¶ 78. (concurring). I write separately to address the concurrence of Chief Justice Abrahamson. Although the majority opinion abrogates a common law defense, I believe that few persons actually assumed that because of early common law, citizens still had the right to physically resist an unlawful, nonviolent arrest. In fact, this is the first time in our state's history that this specific issue has been raised before this court.
¶ 79. The majority opinion discusses why historically such a right to resist developed. However, over time our system of justice has substantially changed, giving arrestees increased legal protections. Any argument in favor of the protection against prosecution afforded by the right to resist is far outweighed by the substantial harm that can certainly occur. I am convinced that if the chief justice's concurrence's position became the majority opinion, violence toward police officers and others would only escalate after our opinion was issued. A widespread belief that one could legally fight with the police and be immune from prosecution if a judge later concludes that the arresting officers lacked probable cause could certainly increase the violence that police already frequently face.
¶ 80. Although the facts of this case are troubling, Ms. Hobson has a potential remedy for the unlawful arrest of her child. The chief justice's concurrence criticizes the majority opinion because it advocates "that unlawfully arrested persons should go down to the police station, secure their freedom by making bail and later bring a civil rights action against the police." Chief Justice Abrahamson concurring op. at 388-89. The concurrence contends instead that there is a need to continue to recognize immunity for those arrestees and family members who resist and *395fight with the police when an officer is making what turns out later to be an unlawful, but nonviolent arrest. In other words, persons who, from their vantage point, do not believe that an officer is lawfully arresting either themselves or a family member, could start fighting with that officer in order to try to stop the arrest. Protection against criminal prosecution in those instances could lead not only to serious injuries of officers, but could escalate the violence among the participants and observers of the challenged arrest because the officers then would be compelled to use force to stop the attack on themselves.
¶ 81. Many people, subjected to an arrest, will fight with the police. Police, arrestees, and others are often injured in the course of those arrests. If this court would continue to recognize immunity for physical resistance of an arrest by an officer who is not exerting unreasonable force and who mistakenly believed that he or she had probable cause to arrest, we would be encouraging arrestees to violently settle their legal dispute with the officer in the street rather than with the judge in a courtroom. This court ought to discourage citizens from engaging in violence against police officers and tell them to challenge the lawfulness of any arrest in court.
¶ 82. I am authorized to state that Justice Donald W. Steinmetz and Justice Jon P. Wilcox join in this concurrence.