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99.3 Resisting Arrest: Defenses And Defense Theories

    99.3.1 Resisting Arrest: Right To Self Defense Against Excessive Force
    99.3.2 Defense Theory That Third Party May Intervene To Prevent Arrest By Officer Using Excessive Force
    99.3.3 Resisting Arrest: Defense Theory That Verbal Statements Are Not Sufficient
    99.3.4 Resisting Arrest: Lack Of Knowledge That Person Arresting Is An Officer And/Or Making An Arrest
    99.3.5 Resisting Arrest: Detention Or Apprehension By Store Personnel -- Unlawfulness Of Arrest Or Detention As Defense Theory
    99.3.6 Resisting Arrest: With Warrant -- Invalidity Of Warrant As Defense Theory
    99.3.7 Resisting Arrest: Flight From Officer -- Defense Theory That Defendant Was Merely A Witness
    99.3.8 Resisting Arrest: Heat Of Passion As Defense Theory
    99.3 9 Resisting Arrest: Unlawfulness Of Warrantless Arrest As Defense Theory
    99.3.10 Use Of Force During Arrest: Police Officer As Defendant
    99.3.11 Resisting Arrest: Additional Defenses And Defense Theories

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RATIONALE: A person has a right to resist and defend against excessive force by a police officer. Hence, when appropriate, the jury should be instructed on the rules applicable to such a defense theory.

POINTS AND AUTHORITIES: The majority of jurisdictions justify an arrestee's use of self-defense when an arrest is being effectuated by the use of excessive force. (See The Right To Resist Excessive Force Used In Accomplishing Lawful Arrest, 77 ALR3d 281; see also U.S. v. Stotts (4th Cir. 1997) 113 F3d 493, 496; State v. Mensch (NC 1977) 239 SE2d 297, 299; Commonwealth v. French (PA 1990) 578 A2d 1292, 1298; LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.7(h); NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 208.81F (c)(3) [Assault On An Officer And Simple Assault-Arrest Situations (All Issues In Dispute)] p. 300 (TRCC, 1999).)

    Hence, a defendant may not be convicted of resisting arrest if the arresting officer used excessive force in violation of the 4th Amendment or deadly force when the suspect did not pose a threat of serious physical harm to the officer or others. (See Tennessee v. Garner (1985) 471 US 1, 11 [105 SCt 1694; 85 LEd2d 1]; see also Fikes v. Cleghorn (9th Cir. 1995) 47 F3d 1011, 1013-1014; Wharton’s Criminal Law (West, 15th ed. 1993) § 126, pp. 172-73 ["...[A] person may resist a lawful arrest if the arresting officer uses unreasonable force"].)

    In the case of excessive force, the jury must be instructed to determine whether, under the totality of the circumstances, the force used by the officers against the defendant was reasonable in light of all the surrounding circumstances from the viewpoint of a reasonable police officer at the scene of the arrest. In the case of deadly force, the jury should additionally be instructed that deadly force is only justified if the officer has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others. (See Fikes, 47 F3d at 1014.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

USE NOTE: There is a linguistic problem with the first two sample instructions in that they are phrased in terms of the jury concluding that excessive force was used. While conceptually this is the way the rule is stated, in terms of the prosecution’s burden, the jury should not have to conclude that excessive force was used but rather, the prosecution must prove beyond a reasonable doubt that excessive was not used. (See FORECITE National™ 253.4.3 [Burden Of Proof].)

    A right to self defense arises if a law enforcement officer uses "excessive force" in carrying out his or her official duties. A defendant is justified in responding to the excessive force with force by a police officer reasonably necessary for self protection.

    In deciding if [___________ (name of police officer)] [the police] [_________] used excessive force in this case, consider that a law enforcement officer is permitted to use the amount of force that appears reasonably necessary to stop or detain a defendant, or to otherwise maintain order and control. This determination is governed by what amount of force an ordinarily careful and intelligent officer would have thought reasonable and necessary under the circumstances.

    If [___________ (name of police officer)] [the police] [_________] used excessive force, the defendant had a right to defend [himself] [herself] so long as the defendant used only  the amount of force reasonably necessary to protect [himself] [herself].

    To defeat the defendant's claim of self defense, the prosecution must prove beyond a reasonable doubt that [____________ (name of officer)] [the police] [____________] did not use excessive force and/or that the defendant's response exceeded the amount of force that was reasonably necessary under the circumstances.

* But see FORECITE National™ 270.3.2 ["If you find..." Language Improperly Shifts Burden To Defendant]; see also FORECITE National™ 253.4.3 [Burden Of Proof].

[See generally U.S. v. Stotts (4th Cir. 1997) 113 F3d 493, 496; State v. Mensch (NC 1977) 239 SE2d 297, 299; LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.7(h); cf. HORN’S FEDERAL JURY INSTRUCTIONS, FOURTH CIRCUIT EDITION 2.49 [Self-Defense As Justification For Assault On Law Enforcement Official] (TRCC 1999).]

    A person who reasonably believes he or she is in imminent danger of harm from excessive force by a [law enforcement officer] [__________] and the person also reasonably believes that submitting to the arrest would not stop the use of excessive force may lawfully use such nondeadly force as reasonable appears necessary in self defense.

    A person who reasonably believes he is in imminent danger of [death] [or] [serious bodily injury] [or] [forcible sexual assault] [or] [kidnapping] from excessive force by a law enforcement officer and the person also reasonably believes that the use of deadly force is necessary to defend against the excessive force may lawfully use such deadly force as reasonably appears necessary in self defense.

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PRACTICE NOTE: Generally, a third party may not lawfully intervene to prevent an illegal arrest. (See Wardlaw v. Pickett (9th Cir. 1993) 1 F3d 1297, 1302.) This rule is based on recognition that arrestee's liberty interest is protected by safeguards which did not exist at common law, including prompt arraignment, reasonable bail, appointment of counsel, exclusionary rule and right to speedy trial. (Ibid.)

    However, if the officer is using excessive force the right to defend another person against attack may apply. (Ibid.; see also FORECITE National™ 99.3.1 [Resisting Arrest: Right To Self Defense Against Excessive Force]; see also FORECITE National™ 253.6 [Defense Of Others].)

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RATIONALE: Without an explanatory instruction the jury may not understand that resisting arrest is not committed by verbal statements alone.

POINTS AND AUTHORITIES: Words alone should not be sufficient to prove resisting arrest. (See District of Columbia v. Little (1950) 339 US 1, 6 [70 SCt 468; 94 LEd 599]; see also In re Nawrocki (MD 1972) 289 A2d 846, 853, n8.)

    It is settled that although the police may properly ask questions at the time of a detention or arrest, the detainee has no obligation to answer and may not be compelled to do so. (Berkemer v. McCarty (1984) 468 US 420, 439 [104 SCt 3138; 82 LEd2d 317]; Kolender v. Lawson (1983) 461 US 352, 360 fn 9 [103 SCt 1855; 75 LEd2d 903]; Davis v. Mississippi (1969) 394 US 721, 727 fn 6 [89 SCt 1394; 22 LEd2d 676].) It is equally settled that one has a First Amendment right to verbally question, criticize and challenge an officer's actions. (See City of Houston v. Hill (1987) 482 US 451, 461-463 [107 SCt 2502; 96 LEd2d 398]; People v. Quiroga (CA 1993) 16 CA4th 961, 966 [20 CR2d 446].)

    Hence, when a citizen verbally opposes or challenges police conduct, there is no resisting arrest because the citizen has not "resisted, delayed, or obstructed" the police. Moreover, even if the statute could be so applied, it would run afoul of the First Amendment. Even fighting words, when uttered to a policeman, are constitutionally protected because it is not contemplated that a peace officer will react violently. (City of Houston v. Hill, 482 US at 462-63 ["the freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state"; see also State v. Snodgrass (AZ 1979) 590 P2d 948, 950-51; State v. Tages (AZ 1969) 457 P2d 289; Long v. Valentino (CA 1989) 216 CA3d 1287, 1295 [265 CR 96]; In re German A. UNPUBLISHED (G010742).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

NOTE: An attempt to intimidate the suspected victim to prevent the victim from talking to the police impedes the investigation and may be the basis for a conviction of impeding an investigation or obstruction of justice. (People v. Green (CA 1997) 51 CA4th 1433 [59 CR2d 913].)

UNPUBLISHED OPINIONS AVAILABLE: Click here. [Opinion Bank # O-188; Opinion Bank # O-109].

    The prosecution is required to prove that the defendant "resisted, delayed or obstructed" by actual conduct, whether active or passive. Verbal statements of the defendant do not constitute actual conduct.

[Source: FORECITE National™.]

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RATIONALE: Without a defense theory instruction the jury may improperly assume that the defendant has the burden of proving lack of knowledge that the person arresting was a law enforcement officer who was making an arrest.

POINTS AND AUTHORITIES: Resisting arrest has been held to require two elements of knowledge. First, the defendant must know that the person he or she resisted was a police officer and, second, the defendant must know that the officer was making an arrest. (See e.g., U.S. v. Lowth (2nd Cir. 1996) 82 F3d 563, 573; Busch v. State (MD 1981) 426 A2d 954, 956-58; People v. Reinhardt (MI 1985) 366 NW2d 245, 246; People v. Julkowski (MI 1983) 335 NW2d 47, 49; Wright v. State (TX 1993) 855 SW2d 110, 112; NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 230.31 fn 1 [Resisting Arrest-Lawfulness Of Arrest] (TRCC, 1999); Wharton’s Criminal Law (West, 15th ed. 1993) § 78, p. 561 ["a defendant is not guilty of resisting an officer if he mistakenly believed that the officer was a private person"].)

    See also FORECITE National™ 105.1.3.4 [Vehicular Flight From Officer: Defense Theory That Defendant Was Unaware Officer Wanted Him/Her To Stop].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

NOTE: It has also been suggested that a third knowledge element is awareness that the officer was acting with "lawful authority." (See e.g., State v. Lossman (WI 1984) 348 NW2d 159, 164; see also WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1766A [Obstructing An Officer: Giving False Information] para. 11 (University of Wisconsin Law School, 2000) [crime of giving false information to an officer requires that "the defendant knew the (officer) was an officer acting in an official capacity and with lawful authority and that the defendant had the purpose to mislead the officer in the performance of his or her duties"].)

    In order to find the defendant guilty of resisting arrest the prosecution must prove beyond a reasonable doubt that the defendant had knowledge that a police officer was attempting to arrest [him] [her].

[Source: FORECITE National™.]

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    99.3.5    Resisting Arrest: Detention Or Apprehension By Store Personnel -- Unlawfulness Of Arrest Or Detention As Defense Theory                 

RATIONALE: When resisting arrest is based on the detention of the defendant by store personnel, the lawfulness of the detention is an element which may be challenged as a defense theory and which may require special instruction so the jury understands that the prosecution must prove that the detention was lawful.

POINTS AND AUTHORITIES: See State v. Jones (WA 1992) 821 P2d 543, 544.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

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    99.3.6    Resisting Arrest: With Warrant -- Invalidity Of Warrant As Defense Theory

PRACTICE NOTE: Normally an arrest or attempted arrest made pursuant to a warrant does not allow a defense to a charge of resisting arrest based on the illegality of the warrant. (See Rodgers v. State (MD 1977) 373 A2d 944, 949-52; see also NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 208.81(B) [Assault Of An Officer And Simple Assault-Arrest Situations (Issues As To Lawfulness Of Arrest And Defendant Force)] pp. 298-99 (TRCC, 1999).) However, there may be a defense theory based on the invalidity of the warrant if it was so defective that its nullity was apparent simply by looking at it. (Rodgers, 373 A2d at 950; see also State v. Ekkelkamp (WA 1985) 711 P2d 1076, 1077-78 [a warrant renders the arrest "lawful" so long as it is facially valid even if improperly issued].)

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    99.3.7    Resisting Arrest: Flight From Officer -- Defense Theory That Defendant Was Merely A Witness

PRACTICE NOTE: The crime of resisting arrest is only applicable where the person fleeing is the one the officer intends to arrest. (See State v. Dossett (MO 1993) 851 SW2d 750, 751-52.) Hence, if a person whom the police are seeking as a witness flees, the crime of resisting arrest is not committed. (See e.g., S.G.K. v. State (FL 1995) 657 So2d 1246, 1248; but see Jones v. State (GA 1993) 430 SE2d 877, 878 [flight from officer may constitute resisting or obstructing officer under separate statute]; People v. Pohl (MI 1994) 523 NW2d 634 [same].)

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PRACTICE NOTE: Malice may be negated if an unlawful arrest constituted adequate provocation to cause the defendant to kill the officer while in the heat of passion. (Wharton’s Criminal Law (West, 15th ed. 1994) § 126, p. 176.)

    See also FORECITE National™ 255.3 [Heat Of Passion/Hot Blood, Provocation].

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    99.3.9    Resisting Arrest: Unlawfulness Of Warrantless Arrest As Defense Theory

PRACTICE NOTE: The common law includes two assumptions regarding unlawful warrantless arrests:

1.    A person being subjected to an unlawful warrantless arrest is justified in using reasonable force to resist the arrest, and if he does so, he has a complete defense to a charge of assault on a law enforcement officer while the officer was discharging a duty of his office.

2.    A person who uses excessive force to resist an unlawful warrantless arrest commits an assault. Such an assault is a simple assault because the officer is not 'discharging a duty of his office' when he makes an illegal warrantless arrest.

(See State v. Mobley (NC 1954) 83 SE2d 100, 106.)

    In other words, because an illegal arrest is the "equivalent of an assault," the defendant’s resistance to an illegal arrest should not constitute the crime of resisting arrest provided the resistance is not unreasonably aggressive or disproportionate. (State v. McCrorey (WA 1993) 851 P2d 1234, 1241; see also State v. Parsons (NJ 1994) 636 A2d 1077, 1082 [relevant statute expressly applies to resisting "lawful arrest"]; State v. Valentine (WA 1997) 935 P2d 1294, 1297-98 [conviction for third degree assault against a police officer requires lawful arrest]; but see UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI § 1226 [Resisting Arrest-Illegality Of Arrest-No Defense] (Oregon State Bar, 1998) [if the defendant knew the person making the arrest was a peace officer the unlawfulness of the arrest is not a defense to the charge of resisting arrest].)

    Accordingly, in the case of an arrest without a warrant, the lawfulness of the arrest may be an issue. (See Beck v. Ohio (1964) 379 US 89, 91 [85 SCt 223; 13 LEd2d 142]; Carter and Thompson v. State (AR 1983) 657 SW2d 213, 215 [right to resist does not extend include the right to be an aggressor]; Monk v. State (MD 1993) 619 A2d 166, 168-70; Robinson, Criminal Law Defenses (West, 1984) § 112(b) pp. 570-71; Wharton’s Criminal Law (West, 15th ed. 1996) § 569, pp. 274-284; FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES 843.01 [Resisting Officer With Violence] (Florida Bar, 2000) p. 263; MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 4:27.1, comment [Resisting Arrest (Warrantless)] (Micpel, 7/97-A).)

    See also FORECITE National™ 91.3.6 [Escape: Defense Theory Of Unlawful Arrest Or Confinement].

Annotation, Modern Status Of Rules As To Right To Forcibly Resist Illegal Arrest, 44 ALR3d 1078.

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RATIONALE: When an officer is charged with a criminal offense based on the alleged use of excessive force, the rules relating to the permissible use of force must be clearly explained in relation to the prosecution's burden to prove beyond a reasonable doubt that the officer used excessive force.

POINTS AND AUTHORITIES: The standard instruction regarding the use of deadly force was stated in Tennessee v. Garner (1985) 471 US 1 [105 SCt 1694; 85 LEd2d 1]. Garner held that deadly force is not permissibly used to make an arrest "unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." (Garner, 471 US at 3.) This rule is based upon the Fourth Amendment precept that "apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." (Garner, 471 US at 7; see also Clark v. Ziedonis (7th Cir. 1975) 513 F2d 79 [civil case discussing privilege of peace officer to use force in making an arrest].) In this regard, Garner may be useful in setting forth the two requirements for the valid use of deadly force; namely, actual belief that deadly force was necessary to prevent escape and posed a significant threat of death or serious physical injury to the defendant or others. (See WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 885 [Privilege To Use Force: Reasonable Accomplishment Of A Lawful Arrest By A Peace Officer: Deadly Force] comment p. 2 (University of Wisconsin Law School, 2000).)

    Additionally, the belief must be objectively reasonable. (See generally FORECITE National™ Chapter 48 [Objective Unreasonableness (Reasonable Person Standard)].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

    An arresting officer may use only such force in making an arrest as the defendant believed was necessary to secure and detain the person arrested, to overcome any resistance, to prevent escape, or to protect himself from bodily harm. The officer may intentionally use force which is intended or likely to cause death or great bodily harm only if he reasonably believed that such force was necessary to prevent the escape of _________________ (name of alleged victim) and believed that _________________ (name of alleged victim) posed a significant threat of death or serious physical injury to the defendant or others.

    The officer's belief may be reasonable even though mistaken. In deciding whether the officer’s beliefs were reasonable, the standard is what an ordinary prudent, and reasonably intelligent officer would have believed in the officer’s position, having the knowledge and training that the officer possessed, and acting under the circumstances that existed at the time of the offense.

[See Tennessee v. Garner (1985) 471 US 1 [105 SCt 1694; 85 LEd2d 1]; see also WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 885 [Privilege To Use Force: Reasonable Accomplishment Of A Lawful Arrest By A Peace Officer: Deadly Force] (University of Wisconsin Law School, 2000).]

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PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)