Justification: The Right to Resist Restraint
“Escape” is from lawful confinement only; if the confinement itself was illegal, then no escape. MCM, pt. IV, ¶ 19c(1)(e). Therefore, in United States v. Gray, 20 C.M.R. 331 (C.M.A. 1956), the Court held that there is no crime to escape from confinement where defendant’s incarceration was contrary to orders of a superior commander.
Illegal apprehension or arrest
An individual is not guilty of having resisted apprehension (UCMJ art. 95) if that apprehension was illegal. In United States v. Clark, 37 C.M.R. 621 (A.B.R. 1967), a defendant who was physically detained by private citizen for satisfaction of a debt may, under the standards of self-defense, forcefully resist and seek to escape. In United States v. Rozier, 1 M.J. 469 (C.M.A. 1976), the Court held that by forcibly detaining the defendant immediately following his illegal apprehension, NCOs involved acted beyond the scope of their offices. Conversely, in United States v. Lewis, 7 M.J. 348 (C.M.A. 1979), the Court held that the defendant cannot assert illegality of apprehension as defense to an assault charge when the apprehending official acted within the scope of his office. However, the defendant may resist apprehension if he has no “reason to believe” the person apprehending him is empowered to do so. See United States v. Noble, 2 M.J. 672 (A.F.C.M.R. 1976). See also United States v. Braloski, 50 C.M.R. 310 (A.C.M.R. 1975).