Government of Virgin Islands v. Duvergee, 71-1797.

• Decision Date: 06 March 1972
• Docket Number: No. 71-1797.,71-1797.
• Citation: 456 F.2d 1271
• Parties: GOVERNMENT OF THE VIRGIN ISLANDS v. James DUVERGEE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

456 F.2d 1271 (1972)

GOVERNMENT OF THE VIRGIN ISLANDS v. James DUVERGEE, Appellant.

No. 71-1797.

United States Court of Appeals, Third Circuit.

Argued January 27, 1972.

Decided March 6, 1972.

As Amended April 5, 1972.

Verne A. Hodge, Charlotte Amalie, St. Thomas, V. I., for appellant.

Carl S. Rauh, First Asst. Atty. Gen., Charlotte Amalie, St. Thomas, V. I., for appellee.

Before SEITZ, Chief Judge and ALDISERT and GIBBONS, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

Appellant Duvergee appeals from a sentence imposed by the District Court of the Virgin Islands upon his conviction, in a non-jury trial, of assault in the third degree. 14 V.I.C. § 297. He was charged originally with assault with intent to commit murder, 14 V.I.C. § 295(1), but was found guilty of the lesser included offense. The incident giving rise to the charge took place on August 6, 1970 when a police officer, summoned by a neighbor after an altercation with Duvergee, attempted to arrest him for disturbing the peace. The altercation with the neighbor did not take place in the officer's presence, and no warrant had issued. At trial the government contended that Duvergee had used offensive language in the officer's presence, a misdemeanor under 14 V.I.C. § 1021(6). Witnesses' versions of the events of August 6 varied considerably, and the court, relying upon the version of the one witness found to be most disinterested and credible, found that Duvergee had not, prior to his arrest, violated 14 V.I.C. § 1021(6). The court correctly concluded, therefore, that in making the arrest the police officer was acting illegally. See 5 V.I.C. § 3562; People v. Carrero, 3 V.I. 177, 139 F.Supp. 275 (D.C.V.I.1955).

Duvergee's version of the events was that in effecting the illegal arrest the officer, after Duvergee had merely shrugged off the officer's hand, beat him with a club. He thereupon, acting in self defense to the officer's assault, drew a knife. In the course of the struggle the officer was stabbed and Duvergee was shot. The version of the police officer differed considerably. The version which the court found to be credible was that of the witness Erica Peets, who testified that the police officer told Duvergee he was under arrest for disturbing the peace, and that before the police officer struck him Duvergee took a knife from his pocket, took the policeman's baton in his hand, and assaulted the policeman. The policeman then retreated and fired two shots in the ground. Duvergee sprang toward the policeman and both tumbled to the ground. The court expressly found that the first show of force was Duvergee's assault with the knife.

Duvergee relying on Bad Elk v. United States, 177 U.S. 529, 534-535, 20 S.Ct. 729, 44 L.Ed. 874 (1900), United States v. Di Re, 332 U.S. 581, 594, 68 S.Ct. 222, 92 L.Ed. 210 (1948), Basista v. Weir, 340 F.2d 74, 82 n. 7 (3d Cir. 1965) and on the dissenting opinion of Justice Douglas in Wainwright v. New Orleans, 392 U.S. 598, 610, 613, 88 S.Ct. 2243, 20 L.Ed.2d 1322 (1968), urges that he cannot be convicted of an assault for resisting an unlawful arrest. The government urges that we should adopt for the Virgin Islands the rule of Section 304(2) (a) (1) of the American Law Institute Model Penal Code (1958) which denies the right to resist an arrest which the resistor knows is being made by a peace officer even though the arrest is unlawful. See United States v. Heliczer, 373 F.2d 241, 246 n. 3 (2d Cir. 1967). The statutes of the Virgin Islands governing arrest are silent on the subject. 5 V.I.C. §§ 3561-3566.

In view of the finding of fact made by the district court, however, the case does not require a decision on the issue of whether a citizen can ever resist an unlawful arrest by use of reasonable force. The authority of Bad Elk v. United States, supra, on that issue may now be questionable in view of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). But even Bad Elk is not authority for the proposition that unreasonable force may be used in resisting an unlawful arrest. The court there stated the rule:

"If the officer have no right to arrest, the other party might resist the illegal attempt to arrest

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