Criminal Law

2672. Lawful Performance: Resisting Unlawful Arrest With Force

The defendant is not guilty of the crime of (battery against a peace officer[,]/ [or] assault against a peace officer[,]/ [or] assault with (force likely to produce great bodily injury/a deadly weapon/a firearm/a semiautomatic firearm/a machine gun/an assault weapon) against a peace officer[,]/ [or] <insert other crime charged, e.g., resisting arrest>) if the officer was not lawfully performing (his/her) duties because (he/she) was unlawfully arresting someone.

However, even if the arrest was unlawful, as long as the officer used only reasonable force to accomplish the arrest, the defendant may be guilty of the lesser crime of (battery[,]/ [or] assault[,]/ [or] assault with (force likely to produce great bodily injury/a deadly weapon/a firearm/a semiautomatic firearm/a machine gun/an assault weapon)).

On the other hand, if the officer used unreasonable or excessive force, and the defendant used only reasonable force in (self-defense/ [or] defense of another), then the defendant is not guilty of the lesser crime[s] of (battery[,]/ [or] assault[,]/ [or] assault with (force likely to produce great bodily injury/a deadly weapon/a firearm/a semiautomatic firearm/a machine gun/an assault weapon)).

The People have the burden of proving beyond a reasonable doubt that the officer was lawfully performing (his/her) duties. If the People have not met this burden, you must find the defendant not guilty [of <insert crimes>].

Bench Notes

Instructional Duty

The court may give this instruction on request.

Authority

No Right to Forcibly Resist Arrest. Pen. Code, 834a.

Applies to Arrest, Not Detention. People v. Coffey (1967) 67 Cal.2d 204, 221 [60 Cal.Rptr. 457, 430 P.2d 15]; People v. Jones (1970) 8 Cal.App.3d 710, 717 [87 Cal.Rptr. 625].

Forcible Resistance to Unlawful Arrest Is Battery or Assault on Nonofficer. People v. Curtis (1969) 70 Cal.2d 347, 355-356 [74 Cal.Rptr. 713, 450 P.2d 33]; People v. White (1980) 101 Cal.App.3d 161, 166 [161 Cal.Rptr. 541].

Use of Reasonable Force in Response to Excessive Force Is Complete Defense. People v. White (1980) 101 Cal.App.3d 161, 168 [161 Cal.Rptr. 541].

May Not Be Convicted of Resisting Unlawful Arrest. People v. White (1980) 101 Cal.App.3d 161, 166 [161 Cal.Rptr. 541]; People v. Moreno (1973) 32 Cal.App.3d Supp. 1, 10 [108 Cal.Rptr. 338].

Secondary Sources

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, 73.11[2][b], 73.15[2] (Matthew Bender).

(New January 2006)