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Excellent Article - "The Right to Resist and the Vindication of Julius Holmes"

2067 Views 18 Replies 7 Participants Last post by  68908

Julius Holmes was in his Macon, Georgia apartment cooking dinner when Officer Rogers arrived to arrest him.

"I'll be damned if you will," Holmes hissed, making a furtive move toward a handgun he had placed on a nearby bed.
GA Court of Appeals - "A policeman under these circumstances cannot be allowed to dispense with a warrant when making or attempting an arrest any more than other officers of the law," continued the appellate court's ruling. When the policemen went into the defendant's house to arrest him without a warrant, they were trespassers in a double sense - trespassing upon the sacred right of personal liberty, and trespassers upon the right of domicile. The defendant had a legal right to resist both trespasses, and to use in resistance as much force as necessary to make that resistance effective."
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This is a case from 1908.
Julius Holmes was black. The crowd and officers were white. I have posited before on this forum that Judges in Georgia often used the right to resist an unlawful arrest to protect the rights of black Georgians in the time of Jim Crow.

While the basic premise is still sound in Georgia law, you should be aware that Georgia is in the minority of states on this issue. The federal courts here do not recognize it except as a matter of state law, and even then the federal courts refer to it with derision.

While I think the law should recognize the right to resist an unlawful arrest, I do not expect the courts in Georgia to continue to do so.

Also, Legacy38 has posted cases showing that so long as probable cause exists, the technical details of Georgia statutory law, e.g., whether there was a warrant or whether the offense was committed in the officer's presence, do not apply to the analysis of whether the arrest is unlawful. I have not devoted any time to studying his assertion, but Legacy is generally correct on such matters, so you should carefully consider what he has written.

There has been a lot of case law development in this area since 1908.
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Did you read post # 6 before you posted this question?
100 years ago, the Supreme Court of Ga said that a ranch hand or farm worker can carry on the rural land they work as their "place of business." WITHOUT ANY CARRY PERMIT.

I am not confident that a court would follow that reasoning to rule that a pimply-faced 18 year old burger flipper can pack a loaded concealed pistol in his polyester uniform at McDorkle's in the City of Atlanta, without his employer's knowledge or permission.

Bob Dylan said "the times they are a-changin' " and they may have changed enough to erode the value of 100+ year old caselaw.
Why not? The law still says "place of business," doesn't it?

O.C.G.A. § 16-11-126

"Any person [including pimply faced 18 year olds] who is not prohibited by law from possessing a handgun [which includes pimply faced 18 year olds] . . . may have or carry on his . . . person a weapon . . . inside his . . . place of business [which includes McDonalds] without a valid weapons carry license."
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