.”).
       6 See OCGA § 16-10-24 (a) (“Except as otherwise provided in subsection

(b) of this Code section, a person who knowingly and willfully obstructs or
hinders any law enforcement officer . . . in the lawful discharge of his or her
official duties shall be guilty of a misdemeanor.”).
       7 See OCGA § 16-7-24 (a) (“A person commits the offense of interference

with government property when he destroys, damages, or defaces government
property[.]”).
committed the offense of loitering and prowling by “walking along

the wooded edge of an elementary school as the school was being let

out.” The State argued that Glenn committed the offenses of

obstruction and interference with government              property by

“physically resisting in multiple ways at multiple points in time”

while being “detained . . . pending further investigation of the

reason for [the officers’] dispatch[,] . . . resulting in property damage

that rendered a police squad vehicle unable to close properly.” In

addition, the State argued that, even if the arrest was unlawful such

that Glenn did not commit the offense of obstruction, the

unlawfulness of the arrest would not excuse his behavior in

damaging government property.

     Glenn argued that the evidence instead showed that the

responding officer lacked probable cause to arrest him for loitering

and prowling, which made the arrest unlawful. He argued that

under Georgia law a person is allowed to resist an unlawful arrest

with a reasonable amount of force and that it does not matter

whether the force used to get away from an illegal detention is
directed against an officer or against an object.

     The trial court determined that the evidence did not support a

finding by a preponderance of the evidence that Glenn had

committed the offense of loitering and prowling. Specifically, the

trial court found that, on May 3, 2018, the officers did not observe

Glenn in a place at a time or in a manner not usual for law-abiding

individuals and found that there was no evidence of any

circumstances of the type listed in the applicable statute as

warranting alarm for the safety of persons or property in the

vicinity.8 The trial court noted that the officers involved failed to give


     8 OCGA § 16-11-36 (b) provides:

            Among the circumstances which may be considered in
     determining whether alarm is warranted is the fact that the
     person takes flight upon the appearance of a law enforcement
     officer, refuses to identify himself, or manifestly endeavors to
     conceal himself or any object. Unless flight by the person or other
     circumstances make it impracticable, a law enforcement officer
     shall, prior to any arrest for an offense under this Code section,
     afford the person an opportunity to dispel any alarm or immediate
     concern which would otherwise be warranted by requesting the
     person to identify himself and explain his presence and conduct.
     No person shall be convicted of an offense under this Code section
     if the law enforcement officer failed to comply with the foregoing
     procedure or if it appears at trial that the explanation given by the
     person was true and would have dispelled the alarm or immediate
     concern.
Glenn, prior to arresting him, an opportunity to explain his presence

and conduct so as to dispel any alarm or immediate concern which

would otherwise be warranted.9 The trial court also determined that

the evidence did not support a finding by a preponderance of the

evidence that Glenn had committed the offense of obstruction,

because there had been no basis to arrest Glenn for loitering and

prowling.

      But the trial court found by a preponderance of the evidence

that Glenn had committed the felony offense of interference with

government property by damaging the patrol car door. Specifically,




      9  In Bell v. State, 

 (

) (1984), this Court
considered a facial challenge to the constitutionality of OCGA § 16-11-36. We
concluded that the statute, in authorizing conviction for conduct “not usual for
law abiding individuals” that creates “a reasonable alarm or immediate
concern for the safety of persons or property in the vicinity,” defines the offense
in terms which discourage arbitrary enforcement. Id. at 271 (1) (punctuation
omitted). We noted that subsection (b) offers “useful guidelines” to assist an
officer in making the required determination. Id. We pointed out that under
subsection (b), “no violation [of the Code section] occurs if the investigating
officer fails to afford the suspect an opportunity to dispel otherwise reasonable
alarm by explaining his conduct.” Id. See also Waldrop v. State, 

 (3) (

) (2009) (“There is some evidence of loitering when
the defendant offers an inadequate explanation of his presence in a place and
at a time not usual for law-abiding individuals.”)
the trial court found that, even though Glenn’s arrest for loitering

and prowling was unlawful, he had no legal justification for

damaging government property once he was in handcuffs and sitting

in the patrol car. The trial court stated that damaging the car “kind of

goes outside the bounds. . . . [Y]ou’d have a right to come [to court] and

. . . attack the validity of the arrest or detainment or obstruction

charges.” The trial court granted the State’s petition and revoked

Glenn’s probation for a period of 90 days.10

     The Court of Appeals granted Glenn’s application for a

discretionary appeal and thereafter affirmed the trial court’s ruling

by a split-panel decision. The majority noted that Glenn’s argument

was based in part on the right to use force against a police officer to

resist an unlawful arrest and also noted that there is a dearth of

case law on whether that right extends to the use of force against

property to counter an illegal arrest. Glenn, 350 Ga. App. at 15.

Without resolving this question, the majority held that “given th[e]



     10 The trial court suspended the sentence, conditioned on Glenn’s
acceptance into the treatment and accountability court program.
lapse in time” between when Glenn was placed in the patrol car and

when he damaged the vehicle door, which the majority determined

based on the responding officer’s body camera footage to have been

at least 15 minutes,11 “Glenn’s damage to the vehicle was not in

response to an immediate need to resist an unlawful arrest, but

rather was an intentional act occurring some time after he was

detained.” Id. at 16-17 (emphasis in original), citing Brower v. State,

 (1) (

) (2009) (“A premise

underlying all the defenses specified in OCGA § 16-3-20 is that the

defendant faced circumstances created by external events that

demanded prompt, if not immediate, action.), disapproved of on

other grounds by McClure v. State, 

 (1) n.17 (

) (2019).

     Then-Presiding Judge McFadden dissented, concluding that

Glenn did indeed face an “imminent threat” in the form of

“immediate and continuing unlawful detention.” Glenn, 350 Ga.

App. at 18 (emphasis supplied). The dissent reasoned that “[i]t could


     11 See Glenn, 350 Ga. App. at 13.
not be seriously argued that kidnapping victims must become

compliant once they have been restrained and confined,” and,

therefore, justification would “obviously preclude[ ]” a charge of

criminal damage to property against a kidnapping victim. Id.

     1. Glenn contends that the trial court and the Court of Appeals

misconstrued Georgia law regarding the common-law right to resist

an unlawful arrest or detention. Specifically, Glenn argues that in

Georgia a person has a common-law right to resist an unlawful

arrest or detention with the degree of force necessary to achieve that

purpose; that such resistance may include damaging government

property in order to escape from an illegal detention; and that a

detention following an unlawful arrest continues to be unlawful

until such time as lawful process issues.

     The Georgia General Assembly adopted the common law of

England as of May 14, 1776, as Georgia’s own law, except to the

extent that Georgia’s statutory or constitutional law displaced the

common law, and that adoption remains in force today. See OCGA §
1-1-10 (c) (1);12 Barrow v. Raffensperger, 

 (4) (b) (

) (2020); Lathrop v. Deal, 

 (II) (A), n.9

(

) (2017). As explained below, with the adoption of the

common law, including the law of arrests, Georgia incorporated an

affirmative right that was imbedded by 1776 in the common law of

England to physically resist an unlawful arrest or escape from an

unlawful detention.13

      (a) The common law of arrests.

      Personal liberty and corresponding limitations on the power to

arrest were fundamental to the Magna Carta.14 Common-law


      12 OCGA § 1-1-10 (c) (1) provides:

             The following specific laws and parts of laws are not repealed
      by the adoption of this Code and shall remain of full force and
      effect, pursuant to their terms, until otherwise repealed, amended,
      superseded, or declared invalid or unconstitutional: . . . [a]n Act for
      reviving and enforcing certain laws therein mentioned and
      adopting the common laws of England as they existed on May 14,
      1776, approved February 25, 1784. (For the adopting Act of 1784,
      see Prince’s 1822 Digest, p. 570; Cobb’s 1851 Digest, p. 721; and
      Code of 1863, Section 1, paragraph 6.)
      13 See 44 ALR3d 1078 (1972) (“The English common-law right to resist

an unlawful arrest became established at least by 1710, and during the
nineteenth and early twentieth centuries, it became the established rule in the
United States as well.” (citation omitted)).
      14 “No freeman shall be taken or imprisoned or disseised or exiled or in

any way destroyed, nor will we go upon him nor send upon him, except by the
criminal     procedure      was     largely    accusatory,      rather     than

investigatory, in nature, and criminal proceedings were generally

initiated by crime victims who went before a magistrate to obtain an

arrest warrant. See Thomas Y. Davies, The Supreme Court Giveth

and the Supreme Court Taketh Away: The Century of Fourth

Amendment “Search and Seizure” Doctrine, 

, 943 (2010). A complainant would appear before a

judicial officer authorized to administer an oath, ordinarily a justice

of the peace, swear under oath based on personal knowledge that a

crime had been committed, and provide evidence showing that a




lawful judgement of his peers or by the law of the land.” Magna Carta § 39
(1215); see also 1 William Blackstone, Commentaries on the Laws of England,
p. 130 (1765) (“[T]he law of England regards, asserts, and preserves the
personal liberty of individuals. This personal liberty consists in the power of
loco-motion, of changing situation, or removing one’s person to whatsoever
place one’s own inclination may direct; without imprisonment or restraint,
unless by due course of law.”). The common-law definition of an arrest, as
enunciated by Blackstone, was “the apprehending or restraining of one’s
person, in order to be forthcoming to answer an alleged or suspected crime.” 4
William Blackstone, Commentaries on the Laws of England, p. 286 (1769). See
also 3 Joel Prentiss Bishop, Criminal Procedure; or, Commentaries of the Law
of Pleading and Evidence and the Practice in Criminal Cases, p. 86 § 156 (3rd
ed. 1880) (“An arrest is the taking into custody of a person, or a person and his
goods, in pursuance of some lawful command or authority.”).
certain person was known, or reasonably suspected, to be the

offender. See 1 Matthew Hale, Historia Placitorum Coronae: The

History of the Pleas of the Crown, pp. 579-580 (1736); 4 William

Blackstone, Commentaries on the Laws of England, p. 287 (1769);

Davies, supra, 100 J. Crim. L. & Criminology at 943-944 & n.28.15

After considering the complainant’s statement and any other

evidence, the magistrate would issue a warrant directing that the

offender be arrested and brought in to answer for the charge. See 1

William Blackstone, Commentaries on the Laws of England, pp.




      15 See also 1 Francis Wharton, A Treatise on Criminal Procedure, § 24,

pp. 46-48 (10th ed. 1918) (“The usual commencement of a criminal procedure
is a preliminary oath before a magistrate, upon which, if it appear on the face
of such oath that a criminal offense has been committed by the defendant
within the magistrate’s jurisdiction, a warrant of apprehension issues. The
affidavit must be specific, and must aver personal knowledge on the part of the
affiant.” (footnotes omitted)).
132-133 (1765);16 4 Blackstone, supra, pp. 287-288;17 Davies, supra,

100 J. Crim. L. & Criminology at 943 & n.26. “[W]hen a warrant is

received by the officer, he is bound to execute it, so far as the

jurisdiction of the magistrate and himself extends.” 4 Blackstone,



     16 Blackstone wrote:

             The confinement of a person, in any wise, is an
      imprisonment. So that . . . arresting or forcibly detaining him in
      the street, is an imprisonment. . . . To make imprisonment lawful,
      it must either be by process from the courts of judicature, or by
      warrant from some legal officer having authority to commit to
      prison; which warrant must be in writing, under the hand and seal
      of the magistrate, and express the causes of the commitment, in
      order to be examined into (if necessary) upon a habeas corpus.
1 Blackstone, supra, pp. 132-133.
      17 Blackstone wrote that warrants may be granted by justices of the

peace
      in any cases where they have a jurisdiction over the offence; in
      order to compel the person accused to appear before them. . . . [A]
      justice of peace hath power to issue a warrant to apprehend a
      person accused of felony, though not yet indicted; and . . . also . . .
      a person suspected of felony, though the original suspicion be not
      in himself, but in the party that prays his warrant; because he is
      a competent judge of the probability offered to him of such
      suspicion. But in both cases it is fitting to examine upon oath the
      party requiring a warrant, as well to ascertain that there is a
      felony or other crime actually committed, without which no
      warrant should be granted; as also to prove the cause and
      probability of suspecting the party, against whom the warrant is
      prayed. This warrant . . . should be directed to the constable, or
      other peace officer, requiring him to bring the party either
      generally before any justice of the peace for the county, or only
      before the justice who granted it.
4 Blackstone, supra, pp. 287-288 (footnotes omitted; emphasis in original).
supra, p. 288 (emphasis supplied). See also 1 Hale, supra, p. 581 (A

warrant issued by a justice of the peace is ordinarily directed to the

sheriff or constable, and “they are indictable, and subject thereupon

to a fine and imprisonment, if they neglect or refuse it.”). Even when

arrested pursuant to a warrant, the accused was to be brought to a

justice of the peace who, after a hearing, would examine the accused

(without oath) and the witnesses (under oath) and either completely

discharge the accused, set a reasonable bail for bailable offenses, or

hold him in jail pending trial for nonbailable offenses. 1 Hale, supra,

pp. 583-585; 4 Blackstone, supra, pp. 293-294.18




      18 Blackstone wrote:

             When a delinquent is arrested by any of the means
      [authorized], he ought regularly to be carried before a justice of the
      peace. . . . The justice, before whom such prisoner is brought, is
      bound immediately to examine the circumstances of the crime
      alleged: and to this end by statute . . . he is to take in writing the
      examination of such prisoner, and the information of those who
      bring him. . . . If upon this enquiry it manifestly appears, either
      that no such crime was committed, or that the suspicion
      entertained of the prisoner was wholly groundless, in such cases
      only it is lawful totally to discharge him. Otherwise he must either
      be committed to prison, or give bail; that is, put in securities for
      his appearance, to answer the charge against him.
4 Blackstone, supra, pp. 293-294.
      To protect public safety, warrantless arrests were permitted at

common law for felonies,19 but warrantless arrests for misdemeanors

and other petty offenses were only lawful where a peace officer

personally witnessed the offense being committed and the

misdemeanor amounted to a breach of the peace. See 1 Hale, supra,

p. 587 (“A constable may ex officio arrest a breaker of the peace in

his view, and keep him . . . till he can bring him before a justice of

the peace. . . . But if there be only an affray, and not in view of the

constable, it hath been held he cannot arrest him without a warrant

from the justice[.]”); 4 Blackstone, supra, p. 291 (A constable “may,

without a warrant, arrest any one for a breach of the peace,

committed in his view, and carry him before a justice of the

peace.”).20 Like other arrestees, a person arrested without a warrant


      19 See 4 Blackstone, supra, p. 289 (“[I]n case of felony actually committed,

or a dangerous wounding whereby felony is like to ensue, he may upon
probable suspicion arrest the felon” without a warrant.).
       20 See also Bad Elk v. United States, 

 (

, 44

LE 874) (1900) (“[A]n officer, at common law, was not authorized to make an
arrest without a warrant, for a mere misdemeanor not committed in his
presence.”); Kurtz v. Moffitt, 

 (

, 29 LE 458)
(1885) (“By the common law of England, neither a civil officer nor a private
citizen had the right without a warrant to make an arrest for a crime not
would be taken to the justice of the peace to be discharged, bailed,

or jailed. See 4 Blackstone, supra, pp. 293-294. It follows that, after

a warrantless arrest, the accused could be lawfully detained after a

judicial determination of sufficient grounds for the arrest.21

      (b) The common-law right to resist an unlawful arrest or
detention.

      The common-law right to forcibly resist an unlawful arrest and

detention arises in the context of warrantless arrests. One seminal

case, The Queen v. Tooley, 92 Eng. Rep. 349 (2 Ld. Raym. 1296) (K.

B. 1709),22 was cited by John Adams in June 1769 in his Argument



committed in his presence, except in the case of felony, and then only for the
purpose of bringing the offender before a civil magistrate.”); 1 Hale, supra, pp.
587-590; 1 Wharton, A Treatise on Criminal Procedure, supra, § 37, pp. 75-76
(In the case of a misdemeanor not committed in a police officer’s presence, the
officer may not “lawfully apprehend the offender without a warrant. . . . Why,
if the misdemeanor is completed, and the offender is not likely to escape,
should the check and safeguard of a warrant be waived?”)
       21 See Harris v. City of Atlanta, 

 (2), (3) (1879) (When

a police officer arrests a suspect without a warrant, he should take the suspect
“before a magistrate within a reasonable time after such arrest, in order to
have the suspicion judicially verified. . . . Whether the detention be for an
unreasonable time is a question for the jury under all the facts and
circumstances of the case.”).
       22 See Paul G. Chevigny, “The Right to Resist an Unlawful Arrest,” 

, 1129 (I) (1969) (“The Queen v. Tooley firmly established the
right to resist an unlawful arrest.” (citation omitted)).
and Report to the Special Court of Admiralty, Boston.23 In Tooley, a

constable arrested without a warrant a woman whom he suspected

of being a disorderly person. Three men armed with swords

intervened and attempted to liberate the woman, before and again

after the constable took her to and confined her in jail. Outside of

the jail, one of the armed men fatally wounded a man who was

helping to keep the woman in custody and to protect the constable.

A jury found, among other facts, that the woman was not behaving

in a disorderly manner when the constable arrested her. Based on

the jury’s findings of fact, the court determined that the constable

had no legal authority to arrest the woman and therefore was not

executing the duties of his office but was instead acting as “a

common oppressor.” Id. at 352. The court reasoned that an invasion

of the liberty of any person was an offense against the Magna Carta




     23 “Adams’ Argument and Report: Special Court of Admiralty, Boston,

June 1769,” Founders Online, National Archives (Original source: The Adams
Papers, Legal Papers of John Adams, vol. 2, Cases 31-62, ed. L. Kinvin Wroth
and Hiller B. Zobel. Cambridge, MA: Harvard University Press, 1965, pp. 322-
335),        accessed        on      August         5,        2020,       at
https://founders.archives.gov/documents/Adams/05-02-02-0008-0002-0007.
and the laws, in which “all the subjects of England” are concerned.

Id. at 352-353. Therefore, the court reasoned, the imprisonment of a

person without lawful authority, especially under “a colour of

justice,” “is a sufficient provocation to all people out of compassion”

to use force to rescue a person who is “unlawfully restrained of her

liberty.” Id. The fact that the fatal blow was struck after the arrest

of the woman was complete and she was confined in jail did not

lessen the provocation caused by her unlawful detention.

“[C]ertainly the putting her in prison,” the court reasoned, “and not

carrying her before a justice, as they should have done, is an

aggravation” of the provocation arising from the illegal arrest. Id.

The court ruled that the provocation caused by the woman’s

unlawful arrest and her continued unlawful detention reduced the

offense from murder to manslaughter.24



      24 See United States v. Travers, 

 (Brunn. Coll. C. 467,

2 Wheeler C. C. 490) (C.C.D. Mass. 1814) (“Homicide in resisting an arrest
substantially illegal, will, at most, amount only to manslaughter.”); see also
Francis Wharton, The Law of Homicide § 408, pp. 631-632 (3d ed. 1907) (“If an
officer, without lawful authority or just cause, arrests a person, there is an
illegal assault which such person has a right at once to resist and prevent; and
      As enunciated in Tooley, the common-law right to resist an

unlawful arrest acted to mitigate the defendant’s culpability for

murder. However, when the rule was applied in cases where the

defendant was charged with crimes other than homicide related to

resistance to an arrest, a finding that a person committed an

otherwise criminal act in the course of resisting an unlawful arrest

served as a complete defense to such criminal charges. See The King

v. Curvan, 168 Eng. Rep. 1213 (1 Mood. 132) (K. B. 1826) (Where a

man told a constable that the defendant insulted him, the constable

arrested the defendant without a warrant, and the defendant

attempted to escape and cut the face of a man who was helping the

constable, the defendant was entitled to an acquittal on a charge of

obstruction because the arrest was illegal.); The King v. 

 Eng. Rep. 1193 (1 Mood. 80) (K. B. 1825) (Where a man told a

constable that the defendant, his employee, left the man’s shop



if the death of the person seeking to make the arrest results from the resistance
by lawful measures, it is excusable homicide; and it has been held that, if
necessary, rather than submit, he may lawfully kill the person seeking to
arrest him.” (citing Coleman v. State, 

 (

) (1905), and
other states’ appellate decisions)).
without finishing his work and that the man suspected that the

defendant had taken the man’s tools, the constable arrested the

defendant without a warrant, and the defendant resisted the arrest

by stabbing the constable with a knife, the defendant’s assault was

excused entirely because the arrest was illegal.).

     Generally, under the common law, a person cannot be punished

for fleeing from or physically resisting an unlawful arrest or

escaping from an unlawful detention, so long as the person uses no

more force than is necessary to achieve such purpose. See United

States v. Di Re, 

 (

, 92 LE 210) (1948)

(“One has an undoubted right to resist an unlawful arrest, and

courts will uphold the right of resistance in proper cases. . . . If the

officer [had] no right to arrest, the other party might resist the

illegal attempt to arrest him, using no more force than was

absolutely necessary to repel the assault constituting the attempt to

arrest.”); Bad Elk v. United States, 

 (

, 44 LE 874) (1900) (At common law, “[i]f the officer [had] no right

to arrest, the other party might resist the illegal attempt to arrest
him, using no more force than was absolutely necessary to repel the

assault constituting the attempt to arrest.”); Prichard v. State, 

 (

) (1925) (“A citizen, by common law, and by

[Georgia] law, can resist an illegal arrest, and in resistance of such

arrest can use such force as may be necessary to prevent the same.”);

Graham v. State, 

 (3) (

) (1915) (“If no

more than proper force is used by the person sought to be illegally

arrested in resistance thereof, he is guilty of no offense.”); Coleman

v. State, 

 (

) (1905) (An unlawful arrest is

an assault that justifies the person “in breaking away, resisting, and

repelling force with force[,]” but the force that the person can “thus

rightfully use could only be proportionate to that exerted by [the

arresting officer], and sufficient to avoid the detention.”).25 “Every


      25 See also Napper v. State, 

 (1) (

) (1946)

(When an arrest is not authorized under the law, and, hence, is illegal, “[s]uch
an illegal arrest is in law an assault by the arresting officer upon the person
arrested. It constitutes legal justification for the employment by the person
arrested of force sufficient in amount to avoid an arrest and repel the assault.”);
Traylor v. State, 

 (1) (

) (1972) (A suspect
“had the right to leave, and to ignore or defy [an] arrest [for prowling, allegedly
in violation of a city ordinance], if said arrest was illegal.”); Smith v. State, 

 (1) (

) (1951) (“[T]he repulsion by proportionate
man . . . has a right to shun an illegal arrest by flight. The exercise

of this right should not, and would not, subject him to be arrested as

a fugitive.” Thomas v. State, 

 (2) (

) (1892).

An officer cannot

      attempt an illegal arrest . . . and then justify the attempt
      on the ground that the person sought to be arrested would
      not stand still until the arrest was made, but ran away to
      avoid it. To call this endeavoring to escape, and to treat it
      as legalizing what would otherwise be an illegal arrest,
      would be going round in a circle.


force of an illegal arrest does not constitute a crime.”); Perdue v. State, 

 (

) (1909) (“[W]hen an officer of the law . . . abuses
his authority and transcends the bounds thereof, the citizen is not required to
peacefully submit. The citizen has the right to maintain his liberty at all
hazards against any and all persons who attempt to invade it unlawfully,
taking care not rashly to use or resort to greater violence than is necessary to
its protection.” (citation and punctuation omitted)); Wharton, The Law of
Homicide, supra, § 409, p. 633 (“The degree of violence which is necessary to
resist an illegal arrest, or to regain one’s liberty when illegally restrained,
depends upon that used or attempted by the person making such arrest.”
(citing Alabama and Texas appellate decisions)); Chevigny, supra, 78 Yale L.J.
at 1137-1138 (“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. In the face of obvious injustice, one ought
not to be forced to submit and swallow one’s sense of justice. More importantly,
it is unconscionable to convict a man for resisting an injustice.”). But see Craig
Hemmens, Resisting Unlawful Arrest in Mississippi: Resisting the Modern
Trend, 

, 87 (2000) (“There are clear limits on the right [to
resist an unlawful arrest]. The rule simply permits the citizen to act at their
peril in challenging authority and protects them from punishment for
challenging unwarranted authority.”).
Id. at 205-206 (2). When an arrest is lawful, of course, the right to

resist an unlawful arrest is not pertinent.26

      Further, a person unlawfully arrested has a common-law right

to escape from detention following an unlawful arrest. See Francis

Wharton, The Law of Homicide § 411, p. 636 (3d ed. 1907) (Under

the common law, “[o]ne who makes an illegal arrest has no right to

detain the prisoner, and no authority to prevent his escape.” (citing

Curvan, 168 Eng. Rep. 1213, and Texas appellate decisions); 3 Joel

Prentiss Bishop, Criminal Procedure, or, Commentaries on the Law

of Pleading and Evidence and the Practice in Criminal Cases, § 162,

p. 88 (3rd ed. 1880) (A person “unlawfully arrested is justified in

escaping if he can; and an attempt to rearrest him will be equally

unlawful with the first arrest.” (citations omitted)). And “the fact

that no resistance or protest was made to the original arrest does



      26 See Grimes v. Burch, 

 (

) (1968) (“Where

one is confined by lawful authority it is his duty to submit until delivered by
due process of law.”); Mullis v. State, 

 (7) (

) (1943)
(Where an arrest is lawful, the person sought to be arrested has no right to
resist with force.); see also 3 Bishop, supra, § 159, p. 87 (“It is the duty of every
man to submit himself to a lawful arrest, and a forcible resistance is a crime.”).
not make it legal and deprive the person of the right to attempt to

regain his liberty.” Wharton, The Law of Homicide, supra, § 411, p.

636. See also Franklin v. Amerson, 

 (2) (

)

(1903) (Even if a suspect “did, at first, agree to go with the [officer]

to the police barracks, she had the right to withdraw her consent to

do so,” where the arrest was unlawful.). Thus, the common-law right

to resist an illegal detention continues after an unlawful,

warrantless arrest is accomplished. But, as explained above, the

right to resist an unlawful arrest or detention is not pertinent to

arrests under warrants, and resistance to detention after an arrest

warrant is issued or after a judicial determination of sufficient

grounds for the arrest would not be grounded in the common-law

right to resist an unlawful arrest. See Grimes v. Burch, 

 (

) (1968).

     In the context of the common-law right to resist an unlawful

arrest, we have found no controlling authority for distinguishing

between conduct that may harm an officer and conduct that may

damage government property. When a person uses injurious force
against an officer to resist being arrested, damage to government

property, such as the officer’s uniform being pierced by a bullet or a

blade, the officer’s radio being damaged during a struggle with the

arrestee, or even the officer’s patrol car being damaged, are

secondary concerns and less likely to result in separate criminal

charges. Notwithstanding the dearth of case law on point, because

the common-law right to resist an unlawful arrest or detention is

framed in terms of the proportionate use of force necessary to resist

the force used to arrest or detain a person, we conclude that the right

does not distinguish between the use of force against an arresting

officer’s person and the use of force against objects, including

government property.

    (c) Effect of Georgia’s constitutional and statutory law on the
common-law right to resist an unlawful arrest or detention.

     Having determined that the common law of England circa May

1776 recognized a right to resist an unlawful arrest or detention,

including a right to damage government property if necessary, as

explained above, we must also determine whether that common-law
right has been modified or displaced by Georgia’s constitutional or

statutory law. See Lathrop, 

 (II) (A) & n.9.

     First, we have found no authority in the Georgia Constitution

that expressly restricts the right to use the proportionate force

necessary to resist an unlawful arrest or escape from an unlawful

detention. The Georgia Constitution, in identical text to the Fourth

Amendment to the United States Constitution, provides that “[t]he

right of the people to be secure in their persons . . . against

unreasonable searches and seizures shall not be violated[.]” Ga.

Const. of 1983, Art. I, Sec. I, Par. XIII. Thus, an arrest, which is a

seizure of one’s person, must be reasonable. See Brown v. State, 

 (2) (a) n.6 (

) (2013) (Paragraph XIII is

generally applied in accord with the Fourth Amendment in the

context of this guarantee.). This provision of the Georgia

Constitution did not displace the common-law right by forbidding,

expressly or by necessary implication, the extrajudicial remedy of

using proportionate force to resist an unlawful arrest or escape from

an unlawful detention.
      Nor have we found any statutory authority that places

limitations on the common-law right to resist an unlawful arrest or

escape from an unlawful detention. The offense at issue in this case,

interference with government property, was enacted in 1968. See

Ga. L. 1968, p. 1317, § 1 (now codified as OCGA § 16-7-24 (a)). The

common-law right to resist an unlawful arrest or detention was a

longstanding part of Georgia law by then, and the Code section does

not expressly provide that it shall be no defense that the destruction,

damage, or defacement of government property was incidental to the

defendant’s exercise of the common-law right to resist an unlawful

arrest or detention. Consequently, we see no basis for concluding

that the Code section displaced the common-law right.27

      The Georgia statute that is perhaps most pertinent to the right

to resist arrest is OCGA § 16-10-24, defining the offense of




      27 See Undisclosed LLC v. State, 

 (2) (a) (

)

(2017) (“[A]lthough the common law may be amended [by statute], such
changes must be clear.”); Grange Mut. Cas. Co. v. Woodard, 

(2) (b) (

) (2017) (where plain language of statute did not expressly
or by necessary implication contravene common law principles, court could not
conclude that the statute displaced those common law principles).
obstruction. By its express terms, OCGA § 16-10-24 applies only

when the defendant obstructs or hinders a law enforcement officer

“in the lawful discharge of his or her official duties.” (emphasis

supplied). It is well settled that detaining or arresting a person

without authority to do so under the law does not constitute the

lawful discharge of the duties of a law enforcement officer, and,

therefore, one who resists an unlawful arrest or detention does not

commit the offense of obstruction. See Bacon v. State, 

 (

) (2018) (“A police officer is not discharging

his lawful duties when he is making an unlawful arrest, and a

person who resists an unlawful arrest does not hinder the officer in

the lawful discharge of his official duties. A person has the right to

resist an unlawful arrest.” (citations and punctuation omitted)).28 It


      28 See, e.g., Ewumi v. State, 

 (2) (a) (

) (2012) (Where an officer attempted an unlawful arrest and the defendant
struggled against the officer and allegedly struck the officer with his elbows,
the defendant was justified in resisting the attempted arrest with all force that
was reasonably necessary to do so, and the defendant’s attempt to resist that
arrest could not form the basis of a conviction for obstruction because the
officer was not engaged in the lawful discharge of official duties.); Woodward
v. State, 

 (1) (

) (1995) (Where there was
no evidence that a visitor to the sheriff’s office committed the misdemeanor
follows that OCGA § 16-10-24 did not displace the common-law right

to resist an unlawful arrest.

      Similarly, under Georgia criminal law, a person commits the

offense of escaping from custody or confinement, prior to conviction

only if the escape is from “lawful custody or . . . lawful

confinement[.]” OCGA § 16-10-52 (a) (emphasis supplied).29 This


offenses of criminal trespass or disorderly conduct in an officer’s presence, her
arrest was not authorized and the officer was not in the lawful discharge of his
duties when he arrested the defendant. Because there was no evidence showing
that the defendant’s arrest was lawful, she “had the right to resist with all
force necessary for that purpose” and her conviction for the offense of
obstruction of a law enforcement officer was not authorized by the evidence.
(citation and punctuation omitted)); see also Long v. State, 

 (1) (

) (2003) (“[A]n argument that the arrest was
unlawful does not state an affirmative defense to a charge of obstruction.
Rather, that argument is an assertion that the state has failed to prove an
essential element of the offense — a lawful arrest.”).
       29 OCGA § 16-10-52 (a) provides:

          A person commits the offense of escape when he or she:
              (1) Having been convicted of a felony or misdemeanor or of
       the violation of a municipal ordinance, intentionally escapes from
       lawful custody or from any place of lawful confinement;
              (2) Being in lawful custody or lawful confinement prior to
       conviction, intentionally escapes from such custody or
       confinement;
              (3) Having been adjudicated of a delinquent act or a juvenile
       traffic offense, or as a child in need of services subject to lawful
       custody or lawful confinement, intentionally escapes from lawful
       custody or from any place of lawful confinement;
              (4) Being in lawful custody or lawful confinement prior to
       adjudication, intentionally escapes from such custody or
Code section, therefore, does not affect the common-law right to

resist an unlawful detention by fleeing or escaping.

      Another criminal offense relevant to detentions and arrests is

OCGA § 16-5-41 (a), which provides: “A person commits the offense

of false imprisonment when, in violation of the personal liberty of

another, he arrests, confines, or detains such person without legal

authority.” (Emphasis supplied.) See Holliday v. Coleman, 

 (

) (1913) (citing the predecessor provision in

Penal Code of 1910, § 106). A law enforcement officer who detains or

arrests a person without legal authority may be guilty of the offense

of false imprisonment. See Stone v. Nat. Surety Corp., 57 Ga. App.




      confinement; or
            (5) Intentionally fails to return as instructed to lawful
      custody or lawful confinement or to any residential facility
      operated by the Georgia Department of Corrections after having
      been released on the condition that he or she will so return;
      provided, however, such person shall be allowed a grace period of
      eight hours from the exact time specified for return if such person
      can prove he or she did not intentionally fail to return.
See also OCGA § 16-10-53 (“A person who knowingly aids another in escaping
from lawful custody or from any place of lawful confinement shall, upon
conviction thereof, be punished by imprisonment for not less than one nor more
than five years.”).
427, 429-431 (2) (

) (1938).30 A victim of false

imprisonment has the right to defend against the violation of his or

her personal liberty. OCGA § 16-5-41 (a), therefore, did not displace

the common-law right to resist an unlawful detention or arrest. The

Georgia General Assembly also recognized false imprisonment as a

tort, which subjects the tortfeasor to liability for the victim’s

damages. See OCGA § 51-7-20 (“False imprisonment is the unlawful

detention of the person of another, for any length of time, whereby

such person is deprived of his personal liberty.” (emphasis

supplied.));31 see also Holliday, 

 (citing the

predecessor statute in Civil Code of 1910, § 4447). Like the criminal

offense, the tort of false imprisonment is framed in terms of an

unlawful detention.32 See Williams v. Smith, 

, 713-


      30 See also Robert E. Cleary, Jr., Kurtz Criminal Offenses and Defenses

in Georgia, False Imprisonment Crimes (2020 ed.).
      31 See also OCGA §§ 51-7-60 (detentions by store owners and operators

of persons suspected of shoplifting); 51-7-61 (same); 51-7-62 (detentions by
movie theater owners and operators of persons suspected of film piracy).
      32 See generally Hemmens, supra, 2 Cal. Crim. L. Rev. at 86 (“An

unlawful arrest is a form of and the tort of false imprisonment: unwanted
touching, deprivation of liberty. The seizure of a person by an officer without
legal justification is a serious affront to personal liberty and the right of
privacy.”).
714 (2) (

) (1986) (An action to recover damages for false

imprisonment requires proof of a detention “and the unlawfulness

thereof” — in the case of an arrest without process, that the

warrantless detention was not “legally authorized under the

circumstances.” (citation and punctuation omitted)). But it is a

defense to a civil claim for false imprisonment that the detention “is

by virtue of a warrant” that is procured, issued, or executed by the

defendant in good faith, which “must be determined from the

circumstances.” OCGA § 51-7-21.33 In the case of an unlawful,

warrantless arrest, as in this case, OCGA §§ 51-7-20 and 51-7-21 are

also consistent with the common-law right to resist.

     Although the right to resist an unlawful arrest or detention is

often considered a form of justification, Georgia’s justification


     33 OCGA § 51-7-21 provides in full:

           If imprisonment is by virtue of a warrant, neither the party
     who procured the warrant in good faith nor the officer who
     executed the warrant in good faith shall be liable for false
     imprisonment even if the warrant is defective in form or is void for
     lack of jurisdiction. In such cases, good faith must be determined
     from the circumstances. A judicial officer issuing a warrant in good
     faith shall not be liable for false imprisonment, provided that,
     when he has no jurisdiction, there shall be a presumption against
     such officer's good faith.
statutes, set out in Title 16, Chapter 3, Article 2, also do not supplant

the common-law rule. Generally, “[t]he fact that a person’s conduct

is justified is a defense to prosecution for any crime based on that

conduct.” OCGA § 16-3-20. A person can claim the defense of

justification, for example, against a charge based on acts performed

in the course of making an arrest, but only in the case of a lawful

arrest. See OCGA § 16-3-20 (4) (The defense of justification can be

claimed “[w]hen the person’s conduct is reasonable and is performed

in the course of making a lawful arrest[.]”). In its several sections,

Article 2 provides that the defense of justification can be claimed to

protect a broad range of interests, such as protecting one’s self or

others from bodily harm, see OCGA § 16-3-21; repelling another’s

unlawful intrusion into a habitation, see OCGA § 16-3-23; avoiding

criminal liability for conduct wrongfully induced by a government

officer or employee, see OCGA § 16-3-25; fulfilling one’s duties as a

government officer or employee, see OCGA § 16-3-20 (2); and

exercising the right to reasonably discipline one’s child, see OCGA §

16-3-20 (3). The catchall provision in OCGA § 16-3-20 (6), which
provides that the defense of justification can be claimed “[i]n all

other instances which stand upon the same footing of reason and

justice as those enumerated in” Article 2, shows that the specific

provisions are not exclusive. To the extent a statutory defense of

justification is at issue in this case, it is not self-defense under

OCGA § 16-3-21 (a),34 but an unenumerated defense under the

catchall provision. See Glenn, 350 Ga. App. at 16 (“The issue for this

Court is whether the defense of justification under the catchall

section of OCGA § 16-3-20 (6) is authorized by the evidence in this

case.”).35 Although the Code provides little guidance regarding when


      34 See Hack v. State, 

 (

) (1983), which was

cited by the Court of Appeals majority in this case. Glenn, 350 Ga. App. at 16.
In Hack, an arrestee damaged two patrol cars and was charged with two counts
of criminal damage to property. The Court of Appeals noted that the arrestee’s
argument on appeal was “that he was illegally arrested, that he had the right
to resist and, as this resistance was self-defense, the trial court erred in failing
to give his requested charges on these issues.” Hack, 

-930 (6)
(emphasis supplied). Given this framing, the Court of Appeals did not address
the common-law right to resist arrest but held that the arrestee “was not
resisting arrest” when he damaged the patrol cars, as he claimed, because the
statutory defense of justification in defense of self, OCGA § 16-3-21 (a),
expressly provides a defense only for using force against another person. Hack,
therefore, provides no guidance on the application of the common-law right to
resist an unlawful arrest, particularly when the resistance results in charges
relating to property damage.
       35 See Dugger v. State, 

 (9) (c) (

) (2015) (A
a defense stands upon the same footing of reason and justice as those

enumerated in Article 2, in light of the broad range of interests

protected in the enumerated justification defenses, we conclude that

a jury could find that repelling an unlawful invasion of one’s liberty

with proportionate force causing damage to property does stand on

such footing. See Tarvestad v. State, 

 (

) (1991) (A jury could have found that the defendant’s decision to

drive without a license in order to seek medical help for his wife and

their soon-to-be-born child stands on the same footing of reason and

justice as the enumerated justification defenses, and the defendant




jury instruction based on OCGA § 16-3-20 (6) “is appropriate only if the
defendant’s conduct is not encompassed by one of the specifically enumerated
circumstances for claiming a defense of justification, but still might be justified
because it stands upon the same footing of reason and justice as those
enumerated” in Article 2, and therefore a jury instruction covering the catchall
provision was not warranted where the defendant claimed self-defense.
(citation and punctuation omitted)); Allen v. State, 

 (9) (

) (2015) (A jury instruction on justification under OCGA § 16-3-20 (6)
was not warranted where there was no evidence that a person threatening the
defendant’s family was in a position to harm his family when the defendant
killed the victim at that person’s insistence and therefore his claim of
justification did not stand on the same footing of reason and justice as
enumerated defenses that contemplate the use of force in the face of a current
or imminent threat.).
was therefore entitled to his requested jury instruction on the

defense of justification under OCGA § 16-3-20 (6).).36 Consequently,

we see no basis for concluding that any Code section in Article 2

displaced the common-law right.

      Although many states have limited or eliminated the common-

law right to resist an unlawful arrest or detention,37 after reviewing


      36  Under different circumstances, the Court of Appeals has found a
justification defense under the catchall provision for the charge at issue in this
case, interference with government property, based on damage to a patrol car
by a detainee. See Moore v. State, 

 (1) (

)
(1998). The Court of Appeals held that the defendant was entitled to a jury
instruction on justification under the catchall provision because some evidence
supported his claim that he tried to kick out a window when he was confined
inside the patrol car because he was in respiratory distress resulting from an
allergic reaction to pepper spray and needed air. 

       37 Section 5 of the Uniform Arrest Act (1941), “Resisting Arrest,”

provides:
       If a person has reasonable ground to believe that he is being
       arrested by a peace officer, it is his duty to refrain from using force
       or any weapon in resisting arrest regardless of whether or not
       there is a legal basis for the arrest.
A version of Section 5 is in effect in at least eight states. See Ala. Code § 13A-
3-28; Cal. Penal Code § 834a; 

; 

-
5229; 

; 

; 

; 

.
       At least 13 states have made it at least a misdemeanor to use force in
resisting an arrest by a peace officer without limitation to resisting lawful
arrests, although some require that the arrest be under color of the officer’s
official authority, or words to that effect. See Ak. Stat. § 11.56.700; 

 (a); 

 (1) (a); Del. Code Ann. Tit.
11, § 1257 (b); 

 (1); 

-
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




1026 (1); Mass. Gen. Laws Ann. Ch. 268, § 32B; 

; 

; N.J. Stat. Ann. § 2C:29-2; 

(B); R.I. Gen. Laws Ann. § 12-7-10 (a); 

; 22-11-5.
        Section 3.04 (2) (a) (i) of the Model Penal Code (1961) provides that a use
of force is not justifiable under the section, which provides that the use of force
in self-protection is justifiable, “to resist an arrest that the actor knows is being
made by a peace officer, although the arrest is unlawful[.]” A version of § 3.04
(2) (a) (i) is in effect in at least 13 states. See Az. Rev. Stat. Ann. § 13-404 (b)
(2); 

 (1); Conn. Gen. Stat. Ann. § 53a-23; Del. Code
Ann. Tit. 11, § 464 (d); 

 (1); 720 Ill. Comp. Stat. Ann.
§ 5/7-7; Me. Rev. Stat. Ann. Tit. 17-A, § 108 (1-A); 

;

 (2); N.C. Gen. Stat. Ann. § 15A-401 (f); 

 (1); 18 Pa. Stat. Ann. § 505 (b) (1) (i); 

. See also 

 (c) (“The use of force to
resist an arrest or search is justified: (1) if, before the actor offers any
resistance, the peace officer . . . uses or attempts to use greater force than
necessary to make the arrest or search; and (2) when and to the degree the
actor reasonably believes the force is immediately necessary to protect himself
against the peace officer’s . . . use or attempted use of greater force than
necessary.”); 38.03 (b) (“It is no defense to prosecution [for obstruction of a law
enforcement officer] that the arrest or search was unlawful.”); Craig Hemmens
& Daniel Levin, “Not a Law at All”: A Call for a Return to the Common Law
Right to Resist Unlawful Arrest, 

, 45-46 (1999) (The
“fundamental interest in personal liberty is not recognized by the modern trend
abrogating the right to resist unlawful arrest. Instead of continuing the
common law tradition of favoring individual rights over state authority,
contemporary law favors the statist values of order, process, and power, with
little regard for whether such power is exercised lawfully.”).
interference with government property.38 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.

     2. Glenn contends that he did not commit the felony offense of

interference with government property because he damaged the

patrol car only in the course of resisting the officers’ use of force to

unlawfully detain him and used no more than proportionate force

and, therefore, that the Court of Appeals erred in affirming the




     38 We note that the Council of Superior Court Judges continues to include

a jury instruction on the right in the pattern jury instructions the Council
publishes, as follows: “One upon whom an illegal or unlawful arrest is being
made has the right to resist the arrest with such force as is reasonably
necessary to prevent the arrest.” Georgia Suggested Pattern Jury Instructions,
Vol. II: Criminal Cases, § 3.16.41 (4th ed. 2020).
revocation of his probation.

     [The appellate court] will not interfere with a [probation]
     revocation unless there has been a manifest abuse of
     discretion on the part of the trial court. In terms of the
     sufficiency of the evidence, [the appellate court] will
     affirm the judgment of revocation if the record includes
     some competent evidence to show that the defendant
     violated the terms of his probation in the specific manner
     charged, notice of which must be provided in writing
     before the probation revocation hearing. However, [the
     appellate court reviews] questions of law de novo.

Caldwell v. State, 

 (

) (2014)

(citations and punctuation omitted).

     Convictions for interference with government property where

the defendant damaged a patrol car in the course of resisting an

arrest have been affirmed on appeal in cases also affirming

convictions of obstruction based on the same conduct.39 The holding

that a conviction of obstruction was warranted in those cases means

that the arrest in each case was lawful, so the property-damaging

conduct by definition was not in the exercise of the right to resist an


     39 See Helton v. State, 

 (1) (

) (2007);

Meeker v. State, 

 (1) (

) (2006); Granville v.
State, 

 (1) (

) (2006); Weldon v. State, 

 (1) (

) (2003).
unlawful arrest. These cases therefore do not support a conviction

for interference with government property in the course of

resistance to an unlawful arrest.

     As recounted above, the trial court ruled that the State failed

to establish by a preponderance of the evidence that Glenn’s

warrantless arrest for loitering and prowling was in the lawful

discharge of the officers’ official duties. The State did not seek review

of the trial court’s ruling that Glenn’s warrantless arrest for

loitering and prowling was unlawful. Thus, we take that

determination as a given and express no opinion whether that

determination was correct. Because the officers were not in the

lawful discharge of their duties when they handcuffed Glenn and

forced him into the patrol car, he did not commit the offense of

obstruction. Despite ruling that Glenn’s arrest was unlawful, the

trial court determined that Glenn committed the offense of

interference with government property, reasoning that he damaged

the patrol car “outside the bounds” of the period when he had any

right to forcibly resist the arrest. That is, the trial court concluded
that, once Glenn was handcuffed and confined in a patrol car, he was

obligated to submit to the detention and wait until he could contest

the validity of the arrest and detention in court.

      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.40 Thus, the trial court cut short its analysis when it failed to

consider whether Glenn used force to resist the officers’ actions that


      40 In holding that “Glenn’s damage to the vehicle was not in response to

an immediate need to resist an unlawful arrest, but rather was an intentional
act occurring some time after he was detained,” Glenn, 350 Ga. App. at 16-17
(emphasis in original) the Court of Appeals majority cited Hack, 

 (6) (“Here the defendant was not using force against another person and
his resistance did not occur until some time after his alleged unlawful arrest.”).
As explained in footnote 34, supra, however, the court’s holding in Hack was
limited to resistance in self-defense under OCGA § 16-3-21 (a), as distinct from
the common-law right to resist an illegal arrest or detention.
was proportionate under the circumstances. This determination is

not for this Court, or for the Court of Appeals, to make in the first

instance.41 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.

     Judgment reversed, and case remanded with direction. All the
Justices concur, except Warren, J., not participating.


                           Decided October 5, 2020.

      Certiorari to the Court of Appeals of Georgia ― 

.
     Benjamin A. Pearlman, for appellant.
     Kenneth W. Mauldin, District Attorney, Brian V. Patterson,
Assistant District Attorney, for appellee.


      41 See Yates v. State, 

 (3) (

) (1907) (evidence

presented a jury question whether the defendant shot a marshal who was
trying to arrest him in a spirit of malice toward the marshal or whether he shot
the marshal simply to prevent the marshal from unlawfully arresting him or
in self-defense); see also Walker v. State, 

 (

)
(1933) (“Whether or not the defendant shot in order to protect himself against
the illegal arrest that was about to be perpetrated upon him was, in our
opinion, a jury question.”); Jenkins v. State, 

 (

) (1907)
(syllabus of the court) (Whether a person whose rights are invaded by an
unlawful arrest “is guilty of any offense depends upon the facts of the
particular case. If the force of resistance is not in excess of the force of invasion,
and is used solely for the purpose of prevention, no offense is committed.”).