From the opinion:
The English common-law right to resist unlawful police action existed for over three hundred years, and some scholars trace its origin to the Magna Carta in 1215. Craig Hemmens & Daniel Levin, ―Not a Law at All‖: A Call for the Return to the Common Law Right to Resist Unlawful Arrest, 29 Sw. U. L. Rev. 1, 9 (1999). The United States Supreme Court recognized this right in Bad Elk v. United States, 177 U.S. 529, 535 (1900): ―If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest.‖ The Supreme Court has affirmed this right as recently as 1948. United States v. Di Re, 332 U.S. 581, 594 (1948)(―One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases.‖).
In the 1920s, legal scholarship began criticizing the right as valuing individual liberty over physical security of the officers. Hemmens & Levin, supra, at 18. One scholar noted that the common-law right came from a time where ―resistance to an arrest by a peace officer did not involve the serious dangers it does today.‖ Sam B. Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 330 (1942). The Model Penal Code eliminated the right on two grounds: ―(1) the development of alternate remedies for an aggrieved arrestee, and (2) the use of force by the arrestee was likely to result in greater injury to the person without preventing the arrest.‖ Hemmens & Levin, supra, at 23. In response to this criticism, a majority of states have abolished the right via statutes in the 1940s and judicial opinions in the 1960s. Id. at 24–25.