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February 24, 1976

FREDERICK B. PLOWFIELD, Sheriff of Lancaster County

The opinion of the court was delivered by: HUYETT


 Petitioner Jay Kilheffer, who stands convicted in the courts of Pennsylvania of obstructing an officer in the execution of process, 18 P.S. § 4314 (Act of June 1939, P.L. 872, § 314, as amended), *fn1" superceded by 18 P.S. § 5104 (Act of December 1972, P.L. 334, § 1), has filed a counseled petition for habeas corpus pursuant to 28 U.S.C. § 2254. *fn2" The criminal charges against petitioner stem from a confrontation that occurred between a gathering of youths and the local police in a public park in Lancaster, Pa., on the evening of July 10, 1971. Two patrolling Lancaster police officers testified that they initially observed a group of youths in the park making a considerable amount of noise. Returning to the park a short time later they saw the same group cornering a park officer in a menacing manner. The officers ordered the crowd to disperse, at which time they observed the petitioner counting cadence as the members of the crowd returned to their cars. Several police officers further testified that Kilheffer and several others filled the night air with insults and obscene language, primarily directed at the police officers. When it appeared to the police that petitioner was defying their order to leave the park, he was placed under arrest for disorderly conduct. With a police officer gripping each of his arms, Kilheffer, attempting to break the officers' grip on his arms, forcefully shrugged his body and in so doing he fell to the ground. The officers then struck petitioner several times with their nightsticks in an effort to overcome his kicking and thrashing, and, having subdued him, they placed him in the police car.

 For reasons that do not appear in the record no charges appear to have been lodged against Kilheffer for violating the local disorderly conduct ordinance. He was, however, indicted for obstructing an officer in the execution of process and for assault and battery. He was tried by a jury and convicted only on the former count. An appeal to the Superior Court failed, and the Pennsylvania Supreme Court denied allocatur.

 Kilheffer's petition alleges three violations of his federal constitutional rights in support of federal habeas relief. The only colorable claim presented is that his arrest for disorderly conduct under the Lancaster ordinance violated his First Amendment rights to freedom of speech and assembly, either because the ordinance is void on its face for overbreadth and vagueness or because his conduct itself was within the protected limits of the First Amendment. The state having failed to pursue the disorderly conduct charge, such a claim will not sustain federal habeas jurisdiction in this case because, even if his arrest is thereby rendered unlawful, he is not "in custody" as a consequence of that violation of his federal constitutional rights. 28 U.S.C. § 2241(c)(3). Kilheffer is "in custody" as a consequence of his conviction for obstructing an officer in the execution of process -- for resisting arrest. In order to secure relief, he must prove that his present state custody for resisting arrest violates his federal constitutional rights.

 Such a construction of the federal habeas statute is beyond our power. The fact that the state's original custody was unlawful does not of itself confer upon the federal courts the power to grant the writ. It is petitioner's present status in state custody that we must focus upon. As has been stated, Kilheffer's present "custody" is a product of his conviction for resisting arrest. The issue then is whether, assuming petitioner's arrest was unlawful, one has a federal constitutional right to resist an unlawful arrest. *fn3" We agree with the only reported decision which purports to answer that question that at least absent unusual circumstances there exists no such federal constitutional right. United States ex rel. Horelick v. Criminal Court, 366 F. Supp. 1140 (S.D.N.Y. 1973).

 One had an undoubted common law right to resist an unlawful arrest. Indeed the Supreme Court has on two occasions referred to the existence of such a right in dictum. John Bad Elk v. United States, 177 U.S. 529, 44 L. Ed. 874, 20 S. Ct. 729 (1900); United States v. Di Re, 332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210 (1948). Yet the right to resist unlawful arrest has undergone marked erosion in recent years. Numerous state appellate court decisions *fn4" and legislative enactments *fn5" have abrogated in its entirety the common law right to resist unlawful arrests. The Court of Appeals for the Third Circuit, holding that one has no right to resist the execution of a search warrant that is subsequently held invalid, expressly reserved decision on whether there was a right to resist an unlawful arrest. United States v. Ferrone, 438 F.2d 381, 390 n.19 (3d Cir. 1971). Striking a balance between the individual's interest in being secure from unlawful government intrusions and society's interest in the orderly resolution of disputes, as did the Ferrone court, we discern no meaningful distinction between the search warrant in Ferrone and the arrest here. One who suffers the imposition of an unlawful police search has the assurance that any evidence so acquired is rendered inadmissible in a subsequent criminal trial by the exclusionary rule. Likewise, any incriminating evidence obtained by exploiting an illegal arrest will be excluded in a subsequent criminal trial. Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975). And in any event damage remedies are available in the federal courts for violations of constitutional rights stemming from either an unlawful search or arrest. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971); Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961); Beightol v. Kunowski, 486 F.2d 293 (3d Cir. 1973); Fisher v. Volz, 496 F.2d 333 (3d Cir. 1974).

 Weighing these significant protections afforded citizens against unlawful government intrusions into one's privacy against the social cost of condoning resistence to arrest, the balance ordinarily tips in favor of discarding the remnants of the common law right to resist unlawful arrest. Recognizing a blanket right to resist unlawful arrests would undermine the weighty interest of society in both the prevention of unnecessary violence and the orderly resolution of legal disputes. Vesting an arrestee with the right to resist quite clearly invites the police to respond with force and frequently the violence would entail the use of deadly weapons, a circumstance that ought never be encouraged.

 The common law right to resist flourished in an era when weapons were less lethal and the consequences of an arrest fracas were less likely to be calamitous. Moreover, the right to resist developed in an era when procedural safeguards for the arrested were less elaborate. Given the recent flowering of the concept of due process of law, including the availability of reasonable bail, Stack v. Boyle, 342 U.S. 1, 96 L. Ed. 3, 72 S. Ct. 1 (1951), the right to court-appointed counsel at an early stage of the criminal process, Coleman v. Alabama, 399 U.S. 1, 26 L. Ed. 2d 387, 90 S. Ct. 1999 (1970), and the right to a prompt judicial determination of probable cause following arrest, Gerstein v. Pugh, 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975), the arrestee who feels the police have overstepped their bounds is given fair assurance that the impact of the concededly onerous imposition of unlawful arrest will be minimized. Under such circumstances courts and legislatures have been understandably reluctant to recognize the former sweep of the common law right to resist unlawful arrest. *fn6"

 We need not decide whether the demise of the common law right to resist unlawful arrest signals the adoption of a per se rule that under no circumstance does an arrestee have the right to resist. It may be that the circumstances surrounding an unlawful arrest suggest that the police have so flagrantly abused their authority in arresting persons for engaging in indisputably lawful activity, and that the resistance was so carefully calculated as to render negligible the risk that physical force need be resorted to, that a right to resist should be recognized. Indeed the Third Circuit in Ferrone seems to leave open the possibility that the ordinary resisting arrest case could be treated differently from the case where:

"the circumstances . . . would be such a provocation to a reasonable man that the seriousness of the offense of resistance ought to be mitigated as a result of such provocation."

 438 F.2d at 390 n.19. Whatever are the dimensions of possible exceptions to the general rule of no right to resist unlawful arrests, we hold that the conduct of the arresting officers in this case falls comfortably within the range of situations where an arrestee can be expected to yield to arrest and test its lawfulness in subsequent judicial proceedings.

 Kilheffer, of course, cannot rest his case on establishing the existence of a common law right to resist arrest, since a prerequisite to federal habeas relief is proof that state custody is in violation of the federal constitution. A state is free to choose, as Pennsylvania apparently has, see Commonwealth v. Beam, 227 Pa. Super. 293, 324 A.2d 549 (1974), any approach to the issue of resisting unlawful arrest so long as that choice does not impinge on federal constitutional rights. The parties have referred us to no decision in which a court has recognized a constitutional right to resist unlawful arrest; the only court to consider the question rejected the argument. Horelick, supra, at 1150-52. Yet the principle that there is a limited constitutional right to resist unlawful arrests is not without support. One commentator has proposed that there is a constitutional right to resist patently unlawful arrests, on the theory that recognition of such a right is essential to the vindication of other constitutional rights including, in particular, the First Amendment. Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128 (1969). In the context of peaceful political demonstrations he notes, for example, that police could successfully circumvent the rule that persons who are unconstitutionally arrested for such conduct may not be convicted by unlawfully arresting them anyway and prosecuting those who offer any resistance. However, assuming, as we have, that Kilheffer's arrest was unlawful, there appears no basis in the record for finding that the arrest was patently illegal. Recognizing that the jury must have resolved most if not all credibility disputes in favor of the police officers, there is ample evidence to satisfy us that the decision to order the crowd of youths to disperse was within the range of allowable police discretion and certainly was not patently illegal. The police officers further had probable cause ...

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