dissenting. In October of 1992, just before the general election, Governor Bill Clinton, then the nominee of the Democratic Party for President of the United States, appeared at a campaign rally on the campus of the University of Arkansas. Appellant Williams, with some members of the Arkansas College Republicans, attended the rally and displayed “Bush\Quayle” signs. Appellant was ordered to leave by an officer of the University of Arkansas Police Department. He refused. Two officers advised appellant that he was under arrest for disorderly conduct and ordered him to move out of the area. He sat down and “went limp.” He was physically removed from the scene and was charged with disorderly conduct and refusal to submit to arrest.
He was found guilty in municipal court and appealed to circuit court. In circuit court he was found guilty of refusal to submit to arrest. He appeals to this court. The majority opinion affirms the conviction for refusal to submit to arrest even though appellant was not allowed to fully present his First Amendment defense to the charge.
At the beginning of the trial in circuit court, appellant’s counsel stated that he wished to challenge the “refusal to submit to arrest” statute, Ark. Code Ann. § 5-54-103 (Repl. 1993), because as it applied to appellant, it violated the First Amendment. The city attorney responded that the constitutional challenge was untimely because it had not been raised by motion ten days prior to trial. See A.R.Cr.P. Rule 16.2(b). The circuit court took the matter under advisement and later refused to consider the constitutional challenge because it was not timely brought. The ruling was in error for two reasons. If the ruling was based on rule 16.2(b), it was in error because that rule establishes that a motion to suppress evidence must be filed ten days before the trial date. The motion was not one to suppress evidence. Rather, it was an argument that appellant had a fundamental right of free speech under the Constitution of the United States and that right, so long as lawfully exercised, was dominant over the state statute, which, as applied, was unconstitutional. Moreover, appellant’s attorney had notified the city attorney of the defense months earlier, and appellant timely raised the issue at trial..
As a result of the trial court’s ruling, appellant was not allowed to put on proof that supposedly would show that all he did was hold up a “Bush/Quayle” sign in exercise of his right to free expression. The trial court ruled that it “was irrelevant whether Mr. Williams was merely holding a sign and doing nothing else wrong or not violating any law or regulation prior to his arrest.” The trial court’s ruling was based only on the applicable parts of Ark. Code Ann. § 5-54-103, which are:
(b)(1) A person commits the offense of refusal to submit to arrest if he knowingly refuses to submit to arrest by a person known by him to be a law enforcement officer effecting an arrest; . . .
(3) It is no defense to a prosecution under this subsection that the law enforcement officer lacked legal authority to make the arrest, provided he was acting under color or his official authority.
Id. § 5-54-103(b)(1) & (3).
It is undisputed appellant refused to submit to arrest and that the university police were acting under color of official authority.
The Attorney General seeks to avoid a remand for proof on the constitutional question by conceding that the arrest of appellant “was illegal because the police lacked probable cause” to arrest appellant for disorderly conduct. The majority opinion accepts the Attorney General’s argument and, in a far-reaching opinion, holds that even when a policeman patently violates a citizen’s First Amendment rights, the citizen must voluntarily submit to that violation or be convicted of a crime. I respectfully dissent. The real question is whether a citizen ought to be convicted of a crime solely for refusing to submit to a patently unlawful deprivation of his First Amendment rights.
The common law right to resist unlawful arrest has fallen into disfavor with the General Assembly and most citizens, as well it should, for practical reasons. Today a person wrongfully arrested can make bail, utilize numerous procedural safeguards, pursue remedies, and initiate civil damage actions against the police officer and the offending government. There is the civilized notion that the place to settle a dispute over the validity of an arrest is in a court of law, and not on the campus of a university or out in the streets. However, to assert that adequate legal remedies now exist to redress false arrests is to misconstrue the rationale behind the right. The right does not exist to encourage citizens to resist arrest, but rather to protect from punishment those who passively resist representatives of the government from illegally taking away fundamental rights. Even when one wholeheartedly accepts the philosophy that unlawful arrests should be dealt with in a civil manner, there still exist a few occasions when fundamental rights guaranteed under the Constitution are patently at risk and stand to be forever lost. Under those limited circumstances it is in violation of the Constitution to convict a person for refusal to submit to an illegal arrest when that nonviolent refusal was essential to the vindication of those rights. See Paul G. Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128 (1969).
The crime of which appellant stands convicted is refusal to submit to arrest, section 5-54-103(b)(1), and not resisting arrest, section 5-54-103(a)(1). The crime of resisting arrest involves affirmative physical force and violence and creates a substantial risk to all in the immediate area. It is the common law right to actively “resist arrest” which has fallen into disfavor. Today’s notion of civility dictates that one cannot resist police by affirmative physical force even for the illegal deprivation of one’s fundamental rights. Quite different, the “refusal to submit” in this case was passively sitting down and “going limp” while the policeman wrongly deprived appellant of his right of free speech.
Freedom of speech is fundamental to the functioning of a democracy. It is a fundamental right guaranteed by the First Amendment. In the limited category of fundamental rights cases, refusal to submit to an illegal abridgement of one’s freedom of speech, without being convicted of a crime, can be essential to the vindication of the right. To dramatize the* fallacy of the reasoning of the majority opinion, assume that the policeman, instead of illegally arresting appellant, illegally arrested now President Clinton for exercising his right of free speech, but President Clinton “refused to submit” to the illegal arrest. The speech at the rally would be forever lost, and, egregiously, under the majority opinion, President Clinton would be subject to punishment for refusing to submit to a patent violation of his fundamental right. Aside from that dramatic hypothetical example, the paradigm case is the one in which the right to refuse to submit is exposed by a typical street incident: A policeman sees a group of men on a corner and tells them to move on. One refuses. In order to maintain his authority, the policeman illegally arrests the man. He refuses to submit and will be convicted of a crime for that refusal to submit. See Chevigny, supra. Another case might be the policeman who walks into a newspaper plant and tells the manager to stop the press. The manager refuses. The policeman illegally arrests the manager. He refuses to submit to the oppression and will be convicted of the crime of refusal to submit. As a matter of principle in a democratic society, it is unconscionable to convict a citizen, no matter what his or her status, for refusing to submit to the illegal deprivation of his right of free speech.
The flaw in the statutes and court decisions which purport to abolish the right to resist is that they create a situation where the citizen is trapped by the legal system. If he obeys a patently arbitrary arrest, he has submitted to oppression, and if he resists, he may be convicted for his resistance. Surely there can be no more embittering experience of the criminal process than such a conviction. The freedom to refuse to obey a patently unlawful arrest is essential-to the integrity of a government which purports to be one of laws, and not of men. Unless it is desirable to kill the impulse to resist arbitrary authority, the rule that such an arrest is a provocation to resist must remain fundamental.
Chevigny, supra, at 1147.
The “refusal to submit” to the illegal denial of one’s fundamental right of speech may be essential to the vindication of that right. As noted by one author:
First amendment rights, in particular, may need such protection. The police frequently arrest political demonstrators even though the demonstrators are acting lawfully. These arrests are often patently illegal, and mild resistance is not uncommon. Resistance, such as going limp, is part of the effort to continue the lawful demonstration. Arrests under these circumstances may be highly provocative, but provocation is not the issue here; reasonable resistance should be legitimated in order to protect the first amendment freedom. Were there no right to resist such arrests, the resisting arrest statute would afford the police an easy tool for curbing the exercise of first amendment rights. Whenever a lawful arrest for demonstrating might be barred by the first amendment, the simplest thing for the police to do would be to arrest the demonstrators unlawfully. The demonstration would then be terminated with little risk of consequences to the police; those who resisted could be convicted of obstructing an officer, while those who submitted would necessarily cease the conduct found offensive by the authorities. As applied to warrantless arrests which patently violate first amendment rights, therefore, any statute which limits the common law right to resist should be held unconstitutional.
Chevigny, supra, at 1138.
The Supreme Court of the United States has expressly held that an accused cannot be punished for violating an illegal and arbitrary police order. In Wright v. Georgia, 373 U.S. 284 (1963), six young black males were playing basketball in a public park customarily used only by whites. The police ordered the young blacks to leave the park. One asked the officer, “[b]y what authority,” but did not create a disturbance as they were transported to police headquarters. Id. at 286. They were charged and convicted of assembling “for the purpose of disturbing the public peace” and not dispersing at the command of the officers. There was no evidence of disorderly conduct or any activity which might be thought to violate a breach of the peace statute. The Supreme Court reversed, and in the pertinent part of the unanimous opinion, wrote:
Three possible bases for petitioners’ convictions are suggested. First, it is said that failure to obey the command of a police officer constitutes a traditional form of breach of the peace. Obviously, however, one cannot be punished for failing to obey the command of an officer if that command is itself violative of the Constitution. The command of the officers in this case was doubly a violation of petitioners’ constitutional rights. It was obviously based, according to the testimony of the arresting officers themselves, upon their intention to enforce racial discrimination in the park. For this reason the order violated the Equal Protection Clause of the Fourteenth Amendment. See New Orleans Park Improvement Assn. v. Detiege, 358 U.S. 54, affirming 252 F.2d 122. The command was also violative of petitioners’ rights because, as will be seen, the other asserted basis for the order — the possibility of disorder by others — could not justify exclusion of the petitioners from the park. Thus petitioners could not constitutionally be convicted for refusing to obey the officers. If petitioners were held guilty of violating the Georgia statute because they disobeyed the officers, this case falls within the rule that a generally worded statute which is construed to punish conduct which cannot constitutionally be punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and constitutionally impermissible applications of the statute. Cf. Winters v. New York, 333 U.S. 507; Stromberg v. California, 283 U.S. 359; see also Cole v. Arkansas, 333 U.S. 196.
Id. at 291-92 (emphasis added).
The majority opinion endeavors to distinguish Wright from the case at bar by stating:
First, the petitioners in Wright did not resist or refuse to submit to their arrests; consequently, the Court did not address the issues raised in this case. Second, the record does not show that appellant’s arrest was based solely upon the arresting officers’ intention to impermissibly interfere with appellant’s First Amendment rights.
The supposed distinguishing factors can only be inferred by conjecture because the trial court refused to allow appellant to present his evidence that allegedly would have shown that he just held up a “Bush/Quayle” sign and, after the illegal police order, only sat down and “went limp.” The trial court ruled that appellant did not raise his constitutional defenses in a timely manner, and, under the applicable statute, the trial court ruled that it “was irrelevant whether Mr. Williams was merely holding a sign and doing nothing else wrong or not violating any law or regulation prior to this arrest.”
Wright is directly in point and has been held to be in point by other courts. Using similar reasoning, the Supreme Court of Florida held that even though Florida had a “resisting arrest” statute, a conviction under that statute must be reversed when the act of the officer was illegal. Licata v. State, 24 So. 2d 98 (Fla. 1945); see also Livingston v. State, 610 So. 2d 696 (Fla. Dist. Ct. App. 1992).
The majority opinion also cites Walker v. City of Birmingham, 388 U.S. 307 (1967), but that case involved an injunction issued by a court. Process issued by a court stands in a fundamentally different position from an illegal police command. The federal district court in United States ex rel. Horelick v. Criminal Court, 366 F. Supp. 1140 (S.D.N.Y. 1973), rev’d on other grounds, 507 F.2d 37 (2d Cir. 1974), cogently set out the differences as follows:
Undeniably, the Court has held that a person cannot be punished for refusal to obey a police order which violates his constitutional rights. [Emphasis added.] See, e.g., Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S. Ct. 211, 15 L. Ed. 2d 176 (1965); Wright v. Georgia, 373 U.S. 284, 83 S. Ct. 1240, 10 L. Ed. 2d 349 (1963). The question remains, however, whether resistance to an unlawful arrest more closely resembles refusal to obey an unlawful police order, which is not punishable, than disobedience of a constitutionally defective court order, which the Court has held is punishable by contempt. Walker v. Birmingham, 388 U.S. 307, 87 S. Ct. 1824, 18 L. Ed. 2d 1210 (1967).
An unlawful arrest, like both a police order and a court order, can result in immediate interference with enjoyment of constitutional rights. It differs, however, from the former and resembles the latter in that an unlawfully arrested person like an unlawfully restrained one has open to him an opportunity to vindicate his rights in court. These rights are not irrevocably compromised by initial compliance as they are in the case of the person who obeys a police order and who, as a result, forever loses his chance to contest it by allowing the policeman the final say. Put otherwise, the arrest and the court order have built into them the potential of submitting the dispute to the impartial determination of the courts of law (including the appellate courts). The unlawful police order, on the other hand, if obeyed, makes the policeman the final arbiter. [Emphasis added.] This distinction persuades us that Horelick’s situation is controlled not by Shuttlesworth and Wright, but by Walker.
Id. at 1151.
In summary, it is fundamentally correct to excuse a citizen who pas'sively refuses to submit to an unlawful police action that takes away his First Amendment rights. The purpose of excusing that person is not to encourage violence in the streets, but to preserve the sense of personal liberty that is inherent in the right to reject illegal commands. To permit police officials to illegally provoke citizens into committing the crime of “refusing to submit” to an unlawful arrest creates a trap for citizens which must, in the long run, injure the integrity of the judicial system and damage the democracy. I would remand this case so that the constitutional issue might be developed by the parties and considered by the circuit court. For these reasons, I respectfully dissent from the majority opinion.