Radley Balko, senior editor at Reason, has an update on Dymond Milburn, the 12-year-old girl who was grabbed out of her front yard by three undercover police who accused her of being a prostitute and then beaten so badly she had to go to the hospital to get her head injuries treated.
In the Houston Press the attorney for the officers Milburn is suing gave a statement:
"The father basically attacked police officers as they were trying to take the daughter into custody after she ran off."
"The city has investigated the matter and found that the conduct of the police officers was appropriate under the circumstances. It's unfortunate that sometimes police officers have to use force against people who are using force against them. And the evidence will show that both these folks [meaning 12-year-old Dymond and her father] violated the law and forcefully resisted arrest."
Says Balko: "As far as I can tell, Texas does appear to allow for a citizen to resist an unlawful arrest if the arrest meets certain conditions:"
Texas Penal Code Chapter 9, Subchapter C, Section 9.31, Subsection C:
(c) The use of force to resist an arrest or search is justified: (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.
Even setting aside the severe beating Milburn's lawsuit says she received at the hands of the police (which is presumably backed by records from the hospital she was admitted to later that night), you're left with several plain-clothes police officers jumping out of an unmarked van, calling a 12-year-old girl a prostitute, then attempting to snatch her from her own front yard. I would think that those actions alone would satisfy the "greater force than necessary" portion of the statute.