Assertion Of Exemption
Use of force to retain exempt property
Where an officer attempts to levy on exempt property after being informed of the fact, the officer is a trespasser, and the owner may employ as much force as is necessary to prevent the levy but may not use more force than is necessary.[FN1] A debtor who so resists an officer is not guilty of the offense of resisting an officer in the service of process.
[FN2] At the same time, though, where an officer's possession of the property is not wrongful, and the question of whether such property is exempt must be passed on by a court of law, the debtor cannot, on a mere claim of exemption, unilaterally determine the issue and repossess the property.[FN3]
[FN1] State v. Johnson, 12 Ala. 840, 1848 WL 379 (1848).
[FN2] People v. Clements, 68 Mich. 655, 36 N.W. 792 (1888).
[FN3] Leach v. Stone, 264 S.W. 620 (Tex. Civ. App. Fort Worth 1924).