The Supreme Court reversed his conviction, noting that a person had the right to resist an unlawful arrest, and in the case of a death, murder may be reduced to manslaughter.

This case has been widely cited on the internet, but is no longer considered good law in a growing number of jurisdictions.

The English common law has long recognized the right of an individual to resist with reasonable force an attempt of a police officer to make an unlawful arrest.

[1] This offered a complete defense if nonlethal force was used,[2] and would reduce a murder charge to manslaughter if a death ensued.

[9] When the United States separated from England, the common law was adopted by the new American courts and the right to resist unlawful arrest was clearly recognized.

[13] Gleason then ordered several other tribal police officers to arrest Bad Elk and to take him to the Pine Ridge Agency, about 25 miles away.

[16] In April 1899 at Sioux Falls, Bad Elk was tried in the United States Circuit Court for the District of South Dakota for murder.

[21] First he noted that the prosecution did not show and the court could not find a legal basis for the arrest, that at most the firing of the pistol was a misdemeanor if it were a crime at all.

[23] The court noted that at common law, an individual had a right to use reasonable force to resist an unlawful arrest.

So an officer, at common law, was not authorized to make an arrest without a warrant, for a mere misdemeanor not committed in his presence.

[31] Warner's explanations and reasoning appear to have been "accepted without question by subsequent courts..."[32] In 1969, during the height of the Civil Rights Movement, Paul Chevigny of the New York branch of the American Civil Liberties Union (ACLU) responded that an unlawful arrest was a trespass against the person and was not consistent with Warner's explanations.

[37] First, there were better alternative means of resolving the issue; second, resistance would likely result in greater injury to the citizen without preventing the arrest.