Glenn v. State

A trial court found that police lacked probable cause to arrest Christopher Glenn for loitering near an elementary school, making his arrest unlawful. But after officers handcuffed him and tried to put him in a patrol car, Glenn resisted and kicked the car doors, damaging them. The trial court ruled the arrest was unlawful but still revoked Glenn's probation, finding he committed a new felony of interference with government property because too much time had passed for his resistance to count as defending against the unlawful arrest. The Court of Appeals of Georgia agreed. The Supreme Court of Georgia disagreed. It traced the common-law right to resist an unlawful arrest back to English law adopted by Georgia in 1776 and held that this right lets a person use proportionate force, even against property like a patrol car, to escape an unlawful detention, and that the mere passage of time after an unlawful arrest does not erase that right. Because the trial court never asked whether Glenn's force was proportionate, the court sent the case back for that missing determination.

Georgia's common-law right to resist an unlawful arrest, inherited from English common law adopted in 1776, includes the right to use proportionate force against government property to escape an unlawful detention, and that right does not disappear simply because some time passed after the unlawful arrest before the resistance occurred.

The ruling clarifies that Georgians who are unlawfully arrested may use proportionate force, including against police vehicles or equipment, without automatically facing separate property-damage charges, guiding how trial courts, prosecutors, and defense lawyers handle probation revocations and criminal charges arising from resistance to arrests later found unlawful.

Reversed and remanded with direction

1. The court explained that Georgia adopted the common law of England as it existed in 1776 as its own law (O.C.G.A. § 1-1-10), and that this common law included a right to physically resist an unlawful arrest or escape an unlawful detention using no more force than necessary.
2. Reviewing historical common-law sources, including Blackstone and the 1709 English case The Queen v. Tooley, the court found that the right to resist an unlawful arrest traditionally covered both resisting an officer and escaping continued unlawful confinement, and found no established distinction between using force against an officer's person versus against property like government vehicles.
3. The court then checked whether Georgia's constitution or statutes had narrowed or eliminated this common-law right, and concluded that neither the Georgia Constitution's search-and-seizure clause nor statutes on obstruction, escape, or false imprisonment expressly or clearly displaced it, so the common-law right remains part of Georgia law.
4. Applying this rule, the court noted the State never challenged the trial court's finding that Glenn's warrantless arrest for loitering and prowling was unlawful, so Glenn retained the right to resist the resulting unlawful detention with proportionate force even while handcuffed and inside the patrol car.
5. The court held that the passage of time between the unlawful arrest and Glenn's resistance did not itself defeat his right to resist, meaning the trial court was wrong to cut off its analysis based on timing alone rather than asking whether Glenn's kicking of the car door was a proportionate response to the ongoing unlawful detention.

• probation revocation
• unlawful arrest
• resisting arrest
• interference with government property
• common law rights