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Excessive Force in the Local News

In another news article regarding Vallejo Police, an officer has been disciplined for attempting to control a detainee by using his boot to step on the man’s head when he was “squirming”, after he had already deployed his baton to subdue the individual. The officer was disciplined by Vallejo PD for this inappropriate use of force.

Excessive Force as a Defense in Resisting Arrest/Assault on an Officer Cases

Excessive Use of Force by a police officer can be a defense to allegations of Resisting Arrest (PC 148(a)(1)), Resisting Arrest by Force (PC 69), or Assault on a Peace Officer (PC 245(c)). This is because police officers must be operating “in lawful performance of their duties” as police officers for these charges to apply.

Under CALCRIM Jury Instruction 2670, the definitions and principles of “Lawful Performance of Duties” and “Excessive Force” are described:

2670   Lawful Performance: Peace Officer

The People have the burden of proving beyond a reasonable doubt that the officer was lawfully performing his duties as a peace officer. If the People have not met this burden, you
must find the defendant not guilty of the crime charged.

A peace officer is not lawfully performing his or her duties if he is unlawfully arresting or detaining someone, or using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention.

A. Unlawful Detention
A peace officer may legally detain someone if [the person consents to the detention or if:

1. Specific facts known or apparent to the officer lead him to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime;
2. A reasonable officer who knew the same facts would have the same suspicion.

Any other detention is unlawful.

In deciding whether the detention was lawful, consider evidence of the officer’s training and experience and all the circumstances known by the officer when he  detained the person.

B. Unlawful Arrest
A peace officer may legally arrest someone either on the basis of an arrest warrant or if he or she has probable cause to make the arrest.
Any other arrest is unlawful.

Probable cause exists when the facts known to the arresting officer at the time of the arrest would persuade someone of reasonable caution that the person to be arrested has committed a crime.

In deciding whether the arrest was lawful, consider evidence of the officer’s training and experience and all the circumstances known by the officer when he arrested the person.

Arrest without warrant for most misdemeanors or infractions
In order for an officer to lawfully arrest someone without a warrant for a misdemeanor or infraction, the officer must have probable cause to believe that the person to be arrested committed a misdemeanor or infraction in the officer’s presence.

Arrest without warrant for felony or misdemeanor not requiring commission in offıcer’s presence

In order for an officer to lawfully arrest someone for a felony or misdemeanor not requiring commission in offıcer’s presence without a warrant, the officer must have probable cause to believe the person to be arrested committed a felony or misdemeanor not requiring commission in offıcer’s presence. However, it is not required that the offense be committed in the officer’s presence.

Entering home without warrant
In order for an officer to enter a home to arrest someone without a warrant and without consent:

1. The officer must have probable cause to believe that the person to be arrested committed a crime and is in the home;
2. Exigent circumstances require the officer to enter the home without a warrant.

The term exigent circumstances describes an emergency situation that requires swift action to prevent (1) imminent danger to life or serious damage to property, or (2) the imminent escape of a suspect or
destruction of evidence.

The officer must tell that person that the officer intends to arrest him or her, why the arrest is being made, and the authority for the arrest. The officer does not have to tell the arrested person these things if the officer
has probable cause to believe that the person is committing or attempting to commit a crime, is fleeing immediately after having committed a crime, or has escaped from custody.The officer must also tell the arrested person the offense for which he or she is being arrested if he or she asks for that information.

Photographing or Recording Peace Officer
Photographing or recording a peace officer while the officer is in a public place or while the person photographing or recording is in a place where he or she has the right to be is not, by itself, a crime nor a basis
for reasonable suspicion to detain nor probable cause to arrest.

C. Use of Force
Special rules control the use of force.

A peace officer may use reasonable force to arrest or detain someone, to prevent escape, to overcome resistance, or in self-defense.

If a person knows, or reasonably should know, that a peace officer is arresting or detaining him or her, the person must not use force or any weapon to resist an officer’s use of reasonable force. However, you may not find the defendant guilty of resisting arrest if the arrest was unlawful, even if the defendant knew or reasonably should have known that the officer was arresting him.

If a peace officer uses unreasonable or excessive force while (arresting or attempting to arrest/ [or] detaining or attempting to detain) a person, that person may lawfully use reasonable force to defend himself or herself.

A person being arrested or detained uses reasonable force when he or she: (1) uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer’s use of unreasonable or excessive force; and (2) uses no more force than a reasonable person in the same

Thus, if the initial detention, or arrest, was unlawful in nature, a person may resist against the illegal actions of the police. And, when police use excessive force to effect a detention or arrest, it thus creates a defense by the party charged with “resisting”, “resisting by force”, or “assault” regarding the officer if the person uses reasonable force to defend themselves to repel the unlawful performance of the actions by the police.

Call Today to Fight Excessive Police Force and Arrests

If you are charged with a case involving use police force and implicated in using force or resistance against the police to defend yourself in Solano County, Napa County, or Yolo County, you need an experienced, resilient lawyer in your corner to defend your rights to the fullest extent of the law.

Call Honeychurch & Giambona for a free consult today to see how our lawyers can fight to assert your rights and achieve the best possible outcome for your situation.

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