(dissenting)—The police, acting without authority, unlawfully entered Clarence Holeman's home, seizing his son and creating a situation of arrest by combat. Because the majority opinion approves this procedure, I dissent.
Two questions are presented: whether David Holeman was illegally arrested in his home and whether the Holeman family's resistance to the invasion somehow made the police action legitimate.
The State concedes that David Holeman was arrested when the police told him that they were taking him to the station house for further questioning. Brief of Respondent, at 4. That arrest was illegal because David Holeman was in his home and the police did not have an arrest warrant. Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980); United States v. Johnson, 626 F.2d 753 (9th Cir. 1980), aff'd on other grounds, 457 U.S. 537, 73 L. Ed. 2d 202, 102 S. Ct. 2579 (1982); State v. Counts, 99 Wn.2d 54, 659 P.2d 1087 (1983). An illegal arrest is an assault and battery. State v. Rousseau, 40 Wn.2d 92, 241 P.2d 447 (1952).
For most citizens faced with criminal assault, withdrawal is the best course of action, discretion being the better part of valor. But our law recognizes that a person cannot be expected to retreat beyond his own home. The United States Constitution provides:
The right of the people to be secure in their persons, *288houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .
U.S. Const. amend. 4. The Washington Constitution provides:
No person shall be disturbed in his private affairs, or his home invaded, without authority of law.
(Italics mine.) Const. art. 1, § 7.
Although it is said in the majority opinion that a third party has no right to intervene to prevent an unlawful arrest, the United States Supreme Court has sanctioned just such action:
"... [A]n officer who acts under a void precept, and a person doing the same act who is not an officer, stand on the same footing; and any third person may lawfully interfere to prevent an arrest under a void warrant, doing no more than is necessary for that purpose." [Commonwealth v. Crotty], 10 Allen, 404, 405 [92 Mass. 403].
West v. Cabell, 153 U.S. 78, 86, 38 L. Ed. 643, 14 S. Ct. 752 (1894). The recent trend has been to restrict this right to close relatives.
One who is illegally arrested may use a reasonable amount of force to repel the assault. Persons in close relationship of affinity or consanguinity may resist an officer in making an unlawful arrest. 6 C.J.S. Assault and Battery §§ 92, 93, pp. 949, 950.
(Italics mine.) United States v. Moore, 332 F. Supp. 919, 920 (E.D. Va. 1971) (warrantless arrest in home resisted by wife). Accord, People v. Gallo, 206 Misc. 935, 135 N.Y.S.2d 845 (1954) (brother); King v. State, 132 Tex. Crim. 200, 103 S.W.2d 754 (1937) (brother); King v. State, 131 Tex. Crim. 442, 99 S.W.2d 932 (1936) (brother).
State v. Westlund, 13 Wn. App. 460, 536 P.2d 20, 77 A.L.R.3d 270 (1975), relied upon by the majority, is inapposite. In that case, unrelated third parties sought to intervene and prevent a lawful public arrest because they believed that the police officers were using excessive force. In this case, a father sought to prevent the unlawful arrest of his juvenile son in their own home. He was not an inter-*289meddling bystander, but was, rather, a citizen using reasonable means to protect the liberty of his son and his home from invasion.
Upon entering the home, the officers committed two criminal acts, assault in seizing the boy, RCW 9A.36.040, and criminal trespass in crossing the threshold, RCW 9A.52.070. These acts were so needless. The investigation was of a boy's bicycle stolen in a settled, residential neighborhood. The officers, being well armed and occupying the "high ground" were in no danger and easily could have secured the necessary warrant.2
The priceless right to defend one's home against an unlawful intrusion must be preserved. I would reverse.
Review granted by Supreme Court July 24, 1984.
The unlawful arrest of David Holeman and his family's justified resistance were all part of the same transaction taking place in a matter of seconds. Thus, I do not agree with the majority's assertion that an independent, lawful "second arrest" of David occurred.