Excessive force is a concept that is particularly interesting to me because I utilize it in criminal defense as a defense to certain crimes for which my client is charged.  For example, California Penal Code 148(a)(1) resisting arrest and battery on a police officer (CALCRIM 945).

Some of these other charges that the police drum up once they rough somebody up and the person either fights back or doesn't fight back, the police are just putting a crime in there to justify arresting them, putting them in custody, and trying to counter any civil claim the person might have against the police.

Therefore, the CALCRIM 2656 jury instruction that would be given pertains to stating that you're being charged with resisting arrest.  The officer must be performing their duties at the time.  So, they can't just attack somebody or use unreasonable force and then claim that they're resisting arrest.

So, the jury instruction, which is the law that applies at a jury trial, is that a police officer is not permitted to use unreasonable or excessive force in making or attempting to make an otherwise lawful arrest, or in detaining or attempting to detain a person for questioning.

Understanding your rights in the face of excessive force can be empowering. If an officer uses unreasonable or excessive force in making or attempting to arrest, detain, or try to detain a person for questioning, the person being arrested or detained has the right to use reasonable force to protect themselves lawfully. This knowledge empowers individuals to defend themselves against excessive force.

Thus, if you find that the officer used unreasonable or excessive force in making or attempting to arrest in defendant and if the defendant used only reasonable force to protect themselves, the defendant is not guilty of whatever crimes they're being charged with.

So, this is telling you that the police can't attack people and rough them up, and then, when the person tries to defend themselves from being attacked, the police are going to charge them with a crime related to that.

It's often difficult to prove these cases; however, with the increased availability of new video evidence, it's now possible to argue that the police used unreasonable force. Your attorney can help you gather and effectively present this evidence. You could also use witnesses who saw what happened if you weren't doing anything, and the police just came up and attacked you and threw you down, and all you were doing was defending yourself.

Right to Self-Defense or Defense of Others

Another CALCRIM 3470 jury instruction given with these cases, when you're trying to defend them, when the police have acted unreasonably, is self-defense.

Somebody attacks you, even a police officer. You can argue that you're simply trying to defend yourself. Therefore, you shouldn't be able to be charged with any particular crimes. Otherwise, that would be unreasonable and unlawful. Reasonable force in self-defense may include actions such as pushing the attacker away or using non-lethal force to protect oneself.

If you find yourself being charged with a crime, and you believe you did nothing wrong, remember that the best course of action is to seek legal representation.  An attorney can thoroughly evaluate all the facts and circumstances and devise the best strategy to defend you in your criminal case. Your active involvement in your defense is crucial, and your attorney will provide you with the support and reassurance you need.

Primary Factors in Excessive Force Cases

All of this, though, is going to center on a couple of big things:

• Do they have the evidence to prove that you somehow attacked a police officer?
• Do you have the evidence to show that you didn't do anything unlawful? And then, of course, the question will be reasonableness.

Did you act reasonably under the circumstances?  And did the police act reasonably under the circumstances?  Sometimes, there is evidence on both sides, and these cases require a trial.  Other times, it's pretty clear that one side acted unreasonably, and the side that acted unreasonably is the one that's going to lose the case.

So, pick up the phone. Make the call. We'll discuss the entire situation and determine the best approach for you to move forward in your criminal case, ensuring you achieve the best possible result. Hedding Law Firm is based in Los Angeles County and offers a complimentary case review by phone or through our contact form.