¶ 44. (concurring). I concur in the mandate.
¶ 45. The majority opinion overturns a rule of law dating to the 1600s in England and to the 1848 adoption of the Wisconsin constitution. Neither the facts of this case nor public policy provides adequate cause to overturn this long-standing body of precedent.
¶ 4. The majority opinion holds that when an officer makes an unlawful, but nonviolent, arrest the person arrested does not have the right to resist. Thus, a person who resists an unlawful arrest, even without force, can be prosecuted for battery to an officer (Class D felony), disorderly conduct (Class B misdemeanor), resisting or obstructing an officer (Class A misde-
*383¶ 48. In this case a law enforcement officer attempted to question a 5-year-old boy at his home about another child's bike, which reportedly had been stolen. A youth had reported seeing the 5-year-old riding the bike. The mother of the 5-year-old refused to allow the officer to speak to the child. No one asserts that the mother was required to allow the 5-year-old child to be questioned by the officer. Indeed, the circuit court found that the mother's refusal to allow the child to be questioned by the officer was neither disorderly conduct nor obstruction of the officer.
¶ 49. Following the mother's refusal to allow the officer to question her 5-year-old son, the officer said that he would take the boy to the police station for questioning. When the mother refused this request, the
meanor), the charges brought against Ms. Hobson in this case. The majority opinion, although allowing Ms. Hobson's criminal charges to be dismissed, would subject another parent in Ms. Hobson's situation to criminal prosecution and a possible criminal record.
¶ 47. This case presents a classic situation for the right to resist unlawful arrest. It illustrates why the common law right protecting victims of unlawful arrest was developed and why it should be retained. I discuss in turn: (1) the facts in this case; (2) the majority opinion's misconstruction of the rationale underlying the common law right to resist an unlawful arrest; (3) the majority opinion's internal inconsistency in its stated concerns about escalation of violence; and (4) the majority opinion's misplaced reliance on various legal remedies to redress the wrong of unlawful arrest. For the reasons set forth I write separately.
rH *384officer called for backup and attempted to take the mother into custody.
¶ 50. The circuit court correctly found that "the officer had no authority to take a citizen who refuses to be interviewed to the police station to compel an interview there, especially a five-year-old boy." Wisconsin statutes provide that if an officer has probable cause to believe that a child under the age of 12 has committed an offense, the officer must immediately make every reasonable effort to release the child to a parent. See Wis. Stat. § 48.20(2). In this case the parent was present when the officer approached the child; yet the officer sought to remove the child from the parent's charge.
¶ 51. The officer then decided to arrest the mother. The circuit court correctly concluded that there was no lawful basis for the mother's arrest. No one disputes this conclusion.
¶ 52. In a careful and scholarly examination of the same legal authorities relied upon by the majority opinion, the circuit court concluded that the mother's right to resist the unlawful arrest should be protected. The circuit court made plain that it was deeply offended by the officer's conduct in this incident. In the hearing on the motion to dismiss, the circuit court expressed its dismay:
You and I both know that they don't take five-year-olds into custody because they think they stole a bicycle. Now, that's not the standard in this or any other community that I know of. They took this kid down there because they were hacked off because she wouldn't let them interview the child at her home.... When have you ever heard of them arresting a five-year-old and taking them into custody because they believe that a bicycle had been sto-
*385¶ 55. The majority's decision to abrogate the common law right to resist unlawful arrest rests on an important public policy consideration, one with which I wholeheartedly agree: all of us must promote peaceful settlement of disputes, not violence on the streets. Calling its ruling "a step toward deescalation," majority op. at 377, the majority opinion reasons that force begets force, violence begets violence. In other words, when an
len?. . .[Y]ou and I know that it isn't done. A report is filled out. It goes to the probation people and they decide whether to file a petition. That's what happens.
Further, the circuit court wrote, "Nothing would permit the officer to take a five-year-old child to a police station for a junior version of the 'third degree.'"
¶ 53. If the circuit court was so angered by this incident months after it occurred, imagine how the mother felt when the officers threatened to interrogate her 5-year-old son and to take him to the police station. Her distress and anger were understandably reflected by her actions.
¶ 54. The record is silent as to whether anyone witnessed the events at Ms. Hobson's home. It is unfortunate that no one intervened and persuaded her to comply with the officer's demands. Had the mother complied with the officer's demands, it might have been better in the short and long run for the mother, the child, law enforcement and the community. Nevertheless, the existence of rights, "such as the right to remain silent or to be free from unlawful searches, does not depend upon whether it is prudent for the individual to assert them." Paul G. Chevigny, The Right to Resist Arrest, 78 Yale L.J. 1128, 1137 (1969). *386unlawfully arrested person responds with measured resistance, that resistance increases the likelihood that the arresting officer will respond with greater force to subdue the person.
¶ 56. In choosing to abrogate the common law right to resist an unlawful arrest for reasons of public policy, the majority ignores the rationale behind the right. The common law right to resist an unlawful arrest was not designed to foster resistance to law enforcement officers or to encourage people to disobey them. Instead the common law right to resist unlawful arrest was designed to protect a person provoked by a wrongful arrest from being criminally charged with obstructing an officer. Professor Chevigny, a commentator upon whom the majority relies, explains that it is fundamentally unfair to punish a person who has been unlawfully arrested for expressing his or her deep emotion with measured resistance:
The right does not exist to encourage citizens to resist, but rather to protect those provoked into resistance by unlawful arrests. In the excitement of an arrest, a person is likely to respond to his emotions, and if his impulse to resist is provoked by arbitrary police behavior, it is fundamentally unfair to punish him for giving in to that impulse with measured resistance.
Paul G. Chevigny, The Right to Resist Arrest, 78 Yale L.J. 1128, 1133-34 (1969).
¶ 57. Although I share the majority's concern about avoiding the escalation of violence between law enforcement officers and those who are unlawfully arrested, I conclude that the majority's decision to abrogate the common law privilege is not really a step toward "deescalation." As Professor Chevigny notes, a *387person unlawfully arrested may understandably act out of passion; in the heat of the moment a person does not, indeed cannot, carefully consider his or her alternatives. The mother in this case did not contemplate the state of the law before responding to the unlawful arrest of her child; nor would other persons facing her situation in the future.
¶ 58. The real question here is not about escalating violence; it is about whether a person ought to be prosecuted for resistance of the kind in this case. In contrast to Justice Geske's characterization in her concurrence of other possible fact situations, in this case Ms. Hobson did not fight with the police and she was not violent. The circuit court found that Ms. Hobson "clearly used only force sufficient to attempt to prevent her illegal arrest. She flailed her legs and arms about as the police officer had 'taken her to the ground.' She did not chase an officer down the street. There is a complete absence of an intent to assault an officer. Her only evident intent was to prevent her illegal arrest. She did not assault the police officer; the police officer assaulted her."
¶ 59. The common law right to resist unlawful arrest was designed for just the situation presented in this case. A person is unlawfully arrested and is provoked to anger and emotion to resist the unlawful arrest. Under such circumstances, according to the common law, the person wrongfully arrested should not be subject to criminal prosecution.
h-1 I — I hH
¶ 60. The majority opinion does not abrogate a person's common law right to use force when resisting an arrest in which a law enforcement officer uses *388unreasonable force. The reasoning of the majority opinion is thus internally inconsistent.
¶ 61. The majority opinion retains the common law rule that a person arrested unlawfully has the right to use reasonable force when the arresting officer uses unreasonable force. This right to use reasonable force is a right of self-defense designed to protect a person's bodily integrity and health based on the rationale that while liberty can be restored through legal process, life and limb cannot be repaired in a courtroom.
¶ 62. If the majority is principally concerned with decreasing the physical risks associated with unlawful arrests, then the holding of the majority opinion should encompass those situations presenting the greatest risk of danger, those situations in which the arresting officer uses unreasonable force. The majority opinion's holding thus does not follow from its stated concern about "deescalation."
IV
¶ 63. The majority opinion attempts to bolster its holding with the explanation that in modern society it is no longer justifiable to resist unlawful arrest because legal remedies are available for victims of unlawful arrest. By asserting that adequate remedies exist to redress unlawful arrests, the majority opinion misconstrues the rationale underlying the right to resist unlawful arrest, which, as I have explained, is to protect from criminal prosecution a person who is provoked by the police to resist an unlawful arrest.
¶ 64. Furthermore, the remedies at law are not effective in this situation. The majority opinion explains that unlawfully arrested persons should go down to the police station, secure their freedom by *389making bail and later bring civil rights actions against the police. In adopting this reasoning, the majority opinion treats the experience of undergoing arrest, fingerprinting, photographing, interrogation, detention and trying to make bail as minor deviations from a person's daily routine.
¶ 65. Unfortunately the legal system does not always work so smoothly. The right to counsel, although constitutionally guaranteed, is unfortunately not available to those not poor enough to qualify for a public defender but too poor to hire their own private counsel.1 The majority opinion's reliance on civil damages actions is similarly problematic. Although a civil rights action under 42 U.S.C. § 1983 is in theory available for victims of unlawful arrest, in practice such relief is contingent on the availability and willingness of attorneys to bring such actions. Attorneys are hesitant to accept such cases when monetary damages are insignificant or difficult to prove. Likewise internal review and disciplinary procedures in police departments do not provide an adequate remedy for victims of unlawful arrest.
¶ 66. Thus, contrary to the reasoning of the majority opinion, the various procedural safeguards in the criminal justice system often fail to provide adequate redress for victims of unlawful arrest. In evaluating the legal remedies afforded to victims of unlawful arrest, this court should not wear blinders to what happens in real life or discount the indignity of being subjected to unlawful arrest, the potential physi*390cal harm of being incarcerated, and the negative consequences to reputation and employment.
¶ 67. There is no legal remedy that can rectify the harm to a young child who is interrogated by the police. In this case Ms. Hobson sought only to protect her 5-year-old son, and as the circuit court recognized, the threatened injury Ms. Hobson sought to avoid could not be remedied by the various procedural safeguards in the criminal justice system. Once her son was taken to the precinct and interrogated, no procedural safeguard, whether the right to bail or counsel, a probable cause hearing, or a civil rights action, would provide a sufficient remedy or cure.
¶ 68. Although the majority opinion correctly notes that the common law right to resist arrest has fallen into disfavor in a number of American states, I join the many judges in the United States2 and the *391British commonwealth nations3 who have continued to recognize the common law right.to resist unlawful arrest with a measured response.
¶ 69. The circuit court concluded in this case that a superior social policy is advanced by a rule permitting resistance to unlawful arrest when the health or safety of the person being arrested, or of a family member, is threatened in a manner not susceptible of subsequent cure in a courtroom. Under these circumstances the common law rule excusing a person who is provoked to reasonable resistance by unlawful state action should be retained. At a minimum, the majority opinion should adopt the circuit court's position.
¶ 70. As the circuit court wrote, "it is difficult to imagine a mother who would allow her five-year-old son to be dragged off to the station house and subjected to an illegal interrogation. It certainly would be hollow to suggest that she submit to that process and then argue about it in court after whatever harm to the child will have already occurred. The circumstances under which an individual should be allowed to resist an *392unlawful arrest are narrow. This case represents one of those exceptions."
¶ 71. For the foregoing reasons, I join the court's mandate and write separately.
According to a survey completed by the Office of the Wisconsin State Public Defender, 32 percent of persons seeking representation in 1997 did not meet the Public Defender's indi-gency criteria.
The right to resist unlawful arrest is recognized in the following cases: Ex parte Wallace v. City of Dothan, 497 So. 2d 96, 97 (Ala. 1986) (a person may use reasonable force to resist unlawful arrest); Smith v. Holeman, 441 S.E.2d 487, 491 (Ga. Ct. App. 1994) (a person has the right to resist unlawful arrest with all force necessary); White v. Morris, 345 So. 2d 461, 465 (La. 1977) (every person has a right use such force as may be necessary under the circumstances to resist unlawful arrest); In re Albert S., 664 A.2d 476, 486 (Md. Ct. Spec. App. 1995) (right exists to resist unlawful, warrantless arrest); People v. Krum, 132 N.W.2d 69, 72 (Mich. 1965) (a person may use such reasonable force as is necessary to resist an unlawful arrest); Murrell v. State, 655 So. 2d 881, 888 (Miss. 1995) (self-help is limited to those situations where the arrest is unlawful and the officer and person arrested have reason to know that it is, or where the arrest is accompanied by excessive force); Brown v. Oklahoma City, 721 P.2d 1346, 1351-52 (Okla. Ct. App. 1986) (recognizes right to resist unlawful arrest); Foote v. Commonwealth, 396 S.E.2d 851, 855 (Va. Ct. App. 1990) (a person has the right to *391use reasonable force to resist unlawful arrest; rules of self-defense determine whether the force used is reasonable).
In the oft-cited case Christie v. Leachinsky [1947] AC 573, [1947] 1 All ER 567, Lord Simonds said, "it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist that arrest unless that arrest is lawful...."
In recent years England and the Canadian province of Alberta have reaffirmed the common law right to resist unlawful arrest. See Regina v. Howell, [1982] QB 416 (in cases of unlawful arrest a person is entitled to use reasonable force to resist the arrest); Carr v. Gautheir, [1992] 97 D.L.R. 4th 651, 1992 DLR LEXIS 544, *18, 36 A.C.W.S. 3d 694 (right to resist unlawful arrest is an absolute defense if at the time of the arrest the officer knows he or she has no reasonable and probable grounds and the resistance is not excessive).