concurring in part and dissenting in part:
I concur in Parts I and II of the majority opinion and dissent with respect to Part III, the section holding that a citizen cannot resist an unlawful arrest.
This decision is against a tradition existing for hundreds of years in both English and American common law.1 In this judge’s opinion it is contrary to holdings of the United States Supreme Court. Nevertheless, there is respectable federal and state law supporting the majority opinion.2 My reasons for dissenting are twofold. First, the majority opinion is not in accord with Supreme Court precedent. Second, the rule announced is too broad.
The majority reasoning is that a citizen, if unlawfully arrested, should go along to the police station, make bond [the majority assume he can] and later sue the policeman for the tort of unlawful arrest. The citizen is not justified in using even passive force to resist.
An analysis of the problem has some difficulties. It requires consideration of these factors:
(1) The extent of the unlawfulness of the arrest. The technical invalidity of an otherwise valid arrest warrant at one extreme and a totally unjustifiable war-rantless arrest with force at the other.
(2) The extent of the force used by the arrestee in resisting. Killing at one end of the spectrum and passively “going limp” at the other.
(3) The extent of the force used by the arresting officer and the circumstances surrounding the arrest. For example, is the arrestee in his home, is the offense a felony or a misdemeanor, is the arrestee *1317apt to flee if force is not used to make the arrest, is the officer covering his tracks for a wrongful arrest by charging the arrestee with resisting?
(4) One’s philosophy about the relationship between the government and the citizen, particularly the effect of the fourth amendment prohibiting arrest absent a warrant or probable cause.
My conclusion is that a citizen should have the right to resist unlawful arrest and, if charged with the offense of resisting, receive an instruction on the right to resist arrest. This is especially true under circumstances where there is no arrest warrant, the citizen does not have any reason to believe he has committed a criminal offense in the presence of the officer, and the resistance does no bodily harm to the officer. Under Danehy’s version of the evidence, he was entitled to the requested instruction in this case. If Danehy’s account was accepted by the jury, it is for the jury to weigh his rights vis-a-vis the officer.
The Supreme Court in United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948), had the following to say about the right to resist arrest:
The Government also makes, and several times repeats, an argument to the effect that the officers could infer probable .cause from the fact that Di Re did not protest his arrest, did not at once assert his innocence, and silently accepted the command to go along to the police station. One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases.
Id., 332 U.S. at 594, 68 S.Ct. at 228 (emphasis added). One could argue that the statement in Di Re is dicta. However, this also is the holding in John Bad Elk, 177 U.S. at 536, 20 S.Ct. at 732, decided by the Supreme Court in 1900.
John Bad Elk was a ease where the arres-tee killed the arresting officer and was convicted of murder by the jury and sentenced to be hanged. The trial judge refused to give an instruction on the right to resist arrest. The Supreme Court reversed and held that an instruction should have been given to the jury and that
the offense of the party resisting arrest would be reduced from what would have been murder if the officer had had the right to arrest, to manslaughter. What would be murder if the officer had the right to arrest might be reduced to manslaughter by the very fact that he had no such right. So an officer, at common law, was not authorized to make an arrest without a warrant, for a mere misdemeanor not committed in his presence ... 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, 534, 20 S.Ct. 729, 731, 44 L.Ed. 874 (1900) (emphasis supplied).
In my opinion, none of the cases cited by the majority support the conclusion reached that a citizen can never resist an unlawful arrest. The majority enacts a new federal statute. I disagree with the majority’s conclusion that United States v. Johnson, 542 F.2d 230, 233 (5th Cir. 1976), controls this case. In Johnson, the defendant was one of three persons in an automobile being chased by FBI officers who suspected the three of being implicated in a bank robbery. The flashing red light and siren of the agents’ car was on as the chase began. A minor collision occurred, and the defendant jumped out of the pursued car with gun in hand and pointed it at one of the agents who fired his weapon. The court stated:
Thus we hold that the mere invalidity of a law officer’s conduct under the fourth amendment, without more, can never justify the threat of deadly force in opposing the officer.
Ibid, at 233 (footnote omitted). The facts of Johnson differ sufficiently from the *1318present case being considered by this panel to warrant a different result.
United States v. Cunningham, 509 F.2d 961 (D.C. Cir. 1975), is not persuasive. In that case, the defendants were resisting being placed in a police lineup after a court order directed that they participate in the lineup. Thus, the facts are too different to influence a decision in the instant case. United States v. Martinez, 465 F.2d 79 (2d Cir. 1972), is inapposite because the officers had probable cause. The court remarked: “Even were the arrest without probable cause, Martinez was not justified in responding with the excessive force he displayed.” 465 F.2d at 82. As I understand the facts of the case before us, Danehy claims that he was only passively resisting arrest and that he used no force. Thus, I think the instruction should have been given.
United States v. Simon, 409 F.2d 474 (7th Cir.), cert. denied, 396 U.S. 829, 90 S.Ct. 79, 24 L.Ed.2d 79 (1969), is a case involving a narcotics arrest where the court held there was probable cause and the officers had information leading them to believe that Simon was about to leave the country. They went to his home, identified themselves, and told Simon they were there to arrest him. Simon told the agents he was not going anywhere and kicked one agent before they could put handcuffs on him. United States v. Ferrone, 438 F.2d 381 (3d Cir. 1971), involved an invalid search warrant being executed by Internal Revenue Service agents, and the defendant kicked and elbowed the agents.
I do not think any of these circuit court opinions are relevant because none involve a requested instruction to the court. Instead, they involved the sufficiency of the evidence to support a conviction for resisting arrest. That question is not before us. If Danehy’s instruction had been given and he had been convicted, I would elect to affirm because the officers testified that Danehy rammed one of them into the bulkhead and began kicking at another. However, that is not his theory. Under our system,3 if the law permits an acquittal upon any theory of the defendant which is supported by some evidence, then the defendant is entitled to a jury instruction on that subject. That is the holding in John Bad Elk, supra. None of the cases cited by the majority involve either the factual or legal position stated by Danehy, and I think the trial court should have given the instruction.
. Hopkin Huggert’s Case, 84 Eng.Rep. 1082 (K.B. 1666); John Bad Elk v. United States, 177 U.S. 529, 20 S.Ct. 729, 44 L.Ed. 874 (1900).
. A cursory review of the law of the various states with respect to right to resist an unlawful arrest indicates that 16 states have abolished the common law right to resist either by statute or judicial action, and at least 10 states recognize the continued vitality of the common law right. The Model Penal Code § 3.04(2)(a)(i) reads as follows:
(2) Limitations on Justifying Necessity for Use of Force.
(a) The use of force is not justifiable under this Section:
(i) to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful .. .
I find no clear federal rule other than that set out in the Supreme Court cases cited in the text. A helpful annotation on the subject is in 44 A.L.R.3d 1078. This annotation notes several law review articles on the subject.
. As the Court of Appeals for the District of Columbia Circuit has said:
We do not intend to characterize the case for the defense as either strong or weak. That is unnecessary, for “in criminal cases the defendant is entitled to have presented instructions relating to a theory of defense for which there is any foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility. He is entitled to have such instructions even though the sole testimony in support of the defense is his own.” (citations omitted).
Tatum v. United States, 1950, 88 U.S.App.D.C. 386, 190 F.2d 612, 617, quoted with approval in Strauss v. United States, 5 Cir. 1967, 376 F.2d 416, 419.