In a ruling rejecting Addam Swapp's appeal, a federal judge has fired a judicial broadside at a widely asserted "common-law" right to forcibly resist arrest.
Swapp, 36, is serving a 20-year prison sentence for his role in the Jan. 16, 1988, bombing of the Kamas LDS Stake Center and the ensuing standoff at his family's Summit County ranch.The 13-day siege ended in a shootout that killed Utah Corrections Lt. Fred House. Swapp, brother-in-law John Timothy Singer and mother-in-law Vicki Singer were all convicted and sent to federal prisons for their roles in the incident.
Swapp appealed his conviction on grounds the federal government lacked jurisdiction, the jury was improperly instructed and his lawyer "botched the case."
Central to his argument was the claim that since federal agents had no right to be involved in what he contended was a strictly local matter, their attempts to arrest members of the Singer-Swapp clan at their Marion compound were illegal. And if the agents were acting outside the law, he argued, the family had a right to defend itself with force.
Though that legal argument dates back to a turn-of-the-century Supreme Court case, it has recently emerged as a key element in a number of high-profile confrontations between citizens and federal law agencies, including Ruby Ridge, Montana Freemen and Waco.
U.S. District Senior Judge Bruce S. Jenkins tackled the issue head-on in the Swapp appeal in response to the direct question, "Did Swapp have a right to resist federal agents?"
Swapp and others have insisted they did have that right under the Supreme Court's ruling in 1900 in the John Bad Elk case. In that incident, Bad Elk shot at and killed one of three officers who were sent to arrest him for a misdemeanor violation on the Pine Ridge Indian Reservation. Bad Elk was found guilty and sentenced to hang.
However, the Supreme Court reversed the conviction, saying the jury should have been instructed that Bad Elk "had the right to use such force as was absolutely necessary to resist an attempted illegal arrest."
Jenkins acknowledged that the much-criticized Bad Elk ruling has never been overruled, but he said it has been greatly diminished. Twenty-two states have abolished the common-law right to resist and others, including Utah, don't recognize that right in law. Jenkins noted that no jurisdiction recognizes the right to resist an unlawful arrest with deadly force.
According to Jenkins, the evolution of the Bad Elk ruling suggests "the existence of a common-law right to forcibly resist arrest by a peace officer is no longer tenable."
Society and the criminal justice system have changed dramatically over the past 100 years, he said, citing the right to an immediate arraignment, bail, legal counsel and a speedy trial.
"In the event a person is arrested unlawfully, these safeguards ensure that the person's liberty will be restored without undue delay. These safeguards have greatly diminished, if not supplanted, any historical need for self-help," Jenkins wrote.
"Simply put, society's interests are not furthered by permitting the debate about the lawfulness of police conduct to be argued violently in the streets."
Jenkins said endorsing a right to forcibly resist arrest would encourage resistance and endanger the public and the arresting officer.
"Otherwise peaceful encounters would escalate into full-scale donnybrooks, pitting citizen against police in an armed struggle," Jenkins said.
Quoting Judge Learned Hand, he said, " `The idea that you may resist arrest . . . because you are in debate about whether it is lawful or not . . . is not a blow for liberty but, on the contrary, a blow for attempted anarchy.' "
Even if Bad Elk were intact, Swapp could not use it in his case because the officers at the Marion siege were executing proper arrest and search warrants issued by a federal magistrate, Jenkins added.
The federal intervention in the case was based on the government's contention that the stake center bombing affected the collection of church tithing, Boy Scout funds and other interstate activities. Swapp's attorneys, Michael L. Humiston and R. Steven Chambers, insisted the interstate involvement was too minimal to allow for federal involvement.
At a court hearing in January, they noted that those same kinds of activities - collection of tithing and Boy Scout funds - occur daily in private homes. Applying the prosecutor's line of reasoning would mean that federal agencies could intervene in almost every local crime, they said.
But Jenkins said prosecutors presented "substantial evidence" of the Kamas Stake Center's connection to interstate commerce, including the collection of more than $1 million that was distributed to LDS facilities "all over the world."
Jenkins also rejected Swapp's claims of trial error, improper jury instructions and ineffective counsel.