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Civilian self-defense vs. police excessive force: It’s not that simple

Resisting officers is becoming more prevalent and socially acceptable by certain groups

Does a person being detained or arrested by a police officer have the right to self-defense if the person feels the officer is using excessive force? The answer to this question as written is obviously “no,” but with the current climate of resisting officers becoming more prevalent and socially acceptable by certain groups the question needs deeper exploration.

The follow-up question that is not as simple is: “Does a person have the right to self-defense if the officer uses excessive force?” Notice the subtle difference in the two questions: The first includes the subject’s subjective belief while the second is more generic and definitely needs clarification if asked.

First, it is important to understand that every person has the ancient and esteemed right to self-defense in general. But even this does not fully answer the question.

The Model Penal Code, developed in 1962, eliminated the right to resist an unlawful arrest on two grounds. 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. By 2012, only 14 states allowed a citizen to resist an unlawful arrest. These states are Alabama, Georgia, Louisiana, Maryland, Michigan, Mississippi, New Mexico, New York, North Carolina, Pennsylvania, South Carolina, Virginia, West Virginia and Wyoming.

In California, there are several pertinent penal code sections that shed some light on the not-so-easy topic that some want a simple yes or no answer for.

The first section is an unknown section to those it applies to, California Penal Code Section 834a. This section clearly places a statutory duty and obligation upon a person to not physically resist an officer’s arrest.

Note that the section does not specify lawful arrest as a condition but only arrest. I believe this is due to the fact that the lawfulness of an arrest is not to be argued in the street but in a court of law. If the subject feels like the arrest is unlawful, there are other remedies that the subject can seek. In a civilized society, resorting to force or violence to argue the validity of an arrest - during the arrest - is not acceptable.

The next section is directly related to the first. California Penal Code Section 148(a)(1) is the punitive section that covers the situation when a subject resists an officer in the discharge or attempt to discharge any duty of his or her office, including trying to arrest a subject. From these two sections, it is clear that there is no right to physically resist or assault an officer during an arrest.

What if the officer is using excessive force?

So back to the question: What if the officer is using excessive force? Some experts will point to other statutory laws to support their view that a person can resist if they feel the force is excessive. They look at California Penal Code Sections 692 and 693.

While these sections are self-defense protections for citizens primarily related to situations outside of “police brutality” claims, some experts will claim the public offense (crime) is related to an assault/battery under color authority type of crime. Note that in section 692, the resistance must be in response to the actual commission of the public offense.

An officer’s force response in the grand majority of arrests falls far from this standard and the published statistics bear that out as well. It is a rare circumstance when this assault/battery under color of authority actually occurs and an officer is charged, not because of some great law enforcement driven conspiracy but because it rarely happens.

Section 693 requires that even if the officer were committing a public offense (crime), only that “self-defense” force that is sufficient to prevent the offense may be used. In other words, the subject may only use force to simply stop the assault/battery under color of authority and never any more than that.

Quite honestly, physically resisting an officer that a subject “feels” is using excessive force is a dangerous game of chance in most cases. If the force is found to be reasonable (as it is in the majority of cases) but the subject continued or increased his resistance because he believed the force was excessive, that subject will not prevail in his claim of self-defense and most likely exposed himself to more injury.

In order for a claim of self-defense to be valid, a finding of excessive force must be made by the trier of fact first. That is the jury (jury trial) or judge (bench trial). The excessive force must be to a degree that the trier of fact would believe it is excessive, not just the subjective belief of the person in the field resisting the officer at that moment. Only after a finding has been made that the force was excessive can the “self-defense” actions of the subject be excused as not being a criminal act. In other words, the physical resistance can be “forgiven” as self-defense only if the force is found to be excessive after the fact and not the other way around.

Reasonableness is viewed from officer’s perspective

Another way to examine this is to understand that the evaluation of the reasonableness of an officer’s force response must be made from the perspective of the officer and the totality of the facts and circumstances known to the officer at the time. It is not made from the perspective of the subject. It would be impossible for the subject to fully understand the officer’s perspective and therefore impossible to determine if the force is excessive.

I do not believe the majority of society is willing to accept the idea of a subject with a mere singular and subjective belief (and honestly a self-serving and in most cases an uninformed belief) that somehow an officer’s force response is excessive and therefore the subject has the right to defend him/herself with force. This thinking is clearly a “putting the horse before the cart” type of rational. If society were to accept this thought, every person being arrested in the future could freely physically resist with impunity from criminal culpability on charges of battery on an officer by simply stating, “I felt the force was excessive.”

Ed Flosi is a retired police sergeant from San Jose, California. Ed has a unique combination of real-world experience and academic background. He has worked several assignments including field training program, training unit, narcotics, special operations - K9 handler, research and development, and custody facility supervisor. He has qualified as an expert witness in state and federal courts in police practices/force options and is the president of Justitia Consulting and the principal instructor for PROELIA Defense and Arrest Tactics. He has a Master of Science degree from California State University Long Beach. Ed is a Certified Force Analyst through the Force Science Research Center.

Contact Ed Flosi.