WHEN IS IT LEGAL TO USE FORCE AGAINST A POLICE OFFICER
The short answer is practically never.
Historically, a suspect had the right to resist an unlawful arrest by a police officer so long as the force applied was proportional to the threat presented. See State v, Rousseau, 40 Wn.2d 92, 94, 241 P.2d 447, 449 (1952). The theory behind this rule was explained – in later cases – as resulting from a time when “long imprisonment, often without the opportunity of bail, physical torture and other great dangers were to be apprehended from arrest, whether legal or illegal.” State v. Valentine, 132 Wn.2d 1, 14, 935 P.2d 1294 (1997). In those days, prisoners who lacked financial resources had sub-standard accommodations, food and medical care. In addition, “every incident of prison life from admission to discharge was made the occasion for levying fees against the prisoners. There were charges for the arrest, for the privilege of detention in this or that prison….”
But by 1985, apparently all the aforementioned had changed, and this belief was expressed in State v. Holeman, 103 Wn.2d 426, 430, 693 P.2d 89, 92 (1985). In that decision – the basis for the Court’s modern understanding of the law – the Court wrote:
The arrestee’s right to freedom from arrest without excessive force that falls short of causing serious injury or death can be protected and vindicated through legal processes, whereas loss of life or serious physical injury cannot be repaired in the courtroom. However, in the vast majority of cases, as illustrated by the one at bar, resistance and intervention make matters worse, not better. They create violence where none would have otherwise existed or encourage further violence, resulting in a situation of arrest by combat. Police today are sometimes required to use lethal weapons for self-protection. If there is resistance on behalf of the person lawfully arrested and others go to his aid, the situation can degenerate to the point that what should have been a simple lawful arrest leads to serious injury or death to the arrestee, the police or innocent bystanders. Orderly and safe law enforcement demands that an arrestee not resist a lawful arrest and a bystander not intervene on his behalf unless the arrestee is actually about to be seriously injured or killed.
Popular wisdom among defense attorneys today is that a defendant thus cannot raise self-defense against a police officer, regardless of whether they were unlawfully arrested or whether they were assaulted by a police officer in the process…. unless they first actually die or are severely maimed by the police officer’s use of excessive force. In fact, the pattern jury instruction reads
A person may use force to resist an arrest by someone known by the person to be a police officer only if the person being arrested is in actual and imminent danger of serious injury from an officer’s use of excessive force.
However, acceptance of this instruction should be challenged. State v. Smits, 58 Wn.App. 333, 341, 792 P.2d 565, 569 (1990), suggested that, if an arrest is unlawful, the defendant may be justified in exercising self-defense against a police officer if the defendant reasonably believed they were in danger of serious bodily injury from a police officer’s use of force.
It’s an uphill battle to be sure, but given the public’s changing attitude toward law-enforcement, it’s an argument worth making for some clients charged with Assault 3, resisting arrest, and other crimes.