(dissenting).
I join in Judge Bench’s dissent and add the following comments. The majority opinion allows the State to charge a citizen who is physically attacked by a police officer for resisting an unlawful and unconstitutional act with the crimes of interfering with a police officer and assault on a police officer. Although the defendant fought back after the officer’s initial attack, it is perfectly clear that the officer initiated the violence and then arrested the defendant for fighting back. The shocking consequence of the Court’s ruling is that an officer seeking to conduct an unconstitutional search may physically attack a citizen and then charge that citizen with a crime for defending himself. The majority’s holding that the police officer’s conduct was within his “scope of authority” is plainly startling. To reach such an eccentric result, the Court ignores legislative intent expressed in an amendment to the assault statute, opts to follow what it says is the trend of cases, and simply ignores the constitutional right that the defendant was entitled to rely on.
The incident in this case was precipitated when a Vernal City police officer undertook a concededly unconstitutional search which the defendant resisted by placing his arm in a position to bar the doorway when he found the officer had no warrant. The officer then shoved the defendant backward with such force that he was thrown a distance of eight feet against a table that collapsed.
Gardiner was charged with and convicted of assault against a peace officer in violation of Utah Code Ann. § 76-5-102.4 (1990) and interfering with a peace officer in violation of Utah Code Ann. § 76-8-305 (1990). The bulk of the majority opinion is addressed to the question of whether a citizen has a common law defense of self-defense to unlawful action by a police officer. The majority does not give any weight to the fact that the officer initiated the violence. The majority and the trial courts try to tiptoe around the issue on the trial court’s finding that the defendant initiated the violence because the defendant’s “demeanor” was “hostile.” Apparently citizens must be either meek when their rights are violated or suffer police-initiated violence. It is, of course, clear that if that conviction fails, the other conviction must also fail because the arrest would be unlawful, as Judge Bench states.
The key issue in this case, as Judge Bench points out, is whether the State proved the elements of the crime of assault on a police officer. The majority pays scant attention to the issue and deals with it in a most conclusory fashion. The legis*577lative history of the assault statute gives guidance in construing that provision. A 1987 amendment to that statute indicates a legislative intent to make an assault on an officer a crime only when the officer is acting within his or her authority. It is not enough to show that an officer was on duty and performing his duties. Prior to the 1987 amendment, the assault statute read:
Any person who assaults a peace officer, with knowledge that he is on duty, is guilty of a class A misdemeanor.
Utah Code Ann. § 76-5-102.4 (1978) (emphasis added). The amendment made clear that being “on duty” was not sufficient: The amended statute now reads:
Any person who assaults a peace officer, with knowledge that he is a peace officer, and when the peace officer is acting within the scope of his authority as a peace officer, is guilty of a class A misdemeanor.
Utah Code Ann. § 76-5-102.4 (1990) (emphasis added). Now, to constitute a crime, an assault must be directed against an officer who is acting “within the scope of his authority.”
After Officer Hatzidakis announced his intention to enter the hangar to check for minors, Gardiner, who was in the building, told the officer his name and that his father owned the building. Gardiner asked Hatzidakis if he had a warrant, and the officer replied that he did not. Gardiner then told Hatzidakis he could not enter the building and stepped forward and extended his arm to block Hatzidakis’s entry. No physical contact occurred between Gard-iner and the officer when Gardiner blocked the doorway. At this point, the officer shoved Gardiner. The trial court found that Hatzidakis “perceived” Gardiner’s action in blocking the doorway to be threatening and on that basis found that the officer’s use of force was reasonable and not excessive. That finding is wrong; the fact is undisputed that the officer initiated the first use of force and that force was clearly excessive.
The Fourth Amendment gives a citizen a right to refuse to consent to an entry and search. The assertion of that right cannot be a crime.1 Schneckloth v. Bustamonte, 412 U.S. 218, 233, 93 S.Ct. 2041, 2050, 36 L.Ed.2d 854 (1973); Camara v. Municipal Court, 387 U.S. 523, 530-33, 87 S.Ct. 1727, 1731-33, 18 L.Ed.2d 930 (1967); United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir.1978); City of Middleburg Heights v. Theiss, 28 Ohio App.3d 1, 4, 501 N.E.2d 1226, 1229 (1985). See generally 1 W. La-Fave, Search and Seizure § 1.13(b) (2d ed. 1987). Despite that law, the majority holds that the officer acted within the scope of his authority because he “responded to an anonymous phone call” to investigate a “loud party” and was “in uniform and on duty at the time he responded to the call.” That is tantamount to saying that virtually anything an officer does is within his authority.
The better-reasoned cases reject that approach. The Idaho Court of Appeals, in State v. Wilkerson, 114 Idaho 174, 180, 755 P.2d 471, 477 (Idaho Ct.App.), aff'd, 115 Idaho 357, 766 P.2d 1238 (1988), construed a statute which used the phrase “duty of his office” and stated that the phrase includes “only those lawful and authorized acts of a public officer. To hold otherwise would clothe an officer with protection from resistance based only on his status as an officer and would render the [balance of the statute] mere surplusage.” An illegal search by an officer cannot be within the officer’s scope of authority. People v. Swiercz, 104 Ill.App.3d 733, 737, 60 Ill.Dec. 1, 2, 432 N.E.2d 900, 902 (1982), held that an officer’s entry into an apartment without a warrant and without exigent circumstances to search for a suspect was not an “authorized act” which was required to *578support a conviction for obstructing a police officer. In State v. Hauan, 361 N.W.2d 336, 339-40 (Iowa Ct.App.1984), the court ruled that an officer who exceeded the scope of a search warrant was not engaged in his “official duties” and, therefore, the defendant was not guilty of interference with official acts. In my view, the officer’s use of force in executing an illegal search in this case was not within the scope of his authority. Even if the law were otherwise, it is beyond question that an officer who physically attacks a citizen for refusing to consent to an illegal search is patently beyond his authority.
The majority asserts the position, also expressed in Justice Ellett’s dissent in State v. Bradshaw, 541 P.2d 800, 805-06 (Utah 1975), that procedural safeguards are sufficient to protect the rights of those who are unlawfully arrested. In my view, that position is unrealistic. One author has observed that “such protections are realizable only if the defendant has some reliable way of showing that the police acted unconstitutionally.” Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128, 1134-35 (1969). The remedies the majority relies on to justify denying a citizen the right to resist unlawful conduct are of little value. A citizen who must endure a stay in jail and the expense of posting bail and obtaining an attorney is simply doubly wronged. Empirical studies show that administrative review of police abuse is ineffectual as a remedy for police misconduct; civil damages are inadequate because an “action may take several years, and the plaintiff may have a difficult time finding a lawyer willing to spend the necessary time on his case unless he has been injured badly enough to give rise to large damages.” Id. at 1135-36.
The majority opinion abolishes the right of a citizen to use reasonable force to resist an unlawful act by a police officer and holds that the criminal code does not provide for a defense of reasonable resistance to unlawful police conduct. This construction of the criminal code is erroneous. The majority states that “the enactment of ... specific and varied defenses and the failure to enact any general illegality defense ... impliedly preclude[s] us from finding any generally available common law right to resist_” In essence, the majority concludes that only statutorily defined defenses are available in Utah. The code does not purport to state the only allowable defenses. For example, in State v. Sessions, 645 P.2d 643 (Utah 1982), we recognized a defense not then found in the code, although that defense is now contained in the code. Furthermore, everyday practice and common sense disprove the majority’s casual assertion that only statutory defenses are recognized in Utah. For example, former jeopardy is a constitutional defense not mentioned in that part of the code dealing with affirmative defenses. Beyond doubt, that defense is, and must be, recognized in Utah.
The majority’s position is unsupported by any authority from a state which has adopted the Model Penal Code and is simply incorrect. The current criminal code was adopted from the Model Penal Code. The commentaries to the Model Penal Code state:
The status of common law defenses ... is not entirely clear. Of the jurisdictions that have enacted or proposed revised penal codes since promulgation of the Model Penal Code, six have specifically retained common law defenses. Five of these are jurisdictions that have abolished or would abolish common law offenses; one jurisdiction, Florida, has explicit provisions retaining both common law offenses and common law defenses .... Only the proposed code of Maryland specifically abolishes common law defenses.
Even some of those enacted and proposed codes that explicitly state that defenses shall be governed by their provisions may not be entirely clear with respect to common law defenses. While such provisions would appear to be limiting defenses to those provided by the code, two that state that the code “shall govern ... the construction and application of any defense ...,” specifically retain common law defenses.
*579Model Penal Code § 1.05 comment 5, at 82-83 (Official Draft and Revised Comments 1985) (footnotes omitted). The comment notes that although adoption of the Model Penal Code “should render common law defenses unnecessary,” the issue is dependent on the nuances of the code in each jurisdiction, and the “significance of common law defenses would be greater” in some jurisdictions. Id. at 83 & n. 53.
I submit that a citizen should have the right to resist, in a reasonable manner, acts that are clearly unlawful. Although fine points of law ought not to be a spark for violent confrontations, the law ought to favor the citizen against clearly unconstitutional conduct, most especially when an officer initiates violence and uses excessive force. “The purpose of the right is not to encourage violent attacks on policemen, but to preserve the sense of personal liberty inherent in the right to reject arbitrary orders.” Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128, 1150 (1969).
. Gardiner's actions were in response to an illegal search, but many of the cases deal with an unlawful arrest. An illegal search may be as invasive as an unlawful arrest. See, e.g., People v. Wetzel, 11 Cal.3d 104, 113 Cal.Rptr. 32, 520 P.2d 416 (1974); State v. Gallagher, 191 Conn. 433, 465 A.2d 323 (1983). See generally 1 W. LaFave, Search and Seizure § 1.13 (2d ed. 1987). Furthermore, a person cannot be convicted of a crime for failing to obey a police officer’s order if that order is violative of the United States Constitution. Wright v. Georgia, 373 U.S. 284, 291-92, 83 S.Ct. 1240, 1245, 10 L.Ed.2d 349 (1963).