CALCRIM No. 2672. Lawful Performance: Resisting Unlawful Arrest With Force

Judicial Council of California Criminal Jury Instructions (2022 edition)

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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)).
[A peace officer may use reasonable non-deadly force to arrest or detain
someone, to prevent escape, to overcome resistance, or in self-defense.]
[A peace officer may use deadly force if (he/she):
1. Reasonably believed, based on the totality of the circumstances,
that the force was necessary to defend against an imminent threat
of death or serious bodily injury to the officer or another person;
OR
2. Reasonably believed, based on the totality of the circumstances,
that:
a. <insert name of fleeing felon> was fleeing;
b. The force was necessary to arrest or detain
<insert name of fleeing felon> for the crime of
<insert name of felony>;
c. The commission of the crime of <insert name of
felony> created a risk of or resulted in death or serious bodily
injury to another person;
AND
d. <insert name of fleeing felon> would cause death or serious
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bodily injury to another person unless immediately arrested or
detained.]
[Deadly force is force that creates a substantial risk of causing death or
serious bodily injury. It includes, but is not limited to, the discharge of a
firearm. It does not require that the encounter result in the death of the
person against whom the force was used.]
[A serious bodily injury means a serious impairment of physical
condition. Such an injury may include[, but is not limited to]: (loss of
consciousness/ concussion/ bone fracture/ protracted loss or impairment
of function of any bodily member or organ/ a wound requiring extensive
suturing/ [and] serious disfigurement).]
[A threat of death or serious bodily injury is imminent when, based on
the totality of the circumstances, a reasonable officer in the same
situation would believe that a person has the present ability, opportunity,
and apparent intent to immediately cause death or serious bodily injury
to the peace officer or to another person. An imminent harm is not
merely a fear of future harm, no matter how great the fear and no
matter how great the likelihood of the harm, but is one that, from
appearances, must be instantly confronted and addressed.]
Totality of the circumstances means all facts known to the peace officer at
the time, including the conduct of the defendant and
<insert name of offıcer> leading up to the use of deadly force.
[In considering the totality of the circumstances, you may consider
whether:
[• Prior to the use of force, the officer (identified/ [or] attempted to
identify) himself or herself as a peace officer and (warned/ [or]
attempted to warn) that deadly force may be used(;/.)]
[• Prior to the use of force, the officer had objectively reasonable
grounds to believe the defendant was aware that the officer was a
peace officer and that deadly force may be used(;/.)]
[• The officer was able, under the circumstances, [[to [identify] [or]
[attempt to identify]] himself or herself as a peace officer] [and]
[to [warn] [or] [attempt to warn] that deadly force may be used].]
[A peace officer who makes or attempts to make an arrest need not
retreat or stop because the person being arrested is resisting or
threatening to resist. A peace officer does not lose (his/her) right to self-
defense by using objectively reasonable force to arrest or to prevent
escape or to overcome resistance.]
The People have the burden of proving beyond a reasonable doubt that
the officer was lawfully performing (his/her) duties. If the People have
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not met this burden, you must find the defendant not guilty [of
<insert crimes>].
New January 2006; Revised March 2022
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).
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