dissenting.
I dissent from the majority opinions for two reasons. The first is my adamant disagreement with the characterization of the actions of the officers as set out in the majority opinion. I do not believe the scant deposition evidence bears out the portrayal made by the majority. The record does indicate that one of the officers was the victim of an attack and that he reacted by attempting to restrain the plaintiff from her attack by holding her arm. The majority justifies the plaintiff’s assault upon the officer as a proper and legal response to an unlawful seizure.1 My disagreement with the application of the anachronistic rule of law that would permit such an uncalled for violent reaction constitutes the second ground for my dissent.
In considering whether to perpetuate what I believe to be an obsolescent rule of law, it is important to reflect upon the role of the modern day law officer and to compare the societal setting in which the outdated rule was applied with that of our modem world.
First of all, it is important to differentiate between the police officer and an individual acting without any authority of law. Policemen are, of course, vested with a societal purpose by mandate. They are charged to enforce our laws and to bring to justice those individuals who break them. They do not intrude into the lives of citizens for personal reasons. The confrontations resulting from a police officer’s work are imposed upon him as a part of his duty. He is charged to enforce our laws and to keep the peace, and this latter responsibility generally means being thrust into situations where the peace is tenuous, at best, or already broken. In such situations, an officer must often make decisions of legal import without the benefit of leisurely reflection as have the writers of this decision. The officer of the law, in carrying out the societal duties delegated to him, must exercise his best judgment on the spot and then go on with his job, leaving the final judgment regarding the legality or correctness of his actions to be determined after the fact. That judgment may well be that the officer erred. It is inconceivable, however, that such a Monday morning determination could constitute ex post facto justification or legal excuse for violent resistance to the officer’s actions. If such is the law then the law needs to be changed. Indeed, such changes have been made in many jurisdictions as modern societal circumstances have seemed to dictate.
The Arizona Supreme Court points out those changing circumstances and the resultant need for a change in the antiquated rule.
The common law rule allowing persons to resist unlawful arrest arose under circumstances significantly different from those existing today.
“The law of arrest by peace officers illustrates the discrepancy between law in the books and the law in action. The former not only antedates the modem police department, but was developed largely during a period when most arrests were made by private citizens, when bail for felonies was usually unattainable, and when years might pass before the royal judges arrived for jail delivery. Further, conditions in the English jails were then such that a prisoner had an excellent chance of dying of disease before trial....
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... The rule developed when long imprisonment, often without the opportunity of bail, ‘goal [sic] fever,' physical torture, and other great dangers were to be apprehended from arrest, whether legal or illegal....
When the law of arrest developed, resistance to an arrest by a peace officer did not involve the serious dangers it does today. Constables and watchmen were armed only with staves and swords, and the person to be apprehended might successfully hold them off with his own weapon and thus escape.” Warner, The Uniform Arrest Act, 28 Va.L.Rev. 315, 315, 330 (1942).
Moreover, the right to resist developed when the procedural safeguards which exist today were unknown.
“One who suffers the imposition of an unlawful police search has the assurance that any evidence so acquired is rendered inadmissible in a subsequent criminal trial by the exclusionary rule. Likewise any incriminating evidence obtained by exploiting an illegal arrest will be excluded in a subsequent criminal trial, [citation omitted]. And in any event damage remedies are available in the federal courts for violations of constitutional rights stemming from either an unlawful search or arrest.” United States ex rel. Kilheffer v. Plowfield, 409 F.Supp. 677, 680-81 (E.D.Pa.1976).
State v. Hatton, 116 Ariz. 142, 568 P.2d 1040, 1045 (1977).
Numerous cases have held that there is no right to resist a search warrant later found to be illegal. United States v. Woodring, 536 F.2d 598 (5th Cir.1976), cert denied 429 U.S. 1003, 97 S.Ct. 535, 50 L.Ed.2d 615 (1976); United States v. Ferrone, 438 F.2d 381 (3d Cir.1971), cert, denied, 402 U.S. 1008, 91 S.Ct. 2188, 29 L.Ed.2d 430 (1971). Even though the judicial involvement in a search warrant is an added protection for the rights of the individual involved, the same policy considerations apply to the denial of the right of violent resistance to the acts of an officer engaged in the performance of his official duties. The officer engaged in the performance of his duties (as opposed to one engaging in a personal frolic of his own) is entitled to carry out his tasks without fear of violent resistance. Likewise the “victim” in our current society has too many legal remedies available for redress to permit, condone, or encourage physical “self-help” that is likely to result in injury or death. The matter was well stated by a New Jersey appellate court, which abrogated the common law right to resist illegal arrest:
Force begets force, and escalation into bloodshed is a frequent probability. The right or wrong of an arrest is often a matter of close debate as to which even lawyers and judges may differ. In this era of constantly expanding legal protections of the rights of the accused in criminal proceedings, one deeming himself illegally arrested can reasonably be asked to submit peaceably to arrest by a police officer, and to take recourse in his legal remedies for regaining his liberty and defending the ensuing prosecution against him. At the same time, police officers attempting in good faith, although mistakenly, to perform their duties in effecting an arrest should be relieved of the threat of physical harm at the hands of the arrestee.
State v. Koonce, 89 NJ.Super. 169, 183-184, 214 A.2d 428, 436 (1965).
Thus, the trend in this country has been away from the old rule and toward a resolution of disputes in court. Since State v. Koonce, ten additional states have adopted by judicial decision2 and nineteen states by *1356legislative enactment3 the view that a person may not resist an unlawful arrest which is accomplished without excessive force. I see no reason why this rule should not also extend to prohibit violent reaction to an unlawful seizure.
Given the availability of reasonable bail, Slack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 1 (1951), the right to appointment of counsel by the court, Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), and the right to a prompt judicial determination of probable cause following arrest, Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the ar-restee who feels that the police have exceeded their authority is given fair assurance that the burdensome impact of any unlawful arrest will be minimized. The courts also provide speedy remedies for those who feel they have been illegally deprived of their property.
Consequently, it does not seem consistent with the needs of modern society to continue to rely upon an anachronistic doctrine that carries with it such a probability of harm to our private citizenry and law enforcement officers. I would, therefore, hold that, in the absence of excessive or unnecessary force by an arresting officer, a person does not have the right to forcefully resist arrest, search, or seizure by a law enforcement officer engaged in the performance of his duties even though such action on the part of the officer may be ultimately determined to -be illegal. I believe as long as an officer’s actions are not patently illegal or obviously outside the scope of his public office and authority, that the law should require citizen compliance with his official actions and demands and should abhor and prohibit violent resistance.
I believe such a conclusion would herein justify the police officer’s actions in subduing and arresting the plaintiff and would require affirmance of the trial court.
. The special concurring opinion seems to justify the attack upon the officer as a justifiable reaction to what it depicts as an illegal search. The scant evidence before us, however, clearly indicates the attack was occasioned by the officers’ impoundment of the automobile. The record does not even clearly indicate whether the plaintiff had knowledge of the officers’ entry into the garage to view the vehicle’s license plate. In any event, I fail to see that such a “heinous" intrusion should subject the officer and private citizen involved to violence.
. See Miller v. State, 462 P.2d 421, 422 (Alaska 1969); State v. Hatton, 116 Ariz. 142, 147-148, 568 P.2d 1040, 1046 (1977); State v. Richardson, 95 Idaho 446,451, 511 P.2d 263, 268 (1973), cert. denied, 414 U.S. 1163, 94 S.Ct. 928, 39 L.Ed.2d 117 (1974); State v. Thomas, 262 N.W.2d 607, 610-611 (Iowa 1978); State v. Austin, 381 A.2d 652, 655 (Me.1978); In re Welfare of Bums, 284 N.W.2d 359, 360 (Minn.1979); State v. Nunes, 546 S.W.2d 759, 762 (Mo.App.1977); State v. Doe, 92 N.M. 100, 102-103, 583 P.2d 464, 467 (1978); Columbus v. Fraley, 41 Ohio St.2d 173, 179-180, 324 N.E.2d 735, 740 cert, denied, 423 U.S. 872, 96 S.Ct. 138, 46 L.Ed.2d 102 (1975); State v. Blaine, 133 Vt. 345, 348, 341 A.2d 16, 18 (1975).
. See Ala.Code § 13A-3-28 (1982); Ark.Stat. Ann. § 41-512 (1977); Cal.Penal Code § 834a (Deering 1971); Colo.Rev.Stat. § 18-8-103(2) (1978); Conn.Gen.Stat. § 53a-23 (1981); Del. Code Ann. tit. 11, § 464(d) (1979); FIa.Stat. § 776.-051(1) (1976); Ill.Ann.Stat. ch. 38, § 7-7 (Smith-Hurd 1972); Iowa Code § 804.12 (1980); Mont.Code Ann. § 45-3-108 (1981); Neb.Rev. Stat. § 28-1409(2) (1979); N.H.Rev.Stat.Ann. § 594:5(1974); N.Y. Penal Law § 35.27 (McKinney 1975); Or.Rev.Stat. § 161.260 (1981); 18 Pa.Cons.Stat.Ann. § 505(b)(1), (2) (Purdon 1973); R.I.Gen. Laws § 12-7-10 (1981); S.D. Comp.Laws Ann. § 22-11-5 (1978); Tex.Penal Code §§ 9.31(b)(2), 38.03 (Vernon 1974); Va. Code § 18.2-460 (1982). See also Ky.Rev.Stat. § 520.090 (1975); Model Penal Code § 3.04(2)(a)(i) (1974).