concurring in part and dissenting in part:
I concur that all charges against William Villarreal should be dismissed and that the charges of obstructing and resisting a peace officer against Brett Villarreal should be dismissed. I believe that that is a result required for the reasons stated in the opinion, which addresses the problems raised by the officers’ improper entry into the Villarreal home in making the arrest of James Upson.
I disagree, however, that the three counts of aggravated battery against Brett Villarreal should be dismissed. In this case it is uncontested that Brett Villarreal was aware that the men in his house on August 19, 1988, were peace officers. The officers were engaged in an official act, that being the arrest of James Upson. Although Brett Villarreal considered the officers’ entry into the Villarreal home to be unlawful, and it was, in fact, unlawful, Brett Villarreal was without justification to use force in attempting to stop the arrest of James Upson. To hold otherwise is to declare open season on peace officers and to encourage, rather than dissuade, remedies of self-help in situations such as this.
In my view there is considerable precedent to support the position that a person may not use force to resist arrest even though the arrest is unlawful. I would suggest that this is true, whether the person is resisting his own arrest, or interfering in the arrest of another. People v. Taylor (1983), 112 Ill. App. 3d 3, 444 N.E.2d 822; People v. Taylor (1977), 53 Ill. App. 3d 810, 368 N.E.2d 950; People, v. Gnatz (1972), 8 Ill. App. 3d 396, 290 N.E.2d 392.
I believe the officer’s conduct fits clearly into the language of the aggravated battery statute which is designed to protect him in the execution of his official duties, and I don’t believe he loses the protection of the statute, even though his act of making an arrest is after what has been determined to be an unlawful entry into a private home. I believe to hold otherwise is a serious departure from the accepted precedent and would lead to the result that officers who were mistaken regarding the legality of their acts could be harmed in attempting to execute their duties with impunity without legal consequences being available against obvious wrongdoers.
Accordingly, I would reinstate the aggravated battery charges against Brett Villarreal and remand the matter to the trial court.