(dissenting) — Ronald Valentine was brutally beaten during the course of an unlawful arrest for a minor trafile infraction. Now this court affirms the criminal conviction of the victim despite the common-law rule which clearly provides Valentine a viable legal defense. Mr. Valentine would not give up his liberty without a fight. Neither should we.
This dissent is worth the fight because a great and fundamental principle is at stake. The majority retraces this principle 300 years to The Queen v. Tooley, 92 Eng. Rep. 349, 353, 2 Ld. Raym. 1296 (William Green & Sons 1909) (K.B. 1710). Majority at 11. Then-Chief Justice Holt recognized false arrest and imprisonment are offenses against the Magna Charta itself. The Queen v. Tooley, 92 Eng. Rep. at 353 ("But sure a man ought to be concerned for Magna Charta and the law; and if anyone against the law imprisons a man, he is an offender against the Magna Charta.”). The Magna Charta is the earliest and perhaps greatest statement of English-speaking people that even the King is not a law unto himself. Providence help us if the majority is correct that such a "theoretical footing” has "eroded with the passage of time.” Majority at 10-11.
By way of introduction, let us review the claims of the majority in the context of my proposed rejoinder.
The facts as recounted by the majority are bad enough, yet understated. Even so they depict a bone-chilling, brutal, and nearly lethal beating of a fellow citizen for a minor traffic violation. But I would rejoin, to sustain a criminal conviction of the victim who was denied an instruction which simply would have allowed the jury to consider his defense is yet a greater outrage. Such refusal of the proposed jury instruction not only excuses the true offense perpetrated upon the victim but generalizes the wrong to all of us through its ill conceived precedent.
The majority faults Valentine for allegedly not claiming *27his arrest was unlawful, asserting he did not properly preserve the issue by neglecting to raise it either at trial or before the Court of Appeals. Majority at 7; 3 n.l. To the contrary, Valentine did argue unlawful arrest both at trial court and before the Court of Appeals. At trial his counsel argued for instruction 9, which applies only if the jury finds Valentine was unlawfully arrested. See Report of Proceedings (RP) at 264-65. The instructions elsewhere defined an unlawful arrest. Clerk’s Papers (CP) at 69. Before the Court of Appeals Valentine argued the arrest was unlawful and that under Rousseau Valentine should have been able to forcefully resist. State v. Rousseau, 40 Wn.2d 92, 241 P.2d 447 (1952). See Br. of Appellant at 23. The Court of Appeals recognized, "In his defense, Mr. Valentine . . . insisted he used reasonable force to protect himself from an illegal arrest.” State v. Valentine, 75 Wn. App. 611, 615, 879 P.2d 313 (1994). What more we can expect of this man I do not know.
The majority claims the common law rule which privileges one to resist an unlawful arrest by reasonable force is unclear and/or confused. Majority at 7. But when push comes to shove, the majority admits the rule exactly as Valentine had posited it in his refused instruction (Majority at 9) and then proceeds to expressly overrule a case upon which Valentine justifiably relies. Majority at 21 ("We explicitly overrule Rousseau and other cases that are inconsistent with our holding in this case.”).
Claiming a new-found enlightenment not apparent to legal generations which preceded it, the majority then opines that the established common-law rule has outlived its usefulness in our brave new world where resistance to unlawful infliction of state coercive power is not only futile (Majority at 17-18), but also invites "anarchy.” Majority at 21. Apparently the majority believes the unlawful use of state force is not anarchy but order. Yet I suggest such circumstances are not new, nor is the seeming futility of individual resistance to the overwhelming, yet still unlawful, police power of the state. It is an age-old tale. Mr. *28Valentine does not need courts to tell him who is going to win a physical confrontation with the police. But he does need this court to recognize and protect his legal rights.
Ultimately the majority’s rule forbidding lawful resistance to unlawful state conduct specially privileges government agents in the wrong to the prejudice of citizens in the right. This special privilege is established notwithstanding the unquestioned and continuing right of a citizen to forcibly resist an assault against his person or a trespass on his property if committed by a private citizen. Thus, in a society of equals, those who violate their public trust by stepping beyond the boundaries of their lawful authority are privileged to become the usurping masters of the public they were originally entrusted to serve. Compare, e.g., State v. Williams, 81 Wn. App. 738, 743-44, 916 P.2d 445 (1996) (one who is assaulted in a place he has a right to be has no duty to retreat and has a right to respond with force no matter how reasonable flight may be).
Finally, I offer my condolences to a majority which makes a criminal out of a victim under a circumstance which "causes [it] concern.” Majority at 24. The concurrence appears to appreciate exactly what is afoot16 but still will deny Mr. Valentine the benefit of his legal defense.
To focus precisely on the issue, we consider Mr. Valentine’s claim that he properly exercised his constitutional right by demanding the state prove beyond a reasonable doubt, to a jury of his peers, that he had criminally assaulted a police officer. It was Valentine’s theory that his use of force, under all the circumstances, was but a reasonable response to an unlawful arrest. He sought to tender both the reasonableness of his force and the unlawful*29ness of his arrest to his peers for their consideration. To that end his trial counsel requested the jury be instructed:
A person arrested without lawful authority may forcibly resist that arrest so long as the force is no more than is necessary as defined elsewhere in these instructions.[17]
CP at 43. Had the court given this instruction Valentine could have argued his theory that the arrest was unlawful, and his force was reasonable; however, the trial court refused the proposed instruction, rather instructing the jury:
A person unlawfully arrested by an officer may resist the arrest; the means used to resist an unlawful arrest must be reasonable and proportioned to the injury attempted upon the party sought to be arrested. The use of force to prevent an unlawful arrest which threatens only a loss of freedom, if you so find, is not reasonable.
RP (3/6/92) at 278 (emphasis added).
The issue in substance, therefore, is whether the final sentence of the court’s instruction accurately states the law. Without question a criminal defendant enjoys the right to have the jury accurately instructed on his theory of defense, provided the instruction is supported by substantial evidence and accurately states the law. And it is reversible error to refuse it. State v. Ager, 128 Wn.2d 85, 93, 904 P.2d 715 (1995).
For the reasons which follow I would hold that Valentine’s proposed instruction, not the court’s, accurately states the law and that as a matter of great principle, as if prudence and legal necessity do not suffice, the rule of law which recognizes a citizen’s right to use reasonable force *30to resist an unlawful arrest should not be lightly cast aside but held tightly to the breast within which beats liberty’s very heart.
Valentine’s Facts
Whether this arrest was indeed unlawful under every construction of the facts we need not determine, nor need we decide whether the facts as related by Valentine truly describe the incident. These are questions which the jury should have decided—but were improperly withheld.
Ronald Valentine presented his version of the facts to the jury. He claimed the police had a personal vendetta against him, spotted him, sent half a dozen officers after him, harassed him, provoked him, and then beat him unconscious.
Valentine’s evidence shows the Spokane police knew him from prior encounters. They had cited him twice for license plate violations, the second occurrence only four days prior to this incident. The night before his arrest Officer Yates and two other officers exchanged words with Valentine in a local tavern. Valentine testified the officers told him he had a bad attitude and then said, "We are going to get you.” RP (3/5/92) at 186.
The officers then discussed Valentine the next morning at roll call. Later that same day police spotted him on a street corner "looking suspicious” and began trailing him as he entered his car and drove away. The police initially followed with two squad cars and a motorcycle, but by the time they pulled him over for failing to signal, several more officers had arrived. According to oral argument the entire downtown police force was in attendance.
WTien Valentine said he was tired of the harassment, which he attributed in part to his race,18 Officer Moore purportedly responded "We’ve got a place for your people, you know. It’s downtown.” RP (3/5/92) at 192. According to Valentine, without first being afforded an opportunity *31to sign a traffic infraction citation for a defective turn signal (because one had not been written), the officer told him he would be arrested and his car impounded. Not only is it uncontroverted that no ticket had been written, but the officers showed no intention to write one. The officers never began to write a ticket nor did they produce the customary ticket book upon which a ticket could have been written had they so intended. RP (3/4/92) at 64. Even so, according to the testimony of Officer Jones, Valentine was still calm and cooperating to this point. RP (3/5/92) at 174.
Valentine testified that as he was closing the window of his car to secure it he heard Moore say to Robinson, "Let’s get him now.” RP (3/5/92) at 194. Officer Robinson testified that he focused on Valentine’s arms, twisting them behind his back while wrenching the thumb to the wrist. Moore simultaneously rushed Valentine and cracked him in the face with a police radio, splintering Valentine’s glasses and breaking the radio. According to Valentine’s testimony, he was not only arrested but was physically battered before he hit Moore. Officer Yates, who had exchanged words with Valentine in the tavern, came from behind and slammed Valentine’s head into Valentine’s car. Officers Jones and Webb joined in. One requested handcuffs, to which Yates reportedly responded: "Don’t worry about the cuffs because we’re going to kill him.” RP (3/5/92) at 197. Webb worked on twisting Valentine’s other arm behind his back while Yates was applying an artery chokehold which renders the victim unconscious if "applied correctly.” Majority op. at 5 n.4. If not "applied correctly,” the hold can be fatal.19
When Valentine arrived at jail, the jail nurse supervi*32sor refused to admit him because of his injuries but rather ordered him delivered to a hospital emergency room for treatment. After Valentine came around during his four-hour emergency room stay, Officer Moore wrote up and presented the ticket to him for the first time—whereupon Valentine signed the ticket immediately. RP (3/4/92) at 71. Valentine was then charged with third degree assault. He was never charged with refusing to sign the infraction. CP at 1.
At his trial for assaulting an officer, Valentine asked that the jury be allowed to decide whether striking this officer was a reasonable response to this illegal arrest. However, the trial court held, and the majority today agrees, the use of any force whatsoever to resist an unlawful arrest is in itself a criminal act. The effect of this rule is to make irrelevant whether the arrest was unlawful, a prospect which neither the majority nor the Spokane municipal authorities seem particularly intent to address.
I posit this arrest was indeed unlawful because in Washington one may not be arrested for an ordinary traffic infraction. RCW 46.63.020. However, failure to sign an infraction constitutes a misdemeanor (RCW 46.61.021(3), .022) for which arrest is permitted. RCW 10.31.100(1). Yet Valentine was never charged with failure to sign; nor was he even presented a ticket to sign before his arrest. I can find no lawful basis to arrest this man prior to initiation of physical contact by the police, and the majority apparently cannot either.
Historical Right to Resist Unlawful Arrest
The right to be free from unlawful arrest dates back to the Magna Charta and perhaps before. See Magna Charta, § 39 ("No free man shall be seized or imprisoned . . . *33except by the law of the land.”). Unlawful arrest has always been considered a serious affront. See The Queen v. Tooley, 92 Eng. Rep. 349, 353, 2 Ld. Raym. 1296 (William Green & Sons 1909) (K.B. 1710) ("if anyone against the law imprison a man, he is an offender against Magna Charta.”).20 The law has, from the start, deemed an unlawful arrest an assault and battery. State v. Rousseau, 40 Wn.2d 92, 95, 241 P.2d 447 (1952). (" 'An illegal arrest is an assault and battery,’ ”) (citing State v. Robinson, 145 Me. 77, 72 A.2d 260, 262 (1950)).
Because this is so, the common law recognized the victim’s legal right to forcibly resist. "[B]oth American and English courts reached the same conclusions concerning the right to resist an unlawful arrest: an assertion of arbitrary authority was a provocation to resist.” Paul G. Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128, 1132 (1969). The right was recognized long ago as common citizens came to understand they had rights of personal liberty against lords, Crown, and state. Id. at 1137-38. This right to resist unlawful arrest "memorializes one of the principle elements in the heritage of the English revolution: the belief that the will to resist arbitrary authority in a reasonable way is valuable and ought not to be suppressed by the criminal law.” Id.', see also L. B. Horrigan & Seymour D. Thompson, Select American Cases on the Law of Self-Defence 716 (1874) ("[T]he law sets such a high value upon the liberty of the *34citizen, that an attempt to arrest him unlawfully is esteemed a great provocation . . .
Authority is clear, as are these cases on their face, the principle upon which the rule was founded that an individual may resist an unlawful arrest with reasonable force is rooted in political philosophy and is no way dependent upon a trivial factual inquiry into the conditions of one’s local jail. Compare Majority at 14-17. Certainly we have repeated the rule in our jurisdiction in recent years when our jails were much the same as today.
The majority’s discussion under the heading "English Prisons” (Majority at 14-17) trivializes and denies by omission the great principle so aptly summarized in the Declaration of Independence that governments derive their just powers from the consent of the governed and that the purpose of government is to protect legal rights, not to violate them through lawless conduct. This principle remains the same whether the local jail is a damp and frigid dungeon or a country club with a fence around it. In either case the inmate has lost his liberty and the government has violated the law when it stole it from him.21
In America the tradition of resisting unlawful authority has been embraced from the early days of resisting imperial British power during the Revolution through the civil rights movement. See Wright v. Georgia, 373 U.S. 284, 83 S. Ct. 1240, 10 L. Ed. 2d 349 (1963) (reversing conviction of a group of African-Americans for refusing to obey an order to leave a segregated basketball court). It is fundamental.
"In the face of obvious injustice, one ought not to be forced to submit and swallow one’s sense of justice. More importantly, it is unconscionable to convict a man for resisting an injustice. This is indeed a value judgment, but the values are fundamental.” Chevigny, supra at 1137-38. Common law acknowledges a reasonable amount of force *35can be used to repel the assault and battery of an illegal arrest, including that which threatens one’s liberty without physical injury. Indeed, allowing resistance without allowing any force renders the right to resist hollow and illusory. In 1900 the United States Supreme Court held "If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest.” John Bad Elk v. United States, 177 U.S. 529, 535, 20 S. Ct. 729, 44 L. Ed. 874 (1900).
Traditionally, illegal, arbitrary abuse of state power has been regarded as even more threatening and deserving of resistance than the occasional street crime. Thus the common law has long held "[I]f one be imprisoned upon an unlawful authority, it is a sufficient provocation to all people out of compassion; much more where it is done under a colour of justice . . . .” The Queen v. Tooley, 92 Eng. Rep. at 352, 2 Ld. Raym. 1296 (emphasis added). Justice Brandéis said much the same:
The maxim of unclean hands comes from courts of equity. But the principle prevails also in courts of law. Its common application is in civil actions between private parties. Where the government is the actor, the reasons for applying it are even more persuasive. Where the remedies invoked are those of the criminal law, the reasons are compelling.
Olmstead v. United States, 277 U.S. 438, 483-84, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandéis, J., dissenting).
Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the *36criminal law the end justifies the means—to declare that the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.
Id. at 485 (Brandéis, J., dissenting).
New York’s high court reasoned similarly: "For most people, an illegal arrest is an outrageous affront and intrusion—the more offensive because under color of law—to be resisted as energetically as a violent assault.” People v. Cherry, 307 N.Y. 308, 121 N.E.2d 238, 240 (1954) (emphasis added).
Thomas Paine considered it common sense that
Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one; for when we suffer, or are exposed to the same miseries by a government, which we might expect in a country without government, our calamities is heightened by reflecting that we furnish the means by which we suffer.
Thomas Paine, Common Sense at 65 (Penguin Books 1976) (1776).
Thomas Jefferson’s Declaration of Independence reminds us governments are instituted among men to secure the inalienable rights of life, liberty, and the pursuit of happiness, and "[t]hat whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it . . . .” The Declaration of Independence 1 (U.S. 1776). In support of this Declaration the signers pledged "our Lives, our Fortunes and our sacred Honor.” Some lost their lives, many their fortunes, but none their honor. When government agents commit assault and battery against the very citizens they are sworn to protect, the government is no longer our friend; it is our dangerous enemy.
The Government of the State of Washington, as well, was "established to protect and maintain individual rights.” Const, art. I, § 1. It was not established to do precisely the opposite.
*37The age-old rule which recognizes the right to resist unlawful assertions of state power is an important deterrent to tyranny. With the rule limited to cases where the police are exceeding and abusing their authority, the police officers involved in the excess should be deterred, knowing that their abuse may spark resistance.
This rule has equal application in the twentieth and twenty-first centuries to the extent it is rooted in political theory and human nature. In a well-known passage in The Gulag Archipelago, Aleksandr Solzhenitsyn wonders what would have happened had the countless victims of Stalin’s arbitrary state power resisted and whether the officers serving under Stalin might have acted with less zeal had they known they could face legitimate resistance and even harm in effectuating their unlawful arrests. Solzhenitsyn suggests that resistance would have been an effective deterrent; had the victims resisted, "notwithstanding all of Stalin’s thirst, the cursed machine would have ground to a halt!” 1 Aleksandr I. Solzhenitsyn, The Gulag Archipelago 13 n.5 (Thomas P. Whitney trans., Harper & Row 1973). He then concludes that "resistance should have begun right there, at the moment of the arrest itself.” Id. at 15. What, then, would Solzhenitsyn make of the majority’s claim that this rule has outlived its usefulness because resistance to unlawful arrest when perpetrated by American authority is an act of futility, as the power of our state is so omnipotent that resistance is not only futile but should be condemned? Majority at 18-20.
It may be true, as the majority posits, those who resist an unlawful arrest, like Valentine, will often be the worse for it physically; however, that is not to say that their resistance is unlawful. The police power of the state is not measured by how hard the officer can wield his baton but rather by the rule of law. Yet by fashioning the rule as it has, the majority legally privileges the aggressor while insulting the victim with a criminal conviction for justifiable resistance.
Unlawful Arrest in Practice
Modern judicial decisions have adopted procedures to *38deter unlawful search and seizure (see Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691-92, 6 L. Ed. 2d 1081, 84 A.L.R.2d 933 (1961) (adopting the exclusionary rule to curb illegal police conduct in making unwarranted and unreasonable searches and seizures)) as well as to deter police conduct which induced innocent men to commit crimes. See State v. Smith, 101 Wn.2d 36, 42, 677 P.2d 100 (1984) ("Entrapment occurs only when . . . the accused is lured or induced into committing a crime he had no intention of committing.”). Also see Chevigny, The Right to Resist an Unlawful Arrest, supra at 1149 ("Policemen sometimes threaten to 'get’ a defendant.... If the arrest is unlawful, a personal element makes it doubly provocative, and suggests that the police may have entrapped the resisting defendant into a crime he would not otherwise have committed.”).
Allowing police to arrest wrongfully and then prosecute the victim for righteous resistance is wrong for the same .reason entrapment is wrong. It was only the injustice of the police misconduct that induced the outraged victim to resist.
Judge Schultheis of the Court of Appeals, Division Three, characterized such behavior as outrageous police misconduct and in possible violation of the due process clause of the Fourteenth Amendment so as to shock the judicial conscience. State v. Valentine, 75 Wn. App. 611, 625, 879 P.2d 313 (1994) (Schultheis, J., dissenting), review granted, 128 Wn.2d 1001, 907 P.2d 298 (1995); see also State v. Lively, 130 Wn.2d 1, 921 P.2d 1035, 1044-49, 65 U.S.L.W. 2180 (1996). However, as the majority opinion here attests, the conscience of many jurists is not easily shocked. Many courts have set the bar so high that only giants may leap to state a due process claim based on outrageous police misconduct, which " 'is not established merely upon a showing of . . . even flagrant misconduct on the part of the police ....’” State v. Meyers, 102 Wn.2d 548, 551, 689 P.2d 38 (1984) (quoting United States v. Kelly, 707 F. 2d 1460 (D.C. Cir., 1983) (emphasis added)).
*39No published Washington opinion, save State v. Lively, 130 Wn.2d 1, 921 P.2d 1035, 1044-49 (1996), ever overturned a conviction on this ground because it must be "shocking to the universal sense of justice.” Lively, 921 P.2d at 1049 (Durham, C.J., dissenting) (quoting United States v. Russell, 411 U.S. 423, 432, 93 S. Ct. 1637, 1643, 36 L. Ed. 2d 366 (1973)).
Therefore I would prefer the more direct route of reliance upon common law precedent than to rest my analysis on an appeal to judicial conscience, which seems quite resilient at times.
At oral argument the city admitted its officers would repeat the same conduct "if this kind of factual circumstance ever arose again.” Audiotape of oral argument (3/ 27/96) tape 1. There is no acknowledgment of wrongdoing, let alone remorse. And the majority provides no incentive for contrition.
Nevertheless, the majority suggests victims of illegal arrest should not be allowed to resist by physical force because their rights can be " 'vindicated through legal processes.’ ” Majority op. at 8 (citation omitted). But this claim misses the mark: the rights of the victim have already been violated by the illegal arrest. The remaining question is whether the victim who instinctively resists the injustice is to be doubly wronged by suffering the second indignity of a criminal conviction.
If "vindication” means the alleged police aggressor is subject to even-handed prosecution (not just his victim), I hear the applause of one hand clapping. At oral argument the state admitted that not even internal disciplinary action had been taken against these officers and none is "appropriate.” Audiotape of oral argument (3/27/96) tape 1. Moreover, in practice the victim of a wrongful arrest may sue for damages; however, usually he cannot afford an attorney while, inevitably, the government wrongdoer is provided a full defense—at taxpayer expense.
While criminal prosecution of those resisting arrest is common, prosecution of officers abusing their authority is *40rare. The police department itself does the preliminary investigation of possible abuse and usually the case will not go forward unless the department so recommends. See Alison L. Patton, Note, The Endless Cycle of Abuse: Why 42 U.S.C. § 1983 is Ineffective in Deterring Police Brutality, 44 Hastings L.J. 753, 787 (1993) ("The [internal investigative] division is located within the police department—the investigators are police officers, and the entire process is concealed from the public.”). A recent study reveals "of all alleged instances of police misconduct, prosecution occurred in only one quarter of one percent of the cases.” Laurie L. Levenson, The Future of State and Federal Civil Rights Prosecutions: The Lessons of the Rodney King Trial, 41 U.C.L.A. L. Rev. 509, 535 (1994). Additionally, in the very few cases actually prosecuted, the fact that the police themselves conducted the initial investigation coupled with the "code of silence” often renders effective prosecution impossible.
Here Officer Yates conducted the internal investigation. RP (3/5/92) at 146. Yates was the same officer who had words with Valentine the night before; the one who reportedly said, "We’re going to get you”; the one who applied the carotid hold which rendered Valentine unconscious before he went to the emergency room; and the one who told other officers, "we’re going to kill him.” RP (3/5/92) at 197. And the same prosecutor who would defend the government in a civil suit has little incentive, if not an outright conflict, to pursue criminal remedies against a wrongdoer who is employed by the client who must bear ultimate financial responsibility. The majority should not hold its breath until we see the light at the bottom of the hole it has dug.
The Law in Washington
The majority recognizes that State v. Rousseau, 40 Wn.2d 92, 241 P.2d 447 (1952) holds one faced with illegal arrest may resist with reasonable force. But to apply the rule we must carefully distinguish between arrests which *41are lawful and those which are not, and distinguish between resistance through force which is reasonable and force which is unreasonable. In our state, and elsewhere, one has no right to use any force to resist a lawful arrest, and one has no right to use unreasonable force to resist even an unlawful one.
Washington incorporated this common law into territorial law in 1881 by statute, and upon statehood territorial law became law of the state. Code of 1881, § 1; Const, art. XXVII, § 2. See also RCW 4.04.010 ("The common law . . . shall be the rule of decision in all the courts of this state.”) (emphasis added). "Shall” is imperative. State v. Krall, 125 Wn.2d 146,148, 881 P.2d 1040 (1994). The incorporated common law on the right to resist illegal arrest is clear: "The law is well settled that reasonable means including physical force may be used to resist an illegal arrest. . . . This rule of law is based on the principle that an illegal arrest is an assault and battery, and one so arrested may either turn and walk away or match force with force . . . .” Curtis v. United States, 222 A.2d 840, 842 (D.C. Ct. App. 1966) (citations omitted). Since the beginning, our state has subscribed to this rule. See State v. Symes, 20 Wash. 484, 490, 55 P. 626 (1899) (" 'If one, even an officer, undertakes to arrest another unlawfully, the latter may resist him.’ ”) (citing 1 Joel Prentiss Bishop, Criminal Law § 868 (1892)). I can find no case (aside from the majority opinion here) which overrules this line of authority. Compare WPIC 120.06, Resisting Arrest—Elements (a prima facie case requires the prosecution to prove beyond a reasonable doubt "that the arrest or attempt to arrest was lawful.”).
I accept the majority’s claim that our leading modern authority on this issue is State v. Rousseau, 40 Wn.2d 92, 241 P.2d 447 (1952). Rousseau has been cited and relied upon in numerous cases preceding this. I submit it summarizes a rule of law upon which Mr. Valentine is entitled to rely in the present and which should not be lightly cast aside for the future.
The facts of Rousseau are these: Mr. Rousseau was *42unlawfully arrested without probable cause for a second degree burglary on a Seattle street corner. Although the arrest was effected in a completely nonviolent way, and he was not even handcuffed, Rousseau pushed the arresting officer into the path of an approaching automobile which, according to this court, "could have seriously injured or killed the officer as effectively as though the appellant had used a gun, a knife, or other deadly weapon . . . .” Id. at 95.
Fortunately, however, the officer was not injured but instead pursued Rousseau in earnest, arresting him on the second occasion for assaulting an officer in the context of the earlier arrest. The issue presented to the Supreme Court was whether the second arrest was also illegal since it arose from Rousseau’s use of force to resist the first arrest.
Considering the question on appeal, the Supreme Court announced the governing rule of law:
It is the law that a person illegally arrested by an officer may resist that arrest, even to the extent of the taking of life if his own life or any great bodily harm is threatened.
Rousseau, 40 Wn.2d at 94 (citing John Bad Elk v. United States, 177 U.S. 529, 535, 20 S. Ct. 729, 44 L. Ed. 874 (1900) and State v. Gum, 68 W. Va. 105, 69 S.E. 463, 33 L.R.A.N.S. 150 (1910)). In so holding, the Supreme Court specifically rejected the claim that "even in the case of an unlawful arrest, the person arrested would be warranted in using force and inflicting personal injury upon the officer only in self-defense, the necessity or apparent necessity for which must appear.” 40 Wn.2d at 95. Rather, the Rousseau majority adhered to John Bad Elk, Gum, and State v. Robinson, 145 Me. 77, 72 A.2d 260, 262 (1950), which
laid down the rule that the force used in resisting an unlawful arrest must be reasonable and proportioned to the injury attempted upon the party sought to be arrested, and he cannot use or offer to use a deadly weapon if he has no reason to apprehend a greater injury than a mere unlawful arrest.
*43Rousseau, 40 Wn.2d at 95. Although the Supreme Court concluded that Rousseau’s first arrest was unlawful, it also concluded that the degree of force used by Rousseau to resist that unlawful arrest may have been unlawfully excessive, which "is usually a question for the jury under all the circumstances.” Id. at 96 (emphasis added).
Had the trial court in Mr. Valentine’s case followed the dictates of Rousseau, it would have given the jury instruction proposed by Valentine, thereby allowing the jury to determine whether or not Valentine used "unreasonable force in resisting arrest.” Id. Our courts followed the common-law rule as expressed in Rousseau in 1952 for at least another 30 years.
For example, in City of Kennewick v. Keller, 11 Wn. App. 777, 787, 525 P.2d 267 (1974) the illegally arrested defendant, faced with loss of liberty "alone,” resisted the unlawful arrest by jerking free of the officer’s grasp and then hitting the officer. The Court of Appeals reversed the trial court’s conviction for resisting arrest, reasoning that one has the lawful right to use reasonable force to resist an unlawful arrest. The court cited Rousseau for the proposition that "[a] citizen has the right to resist an unlawful arrest so long as that resistance is reasonable in light of all the circumstances.” Id. at 787.
Also following the common-law rule was State v. Counts, 99 Wn.2d 54, 659 P.2d 1087 (1983), in which a man illegally arrested and facing "nothing more” than loss of liberty threatened the arresting officers with a butcher’s knife. In reversing defendant’s conviction for assaulting the officers, this court cited Rousseau and remanded for new trial which "should include an instruction to the jury on a defendant’s right to use reasonable resistance against an unlawful arrest.” Counts, 99 Wn.2d at 61.
The same rule was applied again in State v. Hoffman, 35 Wn. App. 13, 664 P.2d 1259 (1983), in which the police perpetrated an unlawful arrest. During the unlawful arrest the defendant pulled away from the officer, swung at him and a scuffle ensued. The defendant faced "only” a *44loss of liberty, yet the court acknowledged his right to resist. "We recognize that the defendant had a right to defend himself against an unlawful arrest.” Hoffman, 35 Wn. App. at 17 (citing Counts, 99 Wn.2d 54, and Keller, 11 Wn. App. 777). "Whether he used reasonable force under the circumstances is, however, a question for the jury.” Hoffman, 35 Wn. App. at 17 (citing Rousseau, 40 Wn.2d 92).
State v. Johnson, 29 Wn. App. 307, 309, 628 P.2d 479 (1981) is in accord: "[A] citizen [has] the right to resist an unlawful arrest so long as that resistance is reasonable in light of all the circumstances . . . .” (citing Keller, 11 Wn. App. at 787).
In State v. Humphries, 21 Wn. App. 405, 586 P.2d 130 (1978) the police unlawfully entered a dwelling and the defendant struck the officer. On appeal the court noted that "[a] person illegally arrested by an officer may resist that arrest; the force used in resisting an unlawful arrest must be reasonable and proportioned to the injury attempted on the party sought to be arrested.” Id. at 407-08 citing Rousseau, 40 Wn.2d 92 and Keller, 11 Wn. App. at 787).
Despite all of this precedent, none of which has ever been overruled, and despite the clarity of the rule, the great principle of a person’s right to resist unlawful arrest has become tarnished, if not obscured, by dicta thoughtlessly conceived by courts demonstrating little or no recognition of the importance of the issue.
For example, State v. Hornaday, 105 Wn.2d 120, 131, 713 P.2d 71 (1986), superseded by statute as stated in State v. Preston, 66 Wn. App. 494, 832 P.2d 513 (1992), allowed dictum to the effect that " '[t]he use of force to prevent even an unlawful arrest which threatens only a loss of freedom is not reasonable.’ ” (quoting State v. Goree, 36 Wn. App. 205, 209, 673, P.2d 194 (1983), review denied, 101 Wn.2d 1003 (1984)). This was dictum because the arrestee used no force and was convicted only of being uncooperative in resisting arrest, not of assaulting an officer. Fur*45ther, the court found the defendant’s response reasonable and reversed his conviction.
Such ill-considered dictum from Hornaday was essentially repeated in State v. Mierz, 127 Wn.2d 460, 901 P.2d 286 (1995), which rejected the defendant’s claim that he was denied effective assistance of counsel because his trial counsel did not argue that he was entitled to use "self-defense” in the form of siccing his dogs on law enforcement officers. Id. at 477. In the context of rejecting the self-defense claim the court stated "[a]n arrestee charged with assault upon a law enforcement officer must show that there was an imminent threat of serious physical harm in connection with an unlawful arrest in order to establish legitimate use of force in self-defense. RCW 9A.16.020(3) . . . .” Mierz, 127 Wn.2d at 476. But, to the contrary, the cited statute recognizes the right to defend against unlawful arrest:
The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:
(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary ....
RCW 9A. 16.020 (emphasis added). Thus any claim that Mierz overruled Rousseau "sub silentio” (Majority at 9) credits this court with an act of thoughtlessness justified by neither the facts nor holding of that decision.
In fact, this statute is perfectly consistent with the jury instruction offered by Valentine because it recognizes his right to prevent an offense against his person "in case the force is not more than is necessary.” In any event, the language in Mierz was mere dicta because it was not necessary to the decision in that case. Pedersen v. Klinkert, 56 Wn.2d 313, 317, 320, 352 P.2d 1025 (1960). Ill-considered *46dictum should not be transformed into a rule of law. State ex rel. Hoppe v. Meyers, 58 Wn.2d 320, 329, 363 P.2d 121, 100 A.L.R.2d 304 (1961).
Apparently the majority also relies upon ill-considered dictum from the Court of Appeals, although such opinions are not binding upon this court. See, e.g., City of Seattle v. Cadigan, 55 Wn. App. 30, 37, 776 P.2d 727, review denied, 113 Wn.2d 1025, 782 P.2d 1069 (1989) (lawful arrest where the defendant made no assertion that the arrest was unlawful).
Overruling Rousseau Contrary to Stare Decisis
The majority overrules Rousseau without statutory necessity and contrary to the rule of stare decisis.
The majority attacks Rousseau, claiming one of the cases upon which it relied, State v. Gum, 68 W. Va. 105, 69 S.E. 463 (1910), although still good law in itself, nevertheless "relied heavily” on cases from Iowa, California, and Florida, which are no longer controlling in their jurisdictions. Majority at 9-10. Although this thread is thin enough, the majority neglects to note these jurisdictions have not, unlike our majority, judicially overruled hundreds of years of common law, but changed the rule by legislation. See Majority at 17 n.ll. Yet our majority is apparently inclined to legislate from the bench what other courts have left to their legislatures, although our Legislature, to its credit, has resisted the temptation to impose such an innovation.
Under the heading "The Trend Away from the Common-Law Rule” (Majority at 17-22), the majority seems to claim the common-law rule should be overruled because now there are 20 states which adhere to it whereas previously there were 45. This rationale is no reason at all. It would be preferable for our state to adhere to an appropriate rule than an inappropriate one, even if we were the only state in the 50 so to do. If anything, the numerical observation of the majority causes one to soberly reflect upon Justice Douglas’s metaphor that
*47As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air—however slight—lest we become unwitting victims of the darkness![22]
Absent legislative intervention "[t]he doctrine [of stare decisis] requires a clear showing that an established rule is incorrect and harmful before it is abandoned.” In re Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970).
A thorough discussion of the doctrine of stare decisis by a closely divided Supreme Court in the context of a determined claim that prior precedent be overruled is propounded in Planned Parenthood v. Casey, 505 U.S. 833, 854, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992).
The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. With Cardozo, we recognize that no judicial system could do society’s work if it eyed each issue afresh in every case that raised it. See B. Cardozo, The Nature of the Judicial Process 149 (1921). Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. See Powell, Stare Decisis and Judicial Restraint, 1991 Journal of Supreme Court History 13, 16. At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed.
Id. at 854.
The right to rely upon fixed standards to determine one’s future course of conduct is, of course, an important consideration supporting the rule. Although I doubt Mr. Valentine spent the evening preceding this incident searching out precedents in his local law library, it is equally apparent that the majority in Casey followed the *48doctrine in the abortion context more out of a respect for precedent than any illusion that pronouncements of the court would realistically affect the incidence of future pregnancies.23 Beyond that, Casey clarifies the very heart of stare decisis as a bar to "reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently . . . .” Casey, 505 U.S. at 864. I see no grounds advanced by the majority today to overrule Rousseau for any reason new or unique to our time. Neither human nature nor the essential aspects of coercive state power have changed much over the centuries, much less over the past 40 years.
Beyond that I would assert the clearly incorrect rule is the one created by the majority today. It does not even examine the true principled basis of the common-law rule, much less reasonably, or persuasively, disprove it. At most it misapplies a policy argument made in State v. Westlund, 13 Wn. App. 460, 467, 536 P.2d 20, 77 A.L.R.3d 270, review denied, 85 Wn.2d 1014 (1975), that resisting lawful arrest is disfavored and the courts are the best place to vindicate one’s rights. While that is a widely held and commendable view, it has nothing to do with the issue here. Westlund itself suggests that the policy reasons against forcibly resisting lawful arrests are inapplicable to unlawful ones.
Moreover, the rule adopted by the majority is inconsistent with the lawful entitlement to use force to protect one’s person and property, or, to put it another way, protect one’s property in his person and his estate. It is well established that determinations as to when force may be used in self-defense are not made (as the majority suggests) on the basis of where the right can best be vindicated. Indeed, in this state the citizen has the right to use force to defend property against trespass and invasion. RCW 9A.16.020(3); Coffel v. Clallam County, 58 Wn. App. 517, 524, 794 P.2d 513 (1990).
*49If one can use force to defend his property, why not use force to defend his person? John Locke, the 17th Century English political philosopher, whom Thomas Jefferson acknowledged as the philosophical father and guiding spirit of the American Revolution,24 recognized a person’s property in his person is foremost among his rights to property. John Locke, Second Treatise on Government, in 35 Great Books of the Western World 30 (R. Hutchins ed., 1952). And James Madison agreed one has a property interest not only in "his land, or merchandise, or money,” but also in "the safety and liberty of his person . . . .” James Madison, Essay on Property for the National Gazette (Mar. 27,1792), in 14 The Papers of James Madison 266, 266-68 (Robert A. Rutland & Thomas A. Marón et al. eds., 1983). The majority opinion, therefore, conflicts with RCW 9A.16.020(3) and can be explained more by a political preference for an enlarged government prerogative than by a general and principled rule proven by equal application within the private sector.
Similarly, this state adheres to the "no duty to retreat rule.” One who is assaulted in a place he has a right to be has no duty to retreat and has a right to respond with force no matter how reasonable flight may be. State v. Williams, 81 Wn. App. 738, 743-44, 916 P.2d 445 (1996). As the court held just last year, "While the wisdom of such a policy may be open to debate, the policy is one of long standing and reflects the notion that one lawfully where he is entitled to be should not be made to yield and flee by a show of unlawful force against him.” Williams, 81 Wn. App. at 744 (citing Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 5.7(f) (2d ed. 1986)). Apparently the private violator of another’s legal rights may face lawful resistance but the rogue government actor may proceed with comparative impunity.
The majority then contends recognition of the lawful right to forcibly resist an unlawful arrest promotes lawlessness or "anarchy.” Majority op. at 21. But to the *50extent we distinguish between the rule of law and the rule of men,25 the majority’s purblind stand actually promotes lawlessness, while strict enforcement of the common-law right to lawfully resist an unlawful arrest is not anarchy but its prevention. Anarchy is "lawlessness.” Black’s Law Dictionary 84 (6th ed. 1990). And "anarchism is a game at which the police can beat you.”26 An unlawful arrest is the essence of anarchy. "American history is rich in forms of lawlessness, and not all of them stand outside the legal system as enemies of 'law and order.’ Many, in fact, take place 'inside’ the legal system itself, or are aspects of that system—police brutality, for example.” Lawrence M. Friedman, Crime and Punishment in American History 172 (1993).27 The citizen who *51stands by his legal rights in the face of lawless government misconduct upholds the law and renders a service not only to himself but the public generally.28
Many other jurisdictions prefer the common-law rule to mandatory abject submission to unlawful arrest.29 There is *52no indication these jurisdictions are plagued by "anarchy.”
Ex Post Facto Violation
Under Rousseau and the common law Valentine would have been entitled to argue a recognized legal defense, i.e., that his resistance to an alleged unlawful arrest was reasonable even though he faced "only” loss of liberty. However, by overruling Rousseau the court deprives Valentine of this defense and does so retroactively—a clear violation of the prohibition against ex post facto lawmaking.
The ex post facto clauses of both the state and federal constitutions prohibit the state from enacting any law which imposes punishment for an act which was not punishable when committed. U.S. Const, art. I, § 10; Const. art. I, § 23; State v. Ward, 123 Wn.2d 488, 496, 869 P.2d 1062 (1994). Ex post facto laws "are contrary to the first principles of the social compact, and to every principle of sound legislation.” James Madison, The Federalist No. 44 (1787) in The Federalist Papers by Alexander Hamilton, James Madison, and John Jay at 227 (Bantam Books 1982). In principle "[ejvery law that makes an action, done before the passing of the law, and which was innocent *53when done, criminal . . . .” violates the clause. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 658 (1798) (Chase, J.). This due process principle applies equally to judicial decisions. "[Wjhere a court overrules a prior decision so as to enlarge the scope of criminal liability, the new rule must be applied prospectively only.” State v. Gore, 101 Wn.2d 481, 489, 681 P.2d 227, 39 A.L.R.4th 975 (1984). The rule equally applies when the new rule deprives a defendant of a previously available defense. Beazell v. Ohio, 269 U.S. 167, 46 S. Ct. 68, 70 L. Ed. 216 (1925) (ex post facto clause prohibits any new law which "deprives one charged with crime of any defense available according to law at the time when the act was committed.”).
Conclusion
The majority’s rule makes the unlawful arrest of Valentine irrelevant;30 however, that is the predicate fact which lawfully justifies reasonable resistance and is Valentine’s recognized and legitimate defense to the assault charge. Moreover, the majority’s new rule is inconsistent with the remainder of Washington law on defense of self and property as well as the fundamental principle upon which it is based. Valentine was absolutely entitled to submit the question of the reasonableness of his response to a false arrest to a jury of his peers.31
Apparently the majority thinks it is neither a major *54injury nor affront to be arrested unlawfully by agents of the government when "only liberty” is at stake. I disagree.
See Jeffrey Needle, Driving while Black—D.W.B., Trial News 3 (Dec. 1996) (commenting on Washington v. City of Santa Monica, 98 F.3d 1181 (9th Cir. 1996), "Young African-American males frequently report being stopped and detained for reasons that are superficially pretextual. Even affluent people of color, who drive expensive or late-model cars, often report being stopped by law enforcement officers because of their race. This practice has become so prevalent that the actual justification for such detentions has become widely known as 'Driving While Black (D.W.B.).’ ”).
This is similar to an approved Kansas instruction:
You are instructed that every person has a right to resist an unlawful arrest and a person may use such reasonable force as is necessary to prevent the arrest. An illegal arrest is an assault and battery and generally a person has the same right to use force in defending himself from an unlawful arrest as he would have in repelling any other assault and battery.
State v. Goering, 193 Kan. 307, 313, 392 P.2d 930 (1964).
Valentine is African-American.
City of Los Angeles v. Lyons, 461 U.S. 95, 116, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983) (Marshall, J., dissenting) addressed the topic: "It is undisputed that chokeholds pose a high and unpredictable risk of serious injury or death. Choke-holds are intended to bring a subject under control by causing pain and rendering him unconscious. Depending on the position of the officer’s arm and the force applied, the victim’s voluntary or involuntary reaction, and his state of health, an officer may inadvertently crush the victim’s larynx, trachea, or thyroid. The result may be death caused by either cardiac arrest or asphyxia*32tion. An LAPD officer described the reaction of a person to being choked as 'do-png] the chicken,’ Exh. 44, p. 93, in reference apparently to the reactions of a chicken when its neck is wrung. The victim experiences extreme pain. His face turns blue as he is deprived of oxygen, he goes into spasmodic convulsions, his eyes roll back, his body wriggles, his feet kick up and down, and his arms move about wildly.” Between 1975 and 1983, at least 16 people died as a result of LAPD’s use of chokeholds. Id. at 116.
The majority notes the right to resist an unlawful arrest is asserted by and sustained on behalf of a third person in the Tooley case, rather than on behalf of the victim herself. Majority at 13.1 find, however, this factual distinction to add but greater weight to the legal principle that forcible resistance by the victim is lawful. If the third party intervenor is lawfully entitled to forcibly come to the aid of the victim of an unlawful arrest, it cannot be gainsaid that the victim does not have at least the equivalent, if not greater, right to forcibly protect her own person. Rodgers v. State, 280 Md. 406, 373 A.2d 944, 947 ("Although in both Hopkin Huggett’s Case, [84 Eng. Rep. 1082 (K.B. 1666)] and Tooley the court merely reduced a murder charge to manslaughter because of the illegal arrest, the English courts thereafter, with those cases as precedent, uniformly ruled that in cases where one was charged with assault for resisting an illegal arrest, the provocation of that arrest was sufficient to excuse the assault altogether.”), cert. denied, 434 U.S. 928, 98 S. Ct. 412, 54 L. Ed. 2d 287 (1977).
I also challenge the factual assumption that our age is any kinder or gentler than preceding ones when it comes to arrest and incarceration. One can scarcely find a better example of this than Valentine himself.
Letter to Young Lawyers Section of the Washington State Bar Association (Sept. 10,1976), in The Douglas Letters: Selections from the Private Papers of Justice William O. Douglas, 162 (Melvin I. Urofsky ed., 1987).
Nor do I believe, by the same token, that this court’s pronouncements about settling matters in the courtrooms rather than the streets will have the slightest effect other than making criminals out of otherwise innocent men.
Saul Kussiel Padover, The Complete Jefferson 1112 (1943).
"|T|n the famous language of the Massachusetts Bill of Rights, the government of the commonwealth 'may be a government of laws and not of men.’ For, the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.” Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S. Ct. 1064, 30 L. Ed. 220 (1886).
George Bernard Shaw, Misalliance 85 (1914).
"But 'rights’ wrote Richard Bland—that least egalitarian of Revolutionary leaders—'imply equality in the instances to which they belong and must be treated without respect to the dignity of the persons concerned in them.’ ” Bernard Bailyn, The Ideological Origins op the American Revolution 307 (1992) (1967).
Just before he died, Jefferson wrote: "All eyes are opened, or opening, to the rights of man . . . [and to] the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few hooted and spurred, ready to ride them . . . .” Letter to Roger Weightman (June 24, 1826), in The Life and Selected Writings of Thomas Jefferson, 729-30 (Adrienne Koch & William Peden eds., 1972).
"The equality of man proclaimed by the Declaration of Independence is to be understood first of all by comparison with the inequality that characterizes man’s relationship with the lower orders of living beings. In comparison with this inequality there is nothing more evident, in the familiar words of John Locke, than that no human being is marked out by nature to rule, while others are marked out for subjection. . . . The question who shall rule becomes relevant only after the recognition that it is the rights of the whole community, and of every member of that community for whose sake the government is instituted.” Harry V. Jaffa et al., Original Intent and the Framers of the Constitution: A Disputed Question 78 (1994).
"Human virtue or excellence does indeed give some human beings, men or women, the right to hold office, the right to rule. But it is a right that can *51become valuable only as it is recognized as a right, not to privileges, but to service. It is a right which comes to light by virtue of the prior recognition of the equality of mankind and of the rule of law constructed upon its premises.” Id. at 79.
"Hence it is that no man is good enough, in Lincoln’s words, to govern another without his consent. For consent is the reciprocal of equality. And in the reciprocity of equality and consent we find that ground of morality that Lincoln found in the great proposition. The consent arising from equality assures, as we have said at the outset, that those who live under the law will share in making the law they live under, and that those who make the law must live under the law that they make.” Id. at 81.
"[The] freedom of men under government, is, to have a standing rule to live by, common to everyone of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man.” John Locke, The Second Treatise of Government 126 (Everyman ed., 1993) (1689).
The majority counters: "[I]n the often heated confrontation between a police officer and an arrestee, the lawfulness of the arrest may be debatable. To endorse resistance by persons who are being arrested by an officer of the law, based simply on the arrested person’s belief that the arrest is unlawful, is to encourage violence . . . Majority op. at 21. If "the lawfulness of the arrest is debatable,” fairness requires that both the police and the citizen be held to the same legal standard. Prudence counsels restraint on the part of each since the lawfulness of the arrest is measured by objective, not subjective, criteria. See State v. Goree, 36 Wn. App. 205, 208-09, 673 P.2d 194 (1983), review denied, 101 Wn.2d 1003 (1984) (RCW 9A.36.031(1)(a) is not a subjective statute; and "the law does not envision that all parties have to be in agreement or even understand the arrest is lawful at the time of arrest.”); State v. Westlund, 13 Wn. App. 460, 466-67, 536 P.2d 20, 77 A.L.R.3d 270 ("A reasonable but mistaken belief that the arrestee was about to be seriously injured or that the arrestee was entitled to protect himself from such danger is insufficient. . . . Each party acts at his own peril . . . .”), review denied, 85 Wn.2d 1014 (1975) (emphasis added).
Smith v. Holeman, 212 Ga. App. 158, 441 S.E.2d 487, 490 (1994) (if arrest was unlawful, arrestee had right to resist with all force necessary); State v. Goering, 193 Kan. 307, 392 P.2d 930, 934 (1964) (a person may use such reasonable force as is necessary to prevent an unlawful arrest); Melancon v. Trahan, 645 So. 2d 722, 727 (La. Ct. App. 1994) (one may use reasonable force to resist illegal arrest which threatens loss of freedom), writ denied, 650 So.2d 1183 (1995); Jenkins v. State, 232 Md. 529, 194 A.2d 618, 621 (1963) ("The common law rule adhered to in this State is that a person illegally arrested by a police officer may use any reasonable means to effect his escape to the extent of using such force as is reasonably necessary under the circumstances.”); Dennis v. State, 342 Md. 196, 674 A.2d 928, 936 (person may resist unlawful arrest and resistance includes *52use of any reasonable means, including force), cert. granted and judgment vacated, 117 S. Ct. 40 (1996); People v. Krum, 374 Mich. 356, 132 N.W.2d 69, 72 (person may use such force as is necessary to resist unlawful arrest), cert. denied, 381 U.S. 935, 85 S. Ct. 1765, 14 L. Ed. 2d 699 (1965); Smith v. State, 208 So. 2d 746, 747 (Miss. 1968) (person has right to use reasonable force to resist unlawful arrest); State v. Sanders, 295 N.C. 361, 245 S.E.2d 674, 679 (1978) ("A person indeed has the right to resist an unlawful arrest by the use of force, as in self-defense, to the extent that it reasonably appears necessary to prevent unlawful restraint of his liberty.”); Sandersfield v. State, 568 P.2d 313, 315 (Okl. Crim. App. 1977) (person may reasonably resist unlawful arrest); State v. DeBerry, 250 S.C. 314, 157 S.E.2d 637, 640 (1967) ("A citizen is not, of course, required to submit to an illegal arrest and may use as much force as is reasonably necessary to prevent an unlawful arrest.”), cert. denied, 391 U.S. 953, 88 S. Ct. 1857, 20 L. Ed. 2d 867 (1968); Shelton v. State, 3 Tenn. Cr. App. 310, 460 S.W.2d 869, 874 (1970) ("We recognize and approve the general rule that every person has a right to resist an unlawful arrest, and that in preventing such illegal restraint of his liberty he may use such force as may be necessary.”); State v. Gum, 68 W. Va. 105, 109, 69 S.E. 463 (1910) (person may use such force as is necessary to effectuate escape from unlawful arrest).
The majority responds: "Our first response is that we are unable to understand how the dissenter knows that Valentine was in fact unlawfully arrested. As we noted above, that issue was not presented to the trial judge or the jury.” Majority op. at 21. This issue was presented to the jury. But the jury was instructed that whether the arrest was lawful or not, Valentine had no right to resist with force if the unlawful arrest threatened "only a loss of freedom.” See supra at 6. Based upon the record construed most favorably to the defendant, I conclude this arrest was unlawful. See supra at 8-9.
The majority states the jury’s finding that Valentine was not entitled to self-defense should be dispositive on the issue of the reasonableness of Valentine’s resistance. Majority at 21 ("Unfortunately, the dissent has chosen to second-guess the jury’s determination and substitute its own opinion of what occurred.”). However, the self-defense instruction considered by the jury allows a citizen to defend himself during an arrest whether the arrest were legal or not but only if he were about to be killed or seriously injured by the police. How this standard affects the reasonableness of resisting an illegal arrest threaten*54ing liberty or injury less than death or serious injury escapes me. Contrary to the majority’s assertion, the jury never passed on that issue, although at the time, Rousseau was still good law and the jury should have been so instructed.