Monday, December 21, 2015

Resisting Arrest or Resisting Excessive Force?

There are many cases in which people have a right to resist when unlawfully excessive force is used against them. For example, nobody's expected to just sit there and passively allow themselves to be beaten to death by police or subjected to a use of force that would likely cause, or be expected to cause, great bodily injury. The right to resist such force is about protecting one's Due Process right to life.

There are countless examples where courts held that police crossed the line. But even in cases where an arrested person becomes a victim of excessive force by police, we often hear people say things like, "Well, if you don't resist, you won't get hurt." Certainly, if one resists a lawful use of force during an arrest--i.e., the amount of force necessary to effect the arrest--and gets hurt resisting that force, the comment is valid. But comments like that fail to recognize or address resistance that begins because a person being arrested is already getting hurt.

It's not necessarily true that one would suffer more harm by resisting once police started using excessive force. It's easy to imagine a scenario where someone suffers more harm by not resisting. For example, running from the police is a form of "resisting arrest." If the police start unlawfully beating you during a stop for jaywalking, you might want to run; because there's 100% certainty that you'll get hurt if you don't "resist" by running, and attempting to flee is the only way to reduce that certainty.  In a case like that, if you escape, you reduce your harm.

Unfortunately, the way an excessive force story is usually spun by the media and police is that an arrestee began resisting arrest and that it therefore became necessary for police to escalate the level of force. But what we are often seeing in the videos that surface is not arrestees resisting arrest but, rather, arrestees resisting against an excessive use of force, or rather, resisting (as a natural response to) the infliction of pain resulting from that excessive force.  It's a natural survival instinct to react in a way to try to stop the infliction of certain types of pain.

Resisting the infliction of any type of pain that is so great that it reasonably causes someone to resist it or even fight back against those inflicting it should never be grounds for a charge of "resisting arrest."  

Consider when the people in the World Trade Center chose to jump instead of waiting it out the heat. They couldn't bear the pain of the heat, so they chose certain death instead. Similarly, when police start to inflict pain against someone during the arrest process, it can become unbearable. Even if the arrest is lawful, trying to stop the infliction of unbearable pain during that arrest should not be equated with an attempt to resist the arrest: it's simply a reasonable attempt to stop the unbearable pain!

In what follows below, Nolo Press, a reputable publisher of legal self-help books, has some interesting info about the issue of resisting excessive force. I think the laws need to be modified to allow more examples of resisting excessive force.  
It’s rare that someone being placed under arrest has the right to forcefully resist. But in most states, if the arresting officer uses excessive force that could cause “great bodily harm,” the arrestee has the right to defend him or herself. That’s because most states hold that an officer’s use of excessive force amounts to assault or battery, which a victim has a right to defend against.  
Excessive Force
An officer’s use of force is “excessive” if it is likely to result in unjustifiable great bodily harm (serious injury). Most states consider whether a “reasonable person” under the circumstances would have believed that the officer’s use of force was likely to cause great physical harm (including death). If the answer is “yes”—if a reasonable person would have felt it necessary to resist in self-defense, and if that person used a reasonable degree of force when resisting, then the resistance is typically justified. But this is a very high standard to meet, such that courts hardly ever find that an arrestee’s forceful resistance was defensible.  
How Much Force?
On the rare occasion that a court finds that an arrestee was entitled to resist excessive force, the determination shifts to whether the amount of force he or she used was appropriate. Although the precise rules vary by state, in general, the amount of force used to resist arrest must be proportional to the amount of excess force used by the arresting officer.  
Exceptions to a Narrow Rule
The circumstances under which a person is justified in resisting excessively forceful arrest are rare, even rarer due to some important exceptions. States created these exceptions to discourage people from fighting with police. These exceptions include:
  • Abatement. If the officer stops using excessive force, then the arrestee must stop resisting,  
  • Resistance that prolongs excessive force. If the person being arrested has reason to believe that, if he stops resisting, the officer will stop using excessive force, then he must stop resisting. 
  • Resistance that causes excessive force. If the person being arrested did something to cause the officer to use excessive force in the first place, then she isnt justified in resisting the arrest. 
To illustrate how tricky the resistance issue can be, suppose that an officer pulls Jesse over for reckless driving. The officer gets out of his patrol car and orders Jesse to exit the vehicle and put his hands in the air. Jesse complies. The officer then tackles Jesse to the ground and repeatedly slams his head into the pavement. Under these circumstances, it would probably be reasonable for Jesse to resist the arrest—in some states, he may even be justified in using deadly force because of the threat to his life. [Emphasis added] 
But if Jesse, rather than following the officer’s instructions, had charged at him, the analysis would be different. In that instance, he arguably provoked the officer’s violent response, in which case he wasn’t justified in resisting the unreasonably forceful arrest—he “caused” the officer’s use of force. However, if the officer had subdued Jesse but nevertheless continued to strike his head in the pavement, then Jesse may have been within his rights to resist.