State v. Hobson, No. 96-0914-CR

CourtUnited States State Supreme Court of Wisconsin
Citation218 Wis.2d 350,577 N.W.2d 825
Docket NumberNo. 96-0914-CR
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. Shonna HOBSON, Defendant-Respondent.
Decision Date27 May 1998

Page 825

577 N.W.2d 825
218 Wis.2d 350
STATE of Wisconsin, Plaintiff-Appellant,
v.
Shonna HOBSON, Defendant-Respondent.
No. 96-0914-CR.
Supreme Court of Wisconsin.
Argued Dec. 15, 1997.
Decided May 27, 1998.

Page 826

For the plaintiff-appellant the cause was argued by Gregory M. Posner-Weber, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

For the defendant-respondent there was a brief by Keith A. Findley, John A. Pray and University of Wisconsin Law School, Madison and oral argument by Keith A. Findley.

Amicus Curiae was filed by Suzanne Hagopian, Assistant State Public Defender, Madison, for the Office of the State Public Defender.

Amicus Curiae was filed by Dean A. Strang and Fitzgerald & Strang, S.C., Milwaukee for the Wisconsin Association of Criminal Defense Lawyers.

¶1 JANINE P. GESKE, Justice.

The question certified to this court is whether Wisconsin recognizes a common law right to forcibly resist an unlawful arrest. In this case, the State does not challenge the circuit court's determination that Beloit police officers lacked probable cause to arrest the mother of a five-year-old boy after she refused to allow officers to speak to her son about a stolen bicycle. When the officers decided to arrest the mother for obstruction of an officer, the mother resisted and struck one of the officers. This action resulted in her arrest for an additional charge of battery to a peace officer. On certification the State, while denying that a common law privilege to forcibly resist an unlawful arrest has ever existed in Wisconsin, asks us to abrogate 1 that privilege and also seeks reversal of the order dismissing the battery charge.

¶2 We conclude, based on the common law in this state, that Wisconsin has recognized a privilege to forcibly resist an unlawful arrest in the absence of unreasonable force. However, based upon public policy, we now decide to abrogate that common law affirmative defense. Our decision to abrogate has prospective application only. We therefore affirm the order of the circuit court dismissing the battery charge against Ms. Hobson.

I. FACTS AND PROCEDURAL HISTORY

1. Facts underlying charges of obstruction and disorderly conduct

¶3 The facts recited herein are taken from the complaint and testimony at the hearing

Page 827

on the motion to dismiss. The defendant, Ms. Shonna Hobson was the mother of a five-year-old boy. On July 31, 1995, a member of the Beloit Police Department, Officer Nathan Shoate, went to a home address to interview a child suspected in a bike theft. Another juvenile had reported to Officer Shoate that he had seen Ms. Hobson's son riding the juvenile's sister's stolen bicycle. When Officer Shoate reached the address reported by the juvenile, he saw Ms. Hobson's son near a bicycle. When the officer got out of his car, he saw Ms. Hobson's son run upstairs.

¶4 The juvenile who had reported the theft was in Officer Shoate's car at the time. The juvenile pointed out Ms. Hobson's son as the person he had seen on the stolen bicycle. Officer Shoate met Ms. Hobson at her home, and told her that her son was suspected in a bike theft. Specifically, the officer told Ms. Hobson that her son was seen on a stolen bike and that the officer would need to talk to the boy about where the boy got the bike.

¶5 Ms. Hobson told her son to go in the house. She then told Officer Shoate that her son was not on a bicycle, and that he had his own bike. Ms. Hobson, according to the officer, became a bit irritated, and refused to allow Officer Shoate to speak with her son. She said that her son did not do anything, and had not stolen any bike. Officer Shoate then told Ms. Hobson that he would have to take her son to the police station to be interviewed about the stolen bicycle, and gave Ms. Hobson the opportunity to go along to the station. She replied that the officer was not taking her son anywhere.

¶6 At that point in the conversation, because of Ms. Hobson's resistance, Officer Shoate called for backup police officers to assist him. Shortly thereafter, Officers Eastlick, Anderson and Alisankus arrived at the Hobson address. According to Officer Eastlick's report, when the three backup officers arrived Ms. Hobson was standing with her son on the front steps of her residence yelling, swearing and saying "bullshit" in a very loud voice. Officer Shoate then repeated to Ms. Hobson that they had to take her son to the police station, to which Ms. Hobson again replied "You aren't taking my son anywhere." Officer Shoate then advised Ms. Hobson that she was under arrest for obstructing an officer.

2. Facts giving rise to charge of resisting an officer

¶7 Officers Eastlick and Alisankus proceeded to attempt to handcuff Ms. Hobson. When Officer Eastlick tried to take hold of Ms. Hobson's arm and advise her that she was under arrest, Ms. Hobson pushed the officer away. Ms. Hobson became combative and struck Officer Alisankus across the face. Ms. Hobson then was taken to the ground by other officers. Both Officers Shoate and Eastlick reported that once she was on the ground, Ms. Hobson continued to fight with Officer Alisankus and kicked at Officer Eastlick.

3. Facts giving rise to charge of resisting arrest and

battery to a peace officer

¶8 On August 1, 1995, Ms. Hobson was charged with obstructing an officer, disorderly conduct, and resisting an officer. 2 In an amended complaint filed August 15, 1995, the prosecutor added a fourth count. The amended complaint also charged Ms. Hobson with the felony of causing intentional bodily harm (battery) to a peace officer. 3 The amended complaint included a report by Officer Alisankus, stating that he assisted other officers in arresting Ms. Hobson for obstructing at her residence. He reported that Officer Shoate advised Ms. Hobson that she was under arrest for obstructing, and that Officer Eastlick then attempted to take Ms. Hobson into custody. Ms. Hobson then forcibly pulled her arm away from Officer Eastlick, stating "let me go." Officer Alisankus then took Ms. Hobson's right hand and wrist in an effort to apply a compliance hold. 4 At that point Ms. Hobson began to struggle and

Page 828

tried to pull away from Officer Alisankus. Ms. Hobson successfully pulled away and then began to swing her fist and kick at Officer Alisankus. Ms. Hobson's fist struck Officer Alisankus on the left cheek. Ms. Hobson also kicked Officer Alisankus in the left leg and right forearm. Officer Alisankus was later treated at Beloit Memorial Hospital for injuries sustained during this incident.

4. Motions to the circuit court

¶9 At the preliminary hearing on August 23, 1995, defense counsel for Ms. Hobson moved to dismiss the obstructing and resisting counts of the amended complaint. The circuit court determined at the preliminary examination that there was probable cause to arrest Ms. Hobson, and bound her over for the filing of an information. 5 See Wis. Stat. § 970.03. On that same day, defense counsel filed a motion to dismiss the amended complaint in its entirety for lack of personal jurisdiction, and alternatively to suppress evidence arising from Ms. Hobson's arrest. Defense counsel requested an evidentiary hearing to determine whether Ms. Hobson had been brought before the court as the result of an unlawful arrest.

¶10 On January 2, 1996 the circuit court conducted an evidentiary hearing on the motions to dismiss and suppress. The court dismissed the obstructing and resisting counts, finding no probable cause for Ms. Hobson's arrest. The circuit court also concluded that Ms. Hobson had a common law privilege to forcibly resist her arrest. In the circuit court's view, a "superior social policy is advanced by a rule which modifies the common law rule so as to not permit resistance to an unlawful arrest unless the health or safety of the individual or a member of his or her family is threatened in a way that is not susceptible of cure later in a court room." The circuit court also held that Ms. Hobson's actions stemming from the unlawful arrest were caused by the police. The circuit court concluded that the battery charge was incident to the unlawful arrest, and that Ms. Hobson had no intent to assault an officer, but that the police officer assaulted her. 6 The circuit court then dismissed the entire complaint. 7 The State appealed 8 only the dismissal of the battery charge.

¶11 This court is faced with two questions. First, we must ascertain whether a common law privilege to forcibly resist unlawful arrest, in the absence of unreasonable force, has existed in Wisconsin until now. Second, if that privilege exists, we must decide whether public policy is best served by continuing to recognize that privilege, or by abrogating it.

Page 829

II. ORIGIN OF COMMON LAW PRIVILEGE TO RESIST UNLAWFUL ARREST

¶12 The nature and scope of a common law privilege is a question of law which this court reviews de novo. See generally Kensington Development v. Israel, 142 Wis.2d 894, 899-900, 419 N.W.2d 241 (1988); State v. Deetz, 66 Wis.2d 1, 224 N.W.2d 407 (1974). Our review discloses that over its 400 year history, the nature and scope of this particular privilege has expanded and contracted based on prevailing legal and societal conditions.

¶13 Article XIV, section 13 of the Wisconsin Constitution preserves the English common law in the condition in which it existed at the time of the American Revolution until modified or abrogated. 9 See State v. Boehm, 127 Wis.2d 351, 356 n. 2, 379 N.W.2d 874 (Ct.App.1985); see also, Davison v. St. Paul Fire and Marine Ins. Co., 75 Wis.2d 190, 201, 248 N.W.2d 433 (1977).

¶14 Ms. Hobson and amicus curiae Wisconsin Association of Criminal Defense Lawyers (WACDL) and the State Public Defender make numerous citations to an article by Professor Paul G. Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128 (1969). Professor Chevigny's article traces the history of the English...

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37 practice notes
  • State v. Stietz, No. 2014AP2701-CR
    • United States
    • Wisconsin Supreme Court
    • June 13, 2017
    ...the 375 Wis.2d 634common law privilege "to forcibly resist an unlawful arrest in the absence of unreasonable force." State v. Hobson , 218 Wis. 2d 350, 353, 577 N.W.2d 825 (1998). We "adopt[ed] the conclusion" 895 N.W.2d 827of another state supreme court that had reasoned in part:[T]he lega......
  • Hardy v. City of Jr., Case No. 13-CV-769-JPS
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • February 27, 2015
    ...the arrestee "had no right to resist the officers' attempts to arrest him." 477 F.3d 492, 495 (7th Cir. 2007) (citing State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825, 837 (1998)). But that statement was made in dicta after it had already been determined that the plaintiffs' constitutional ......
  • State v. Harrison, Nos. 2017AP2440-CR & 2017AP2441-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • April 17, 2020
    ...to sentencing. The nature and applicability of a common law doctrine are questions of law that we independently review. State v. Hobson, 218 Wis. 2d 350, 358, 577 N.W.2d 825 (1998). B. Judicial Estoppel ¶26 "Judicial estoppel is an equitable doctrine invoked at the court's discretion to pre......
  • State v. Young, 2006 WI 98 (Wis. 7/12/2006), No. 2003AP2968-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 12, 2006
    ...U.S. at 125. ¶ 91 It is Young's flight, his physical resistance of the officer, coupled with this court's decision in State v. Hobson, 218 Wis. 2d 350, 380, 577 N.W.2d 825 (1998) (abrogating the previously recognized common law privilege to forcibly resist an unlawful arrest),25 that compel......
  • Request a trial to view additional results
37 cases
  • State v. Campbell, 2006 WI 99 (Wis. 7/12/2006), No. 2004AP803-CR.
    • United States
    • Wisconsin Supreme Court
    • July 12, 2006
    ...defense.10 Campbell argues that, similar to the now-abrogated common law privilege to resist an unlawful arrest, see State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998), Wisconsin allows a defendant to disregard an order procured by fraud and then collaterally attack the fraudulently ob......
  • Hardy v. City of Milwaukee, Case No. 13–CV–769–JPS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • February 27, 2015
    ...the arrestee “had no right to resist the officers' attempts to arrest him.” 477 F.3d 492, 495 (7th Cir.2007) (citing State v. Hobson, 218 Wis.2d 350, 577 N.W.2d 825, 837 (1998) ). But that statement was made in dicta after it had already been determined that the plaintiffs' constitutional c......
  • MBS–certified Pub. Accountants, LLC v. Wisconsin Bell Inc., No. 2008AP1830.
    • United States
    • United States State Supreme Court of Wisconsin
    • February 24, 2012
    ...common law doctrines such as laches, estoppel, unclean hands, voluntary payment, privity, economic loss, etc. FN23. See State v. Hobson, 218 Wis.2d 350, 577 N.W.2d 825 (1998) (abrogating the common law right to forcibly resist an unlawful arrest). The Hobson court cited Black's Law Dictiona......
  • State v. Campbell, No. 2004AP803-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 12, 2006
    ...defense.10 Campbell argues that, similar to the now-abrogated common law privilege to resist an unlawful arrest, see State v. Hobson, 218 Wis.2d 350, 577 N.W.2d 825 (1998), Wisconsin allows a defendant to disregard an order procured by fraud and then collaterally attack the fraudulently obt......
  • Request a trial to view additional results

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