State v. Ramsdell

• Decision Date: 17 December 1971
• Docket Number: No. 533-E,533-E
• Citation: 285 A.2d 399,109 R.I. 320
• Court: Rhode Island Supreme Court
• Parties: STATE v. Robert W. RAMSDELL. x. &c.

Page 399

285 A.2d 399

109 R.I. 320

STATE v. Robert W. RAMSDELL.

No. 533-Ex. &c.

Supreme Court of Rhode Island.

Dec. 17, 1971.

Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., Henry Gemma, Jr., Sp. Asst. Atty. Gen., for plaintiff

Aram K. Berberian, Cranston, for defendant.

OPINION

KELLEHER, Justice.

This indictment charges the defendant with violating G.L.1956, § 11-5-5, in that he knowingly and willfully struck a uniformed police officer while the officer was engaged in the performance of his duties. A jury trial was held in the Superior Court. The jury returned a verdict of guilty. The trial justice denied the defendant's motion for a new trial. In this appeal the defendant presses several exceptions which bring before us the constitutionality of the statute and the correctness of various evidentiary rulings, the charge to the jury and the denial of the motion for a new trial.

The transcript furnishes us the following scenario:

At approximately one-half hour after midnight on July 29, 1966, in the city of Providence, Officer Leonard F. DeMagistris and Officer Reginald L. Iarocci were on patrol in an unmarked police car. Both officers were in uniform. They had been ordered to maintain a close watch on a construction site located near the intersection of Pine and Claverick Streets because this location had been the scene of recent thefts and acts of vandalism. As they approached the site, they observed four individuals, one or more of whom were throwing rocks at a shed used to house various tools and building equipment. As the police approached, the four 'separated.' Officer DeMagistris 'went' to defendant and asked his name. Ramsdell replied by asking the officer his name. The officer then asked Ramsdell where he lived. The defendant responded by asking, 'Who wants to know?' and embellished this remark by punching the officer in the mouth causing a laceration of the lip. The defendant was subdued and brought to police headquarters.

We would preface any consideration of the issues raised in this phase of defendant's appeal by pointing out that at the time Ramsdell punched Officer DeMagistris, Ramsdell was not under arrest. The defendant fails to distinguish a detention from an arrest. We have made such a distinction in Kavanagh v. Stenhouse, 93 R.I. 252, 174 A.2d 560 (1961), when we referred to the fact that § 12-7-1 expressly authorizes a peace officer to detain any person found abroad whom the officer reasonably suspects has committed, is committing, or is about to commit a crime and to ask the suspect for his name, address, the reason for his presence abroad and his destination. While this court believes it highly desirable that a citizen's travel upon the streets of our municipalities be unimpeded, we wish to make it clear that there is nothing ipso facto unconstitutional in the police briefly stopping a citizen under circumstances not justifying an arrest for the purpose of a limited inquiry during a routine police investigation. United States v. Oswald, 441 F.2d 44 (9th Cir. 1971). Although the Fourth Amendment prohibits the 'unreasonable seizures' of persons, not every detention of an individual constitutes an unreasonable seizure. People v. Morales, 22 N.Y.2d 55, 290 N.Y.S.2d 898, 238 N.E.2d 307 (1968). There are circumstances short of establishing the probable cause necessary to make an arrest that can warrant an officer's stopping a pedestrian or motorist on the streets for questioning. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); People v. Mickelson, 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658 (1963); Stone v. People, Colo., 485 P.2d 495 (1971); People v. Peters, 18 N.Y.2d 238, 273 N.Y.S.2d 217, 219 N.E.2d 595 (1966). The essential needs of public safety demand a prompt police inquiry into any suspicious or unusual street activity. It is not only the right but the duty of police officers to investigate suspicious behavior both to prevent crime and to apprehend offenders. State v. Fish, 280 Minn. 163, 159 N.W.2d 786 (1968). Cooperation with the officer at the initial inquiry into a party's suspicious behavior minimizes the risk of an unlawful arrest of the innocent. It can also bring about a prompt release and prevent an intrusion upon one's liberty and reputation. Commonwealth v. Salerno, 356 Mass. 642, 255 N.E.2d 318 (1970). We have no hesitancy in declaring that Officer DeMagistris was amply justified in stopping Ramsdell and inquiring as to his identity and his actions at the location and at the hour the confrontation took place.

Rather than resting our efforts upon the distinction between detention and arrest, we believe it advisable to address ourselves to the questions of defendant's alleged right to defend himself against an unlawful arrest and his unquestioned right to self-defense. They were raised by a demurrer to the indictment alleging an infringement of defendant's constitutional right to due process and the deprivation of rights reserved to him by art. I, sec. 23 of the Rhode Island constitution. ¹ The demurrer was overruled and an exception thereto was duly taken.

The right to resist an unlawful arrest was cognizable at common law. However, this right was abolished in Rhode Island not by the enactment of § 11-5-5, the assault felony statute, in 1965 but by the passage of an act in 1941 (now cited as § 12-7-10) which makes it unlawful to forceably resist an illegal arrest if such person has reasonable grounds to believe that he is being arrested by a peace officer. The thrust of defendant's constitutional challenge is, therefore, aimed more precisely at § 12-7-10 rather than § 11-5-5.

The identical issue, as raised here, was before the court in People v. Curtis, 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33 (1969). The California statute in question was substantially similar to our § 12-7-10. The court in Curtis defined an unlawful arrest as one that is made without probable cause and went on to say that while an individual's rights are violated by an arrest made without probable cause, the abolishment of his right to resist such an arrest did not constitute or cause a deprivation of his liberty because of the simple fact that today's police are so armed and equipped that it is inconceivable that a suspect using reasonable force can escape from or deter his arrest be it lawful or unlawful. Self-help no longer supplies a ready remedy whereby an individual can regain his liberty but rather it exposes the officer, the suspect and the innocent bystander to far graver consequences than the unlawful arrest itself. By the enactment of § 12-7-10, the Legislature has not changed or reduced the effective remedies available against an arrest made without probable cause. It merely requires the arrestee to submit peacefully to the arrest and pursue his remedy in the courts and not on the streets. The General Assembly's rejection of physical violence as a means of regaining liberty cannot be realistically considered as a deprivation of one's liberty within the constitutional guarantee of due process. Views similar to those expressed in Curtis, supra, may be found in United States v. Ferrone, 438 F.2d 381 (3d Cir. 1971); United States v. Simon, 409 F.2d 474 (7th Cir. 1969); State v. Koonce, 89 N.J.Super. 169, 214 A.2d 428 (1965).

We believe that the principles expounded in the Curtis case are sound and we find no validity to defendant's complaint relative to his right to resist an unlawful arrest. We would also add that any rights reserved to defendant by the Rhode Island constitution are subject to the General Assembly's police power. Kavanagh v. Stenhouse, supra. The legislative abolition of the right to resist an unlawful arrest is unquestionably a proper exercise of the police power. ² There is no merit to defendant's assertion that the assault felony statute deprives him of his right to defend himself. A reading of the statute shows that before an accused can be found guilty of assaulting a policeman, it must be shown that at the time he was struck, the officer was in uniform and was 'engaged in the performance of his duty.' It is this last-quoted phrase which preserves defendant's right of self defense.

It is elementary that a police officer may use only such force as is necessary to effectuate an arrest. Tessier v. LaNois, 97 R.I. 414, 198 A.2d 142 (1964). Section 12-7-8 expresses the rule in the negative when it states that 'no unnecessary or unreasonable force' shall be employed in making an arrest. A police officer, therefore, who uses excessive force in making an arrest has exceeded the scope of his duties. If it be found that an arresting officer has used excessive force and is thereby injured by an arrestee attempting to defend himself, the officer cannot be considered to have been injured while engaged in the performance of his duties and the assault felony statute is inapplicable. State v. Mulvihill, 57 N.J. 151, 270 A.2d 277 (1970).

There is a reasonable rationale for one rule which requires a citizen to quietly yield to an unlawful arrest and another rule permitting a citizen to use reasonable force to counter the excessive force of an arresting officer. Implicit in the adoption of these two principles is a recognition that liberty can be quickly restored by resort to the legal profession and an acknowledgment that, unless a citizen is afforded the opportunity to protect himself, the restoration of a fractured limb falls within the exclusive province of the medical profession. The abolition of the common-law right to resist an unlawful arrest, therefore, is in no way related to the citizen's right to protect himself from the excessive force of what might be described as an overzealous police officer.

In speaking of a citizen's right to defendant himself against the arresting officer's excessive force, we wish to stress certain factors. If it develops that an officer used reasonable force, the application of the...