What if I'm arrested?
by Gary Hunt
Outpost of Freedom
This question is one of the more frequently asked questions in the Patriot community. It is an issue that is becoming more prevalent and worthy of addressing for it is the future for many of us who seek to resurrect the Constitution. It is also one that I have become familiar with over the past few years, by experience, by study and as a result of what I have seen occur in the community.
To put the subject in proper perspective, it is necessary to understand what the Founders have said on the matter, what the supreme court has said and what experience has shown to best serve us under that circumstance.
First we will discuss what it meant to the Founders. The initial additions to the Constitution for the United States of America known as the Bill of Rights were adopted as a condition to ratification of the Constitution. Whether the amendments were a good idea, or not, has been argued for over two centuries. The question at the time was whether the adopting of amendments specifying certain protections might lead subsequent generations to believe that only those rights were ~ protected. As a result of this concern the Ninth and Tenth Amendments were adopted to assure that future generations would recognize the existence of Individual Rights and States Rights. The Tenth, we are all familiar with, is the amendment that is being asserted by state after state in an effort to curtail the proliferation of usurpation of unlawful authority by the federal government. The Ninth, however, was adopted with the intention of clarifying the issue of rights beyond those enumerated in the Bill of Rights. The Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Little need be said to understand that the people retained anything not addressed and not falling in the realm of those enumerated. Not even the state would ascend to jurisdiction in certain matters. I bring this up now, but we will discuss the Ninth in more detail later. What we are primarily concerned with at this point is the Fifth Amendment, or at least the portion underlined below: No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Let's break that first portion down so that we might better understand exactly what the Founders meant. No person (this includes people and persons in the modern concept) shall be held to answer (held to answer, quite simply, means arrested - held, or detained until they are made to answer) for a capital or otherwise infamous crime. (Capital crimes are those punishable by execution, infamous crimes are those that we now refer to as felonies) unless on a presentment or indictment of a Grand Jury (Grand Juries are made of people, not of government. a presentment or indictment is the result of a true bill issued by the Grand Jury). It is clear by this amendment that ONLY the people could decide that one's liberty could be taken away. The government was never endowed with that authority to make the decision to arrest anybody, except under the condition stated in the Amendment.
Perhaps this is best understood if we look at what Liberty really is.
liberty 1. Exemption from slavery, bondage, imprisonment, or control of another. 2. Freedom from external restraint or compulsion (Webster's New Collegiate Dictionary) .
LIBERTY Freedom; exemption from extraneous control. The power of the will to follow the dictates of its unrestricted choice, and to direct the external acts of the individual without restraint, coercion, or control from other persons. (Black's Law Dictionary - Third Edition)
It might then be said that Liberty is the freedom to live life without fear of restriction or Limitation, except to the point that this expression can not be of a nature that would cause injury to another. Liberty, then, is our very life.
Let us consider that most states might allow you to use force to retain your property, say, money. We might look at why the Founders perceived Liberty in the way that they did. Money is simply a conversion of your time into a more readily exchangeable form. Money is the result of your energy, time and life, being expended. Money, therefore, is the very byproduct of the productive portion of your life. Any goods that you exchange your labor or money for is then property that has resulted from that same sort of exchange. Life, or time, is the very raw form of all property. Isn't it, then, perhaps more valuable than the commodity it is exchanged for? If so, then the loss of the time that can be exchanged for money or property is equal, or more valuable than the byproduct itself.
If the right to protect property is existent, then the right to protect life, or time, must be equally existent. If that right extends to the use of force for property or money, then it must be equally so for Liberty. Even if that right does not extend to the right to use force in protecting property, surely it would extend to the protection of life in the basic form of Liberty. For example, if a kidnapper were to enter your home intent on taking the Liberty of you or a member of your family, surely the right to use force exists in this circumstance. Most states, and the federal government have even allowed that kidnapping may be capital in nature. If the state has the right to take a life for stealing that "commodity" (life, time or Liberty) then surely that right extends to the People of this great nation. What the Supreme Court says
This would explain the decision that was rendered by the United States Supreme Court in John Bad Elk v. United States (177 U.S. 529). In this case, three law enforcement officers threatened John Bad Elk with arrest. The officers had been sent by their boss to arrest John. The officers were acting in good Faith, but their boss had no warrant and the arrest would not meet the legal criteria. The initial court, based upon the instruction from the judge, found Bad Elk guilty of murder for shooting and killing one of the officers, John Kills Back. It was merely the threat of arrest that forced Bad Elk to action. The charge to the jury was as follows: "The deceased, John Kills Back, had been ordered to arrest the defendant; hence he had a right to go and make the attempt to arrest the defendant. The defendant had no right to resist him... In this connection I desire to say to you, gentlemen of the jury, that the deceased, being an officer of the law, had a right to be armed, and for the purpose arresting the defendant [John Bad Elk] he would have the right to show his revolver, He would have had the right to use only so much force as necessary to take his prisoner, and the fact that he was using no more force than was necessary to take his prisoner would not be sufficient justification for the defendant to shoot him and kill him. The defendant would only be justified in killing the deceased when you should find that the circumstances showed that the deceased had so far forgot his duties as an officer and had gone beyond the force necessary to arrest the defendant, and was about to kill him or to inflict great bodily injury upon him, which was not necessary for the purpose of making the arrest"
What appears to be the way that we understand things today is not the way they should be perceived. The instructions to the jury were in error. The case was appealed to the Supreme Court, which overturned the trial courts verdict, and stated as follows: "We think the court clearly erred in charging that the policeman had the right to arrest the plaintiff [John Bad Elk] in error, and to use such force as was necessary to accomplish the arrest, and that the plaintiff had no right to resist it. "At common law, if a party resisted arrest by an officer without a warrant, and who had no right to arrest him, and if in the course of resistance the officer was killed, the offence of the party resisting arrest would be reduced from what would have been murder, if the officer had the right to arrest, to manslaughter.
Clearly, then, the Supreme Court recognized that our right to Liberty, Life and Pursuit of Happiness was protected by the Constitution, and the right to protect them was conveyed to us by virtue of the Ninth Amendment, or, at least, this was the way that it was. Today, however, we have seen the encroachment upon that right to the point that many are arrested at the whim of a law enforcement officer, and Liberty has been reduced to a mere word on our valueless currency.
It is important to understand the difference between a lawful arrest and a legal arrest. We are told that the government can do no wrong. The forces that went to Waco, Texas, on February 28, 1993, had full legal authority to do so, or, so said judge Walter Smith. There was no lawful authority for the warrants that were issued to the BATF. This was clear to students of the Constitution from all across the country, and has been understood by many more since that time. What constitutes a lawful (as opposed to legal) arrest is defined in the Fourth Amendment, to wit: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shah not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
"The right of the people to be secure in their persons", is the protection of that Liberty we speak of. The specificity of describing the "persons," he seized' is another criteria. As was stated in Bad Elk, "at common law", sets the criteria for those lawful arrests. At common law there must be an injured party. This aspect will be discussed in greater detail, later. Suffice it to say that for there to be a "capital, or otherwise infamous crime" there must also be an injured party. Basically, if the "crime" is a misdemeanor or a breach of contract, there can be no justification for arrest. If the "crime" is a felony, then you must consider whether the act resulted in the injury to a party, and whether that party initiated the complaint and subsequent warrant. A "violation" of the rules (statutes) does not meet these criteria, regardless of the wording of the rule. The words do not satisfy, the intent of the Founders, and the gift of the Founders is what we seek to restore. Punishing behavior that is not consistent with what the government believes to be "antisocial" subjects us to a morality established by government, not by the people. For all intents and purposes, if we allow government to establish moral values (rules of behavior) we have allowed government to establish a church state, although by a different set of words. This is not to say that moral rules are wrong, only that the Constitution did not empower the federal government to enact such laws.
Let us consider what has been made clear by the Founders and the Supreme Court. If an attempt is made to arrest you, there are two choices that you have. The first is to resist the arrest if it does not meet the criteria of the Constitution, as outlined above. The second, recourse, is to submit to the arrest. I will add, at this point, that the old adage that discretion is the better part of valor" comes in to play here. If the result of resisting arrest is going to, without question cause the death of the person to be arrested, or the deaths of friends or innocent bystanders in close proximity, then discretion becomes a necessary tool to the evaluation of what to do. On the other hand, we have learned from the experience in Waco, that discretion also plays a part in the actions of those who would usurp our Liberty. For fifty-one days the forces of evil were held at bay by those defenders of Liberty at Mt. Carmel Center. If a similar event were to occur, I think that those defenders would find a ready force assembling in their defense within hours of the initial assault.
We now know that the objective of government is to kill those who would resist their force and refuse to submit to their unlawful assertions of authority. This was made quite clear by the subsequent actions of government on April 19. It would seem, then, that, if resistance: to unlawful arrest could be maintained for even a few hours, and word gotten out, that the type of rally outside that we all wish we had conducted in Waco, would occur wherever that resistance became known. Even if, after initial resistance, arrests were made, the rally outside for the protection of all of our rights would surely come.
What is absolutely necessary for an unlawful arrest to garner support from the Patriot community is that every effort must be made to defend against that unlawful arrest. We might consider the circumstances of April 19, 1775, at Lexington and Concord to understand what is necessary. Had the colonists at Lexington and Concord not been willing to take the risk of opposing the force of the British, then they could not have expected the militias of the other colonies to muster and send their forces to the aid of those at Concord and Boston. Had the men at Concord simply thrown up their hands anti let the British take the guns and powder, then surely the militias would nor have participated in the beginning of our War for Independence. It was Imperative for those involved in the initial confrontation to place themselves in harms way to expect others to risk their lives in defense of the former When you are arrested
If, after due and proper resistance is made to arrest, and arrest becomes the outcome of the event, and you are the object of that arrest, it is desirable to have no identification on you. One of the first questions will be, are you ________?, or, "who are you? Now, we all know what Miranda means. "You have the right to remain silent. Anything that you say may be used against you in a court of law." Well, if this is true, why should you even give your name? REMAIN SILENT, that is your right. If they have a problem with that, point out that they just read you Miranda and you believe them.
I have been arrested twice since going to Waco. The first arrest came when two Casselberry, Florida police officers came under warrant, without same, to my office. This was shortly after I had returned from Waco. They broke in the front door and had pistols aimed at my head. After informing me that I was under arrest, they allowed me to empty my pockets of anything I wished not to go to jail with me. I removed my wallet as well as some other things. I never admitted to being Gary Hunt, nor did I ever sign my name, until it was on the agreement to appear and was a condition of my release on bail. When I arrived at the jail, the remainder of my property was taken, even some of my clothing. An officer inventoried the objects taken and then offered me a copy of the inventory with the request, "sign here." I replied that I would sign nothing. He Offered, "if you want your stuff back when you get out of here, you had better sign." I responded, "You are stealing my property. You want me to sign to honor that theft. You gotta be kidding me."
I was then taken to the booking area and asked to sit. I did. I was then asked my name, to which I responded, "I will answer no questions, nor will I sign anything." They placed me in a holding cell and tried again a few hours later. After about three rounds of the same, I was finally booked without my signing or answering anything. I might add that if you were to sign the "fingerprint card" they would eventually write in the charges against you. By not signing, you never acknowledge the charges. I also made a point of stating that I was not volunteering my fingerprints willingly, I did not resist, nor did I cooperate. Discretion may keep your fingers and/or arm from being broken. Just hang limp, and let them "steal" your fingerprints without resistance. As a result of this "practice" on my part, I was not booked until nearly ten hours after I was arrested. Those that came to bail me out, that first evening, finally left to return the next day. I spent overnight in jail as a result of my actions. But I judged the experience to be well worth it. When I was released, I refused, again, to sign for the return of my property and only signed the appearance notice, "with explicit reservation" (similar to "without prejudice").
I might add, at this point, that, as a result of having been in Waco during the siege, I considered very carefully whether I wanted to be arrested, or to resist. When the officers came in to the office, there was a pistol within inches of my right hand, and a loaded semiautomatic rifle within just two feet of my left hand. The issue, which I knew to be the "failure to appear" warrant, was not worth, nor worthy, of concern to the Patriot community. I had already participated in their court proceedings, even though under duress to do so. If resistance to arrest is offered, then the issue must be clear. That is to say, it should not be an issue that was provoked by your actions, or one that might properly be construed as a crime and of issue to be determined by a jury. If, for example, the issue is unknown to you, then an assumption can rightfully be made that there is no lawful cause for your arrest. If we are the government of this great nation, then surely we can be trusted to know when valid charges are pending against us. It seems rather safe to assume that if you have no knowledge of any crime with which you may be charged, the charges must be as scurrilous as the people who brought them against you in secrecy.
Regarding bail, do not use a bondsman if you are going to argue status. A bondsman is an "officer of the court," just like the attorney. He is given extraordinary authority to arrest you, even in another state. His extension of the court's authority is obvious. And by you participating with any officer of the court you admit, or submit, to jurisdiction.
The arrest just spoken of was the result of a "ticket" and subsequent "failure to appear" which was the cause for the warrant being issued. I had been charged with "driving without a license and no tags (license plates) on my motorcycle back in July, 1992. My appearance was to have been in March and I was in Waco. I had contacted the court to seek a continuance, but they refused to grant it. During my first appearance, and at all subsequent appearances, I always declare that I am there in my own person, that I am there by special appearance and under fear of bodily harm or even death. Although it makes little difference to those usurpers of authority, it is probably very important for your fellow patriots, as well as yourself, that you declare your position in all proceedings in their court.
Some thoughts about court
At the first appearance, or as nearly as possible there after, I read the following to the court and record (this was provided by Don Mitchum, Safford, Arizona), "Comes now the defendant who is sovereign Citizen, also a non-resident alien of the United States. I, Gary Hunt, take exception pursuant to Federal Rules of Civil Procedure, Rule 46, of the following:
"1. This courts venue over the defendant, I am a non-resident alien of the United States and a non-resident of the State of Florida, Therefore, both the State of Florida and the United States are foreign countries and their military tribunals have no venue over this defendant. Whereas, I take exception of same.
"2 The United States has assumed that they have given the defendant a title of nobility (debtor), The United States of America Constitution states that there will be no tides of nobility among the people of the fifty states. Whereas I rake exception of same.
"3. This is a court of martial law proper and is conducting this proceeding as a court of bankruptcy as evidenced by the display within the room used to convene said court of the American flag with a gold fringe or border added to three sides of said flag (See 34 Opinion Attorney General 483-485). Whereas I take exception of same.
"4. My appearance in this court is pursuant to my fear that this court may cause the Sheriffs of this county to inflict bodily harm or even death upon me for failure to appear'. Whereas Z take exception of same. I, Gary Hunt, am an American Citizen, non-government and thus not within the purview or venue jurisdiction of martial law within whose authority this court is conducting this proceeding. I, Gary Hunt, am a non-resident alien with respect to the venue/jurisdiction of the United States which is defined in the statutes as the District of Columbia, it's territories, possessions (i.e. Guam, Puerto Rico, the Virgin Islands, Northern Marianna Islands, American Samoa),
Some might argue that use of the federal rules might submit you to jurisdiction. This point should be debated by those more qualified than I to determine its validity. The point to be made is that you understand that you are not subject to their jurisdiction, that you recognize that the United Slates is bankrupt, and operating it's courts under maritime (bankruptcy, or, as a military tribunal) jurisdiction, that the flag displayed in the court is proof of said jurisdiction, and that you are not there because you want to be, rather under fear of force of arms.
In all subsequent appearances I assured the court that I needed no representation, and that I appeared under fear that the court might direct the Sheriff to inflict upon me bodily harm or even death, were I not to appear. The others statements are of record, this assurance that my relationship with the court has not changed is affirmed by the fear of force (duress).
During the second arrest, which occurred this past December shortly after I returned to Florida, I found that there is an easier way to avoid signing or saying anything. I was first arrested in Orange County, and transferred to Seminole County three days later. In Orange County it took eleven hours to process me because of my refusal to violate Miranda. When I was transferred to Seminole County I had to be booked all over again. I had thought, however, that there might be a better way. I explained to the booking officer that if I were to answer any of his questions, I might jeopardize my legal status and my case. I asked if he would please help me to avoid this jeopardy. If he would, I would tell him if he had a wrong answer, by one means or another. I also explained that signing anything would also create jeopardy to my case. By asking for his help, I found a cooperative officer and was able to be booked in a reasonable period of time.
Back to court - Never let an attorney be "provided" for you. Once you accept the benefit of a court appointed attorney, you have submitted to the jurisdiction of the court. This also extends to any attorney who comes in as an officer of the court on your behalf, even if retained by you. If an attorney, or any other counsel, does not "represent" you, but merely advises you, whether he be a bar attorney, or not, you have not submitted to jurisdiction. It is necessary that only you speak to the court and that any advice from the "counsel" should be directed only to you.
Also, if filing a motion, it is, I believe, in your best interest to not follow nor fight the rules of the court, for to do so might create the appearance of receiving a benefit of the court. The Aschwander doctrine holds that if you receive a benefit of an administrative agency, you have submitted to the jurisdiction thereof. If you file any motions with the court, make sure that a statement is contained somewhere in the document that says, "without submitting to jurisdiction."
Is Habeas Corpus suspended?
On my final appearance (over two years after the initial offense), I followed a different course of action. Richard McDonald"s bulletin board (BBS - (818) 888-9882) had been a source of a lot of good information. I had downloaded a file some time before, and the evening before court I was going through several of the files. One had information that resulted in my preparing the following statement to be presented to the court after the normal refusal of jurisdiction and notice of appearance under fear of injury or death.
First, object to the proceedings. Then, DEMAND Habeas Corpus, not by motion, petition or any other manner described in their rules, but orally. This can be accomplished by stating:
Oral Habeas Corpus
"I object to these proceedings.
"I am the moving party today, and I am the plaintiff and I set forth a demand for Habeas Corpus for the record, I cannot find an injured party to summon for trial and J want an order for the Sheriff to bring the injured party before the court. I need an order from the court to tell the Sheriff to bring forth the injured party.
"If this charge is criminal then the injured party must present himself with a sworn statement of the injury.
"If the nature is civil, then the original contract to which I am alleged to be a party to and have violated must be brought forward."
During the hearing that lasted nearly twenty minutes, I was threatened with contempt at least five times. Every time I tried to DEMAND Habeas Corpus, the judge would threaten me with contempt. After fifteen minutes the judge had already set the date for jury trial, and was still trying to get me to submit to jurisdiction of the court. He said that if I chose to "represent myself that I had to answer some questions to prove my competence. I told him that I was not seeking to represent myself that I stood on my own behalf, but that if he wanted to ask me any questions, he could. If felt like answering I would. Finally, I made one more effort to complete the oration above. Although I had to raise my voice over his threats of contempt, I was finally able to complete the statement, or demand. The judge then attempted to continue on with his agenda, where I interrupted and asked, "Mr. Marblestone, are you suspending Habeas Corpus?" He seemed somewhat taken aback by this question. Within just a couple of seconds, he looked to the prosecutor and asked him to Nolle Prosse (not prosecute) the case. I walked out of court after over two years and over one hundred hours of court and/or jail time, finally relieved of the yoke of" justice".
Now it is always difficult to know exactly why a case is won. I am convinced, however, that on this occasion, although I had filed a motion for dismissal and a judicial notice based upon the true Thirteenth Amendment, that the actions of the judge indicate that he was unable to deal with an oral demand for Habeas Corpus.
Whatever course you choose to take, you are facing an enemy that will do all within his power (so long as he doesn"t flagrantly disregard his own rules) to "win" the case. There is no guarantee of justice, nor can we expect any change in the near future regarding justice. Remember, those in Waco, Texas who defended their Liberty in accordance with the laws of Texas and the decisions of the Supreme Court and who survived are spending up to forty years in prison. Perhaps resistance to unlawful authority is more worthy of consideration than the alternative. We would not have the opportunity to resurrect the Constitution today if the Founders were not willing to put their lives on the line against the might of the British and fear of death.
"The perfection of liberty therefore, in a state of nature, is for every man to be free from any external force, and to perform such actions as in his own mind and conscience he judges to be rightest; which liberty no man can truly possess whose mind is enthralled by irregular and inordinate passions; since it is no great privilege to be free from external violence if the dictates ~ are controlled by a force within, which exerts itself above reason.
For more on habeas corpus, see Habeas Corpus -- what does it mean?