"At some time a free society must defend not only the headline case but also the simpleright to stand peacefully in a public place, unless there exists a substantial interest of the state to forbid such conduct. Privacy has been defended as to acts in our homes and in our bedrooms. Cannot one say that the citizen who commits no wrongful act should have at least a similar right to be free of the duty fo explaining one’s peaceful presence in a public place? It is the duty of the courts to define and protect the public conduct so that only under very limited circumstances may one be ordered from the street when his conduct is beyond reproach. Until the courts determine the rights and limits of the policeman in a particular instance to direct citizens to move on, and until consideration is given to what the citizen was actually doing, not what the police officer thought the presence fo the citizen would do, ordinary persons who become rightfully stubborn at a police order will continue to have no protection. "People v. Galpern, (259 N.Y. 279, 181 N.E. 572, 83 A.L.r. 785 (1932)
“In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference.” Brown v. Tex., 443 U.S. 47
“if we are to remain a great and free nation—a beacon light in a world largely in darkness—we cannot tolerate the whittling away of our liberties by denying them to those whom we dislike, or with whom we violently disagree…each of us also has a duty, in our participation in public affairs, so to act as to preserve, protect and defend the rights of all of us.”230 F.Supp. 182
...even when an officer stops an individual on the basis of a reasonable suspicion of criminal activity, the Supreme Court has ruled that such a Terry stop may involve only brief questioning and "the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for arrest." Terry v. Ohio, 392 U.S. 1, 34, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)
"the detainee is not obliged to respond. And, unless the detainees' answers provide the officer with probable cause to arrest him, he must then be released."). The Ninth Circuit has ruled accordingly. "Arrest of a person for refusing to identify herself during a lawful Terry stop violates the Fourth Amendment's proscription against unreasonable searches and seizures." Martinelli v. City of Beaumont, 820 F.2d 1491, 1494 (9th Cir. 1987). Justin v. City of Los Angeles, 2000 U.S. Dist. LEXIS 17881
The district court also relied on a few district court and state appellate court decisions subscribing to the view that an arrest for refusal to identify oneself during a Terry stop would be unconstitutional. See, e.g., Timmons v. City of Montgomery, 658 F. Supp. 1086, 1093 (M.D. Ala. 1987) (agreeing with the Ninth Circuit and Justice Brennan’s concurrence in Kolender, court would find arrest under vagrancy statute would violate the Fourth Amendment); City of Pontiac v. Baldwin, 163 Mich. App. 147, 413 N.W.2d 689, 699 (Mich.App.1987) (person refusing to cooperate with officer during Terry stop cannot be prosecuted for obstruction an officer). Risbridger v. Connelly, 275 F.3d 565
Risbridger contends that the Supreme Court, beginning with Terry, has made clear that the Fourth Amendment prohibits police officers from compelling individuals to answer questions, including requests for identification, during the course of a valid investigative detention. The basis of Risbridger's assertion is the concurring opinion of Justice White in Terry, who wrote:
There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation. Risbridger v. Connelly, 275 F.3d 565
In Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979), the defendant was arrested under a Texas statute which made it a crime for a person to refuse to give his name and address after being requested to do so by a police officer during a lawful stop. The Court held the conviction invalid because the police officers did not have a reasonable suspicion of criminal activity sufficient to justify an investigatory stop, noting that the only reason the police stopped the defendant was to ascertain his identity.
"The stop and inquiry must be 'reasonably related in scope to the justification for their initiation.'" Ibid. (quoting Terry v. Ohio, supra, 392 U.S. at 29, 88 S. Ct. at 1884.) Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obligated to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released.
Risbridger contends...Officer Fadley violated Risbridger's Fourth Amendment rights by arresting Risbridger for failing to identify himself during a valid investigatory stop. Several lower federal courts, as well as some state courts, have reached this conclusion. One example is the Ninth Circuit's decision in Martinelli v. City of Beaumont, 820 F.2d 1491 (9th Cir. 1987)Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983)
Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose "observations lead him reasonably to suspect" that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to "investigate the circumstances that provoke suspicion." United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S. Ct. 2574, 2580, 45 L. Ed. 2d 607 (1975).
City of Houston v. Hill, U.S., 6/87; Peo. v Quiroga, 1DCA 6/93 "Verbal noncooperation and criticism of an officer doesn't qualify as physical resistance."
Peo v. Soun, DCA, 1995 A person cannot be handcuffed during a detention unless an exigency exists (danger to officer, escape of suspect, potential destruction of evidence). Such situation typically include when a suspect has been detained for a violent felony, burglary, possession of a weapon...
“When police officers, without arresting an individual, detain the individual for the purpose of requiring him to identify himself, they perform a seizure of his person subject to the requirements of the Fourth Amendment…The Fourth Amendment requires that the seizure of a person, less intrusive than an arrest, be based on specific, objective facts indicating that society's legitimate interests require the seizure, or that the seizure be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Risbridger v. Connelly, 275 F.3d 565
People v. Wilkins (App. 3 Dist. 1993)
For purposes of establishing that defendant willfully obstructed peace officer in discharge of duty of officer or that defendant attempted by means of threat or violence to prevent executive officer from performing duty, if offense is committed upon officer effecting arrest, the arrest must have been lawful. 17 Cal.Rptr.2d 743, 14 Cal.App.4th 761
“In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference.” Brown v. Tex., 443 U.S. 47
“ A detention can never be based solely on a hunch, rumor, intuition, instinct, or curiosity, (Wardlow (2000) 528 U.S. 119, 123-124; Tony C. (1978) 21 Cal.3d 888; Raybourn (1990) 218 Cal.App.3d 308.) Rather, you must have specific facts justifying your suspicion and you must be able to articulate these to a court. The court will then decide if these facts—based on the “totality of circumstances” including your training and experiences—were enough to make your suspicion objectively reasonable. (Wright (1998) 206 Cal.App.3d 1107; Lloyd (1992) 4 Cal.App.4th 724, 733.)
In Berkemer (1984) 468 U.S. 420, 439, the court stated that a detainee is not obligated to answer any questions you put to him during a lawful detention….The Court upheld as constitutional a Nevada “stop and identify” statute and found that a detainee’s failure to identify himself could be the basis for a lawful arrest under a companion statute almost identical to Penal Code §148. (Hiibel (2004) 542 U.S. 177)…Unlike Nevada and other states, California does not have a statute mandating that a detainee identify himself, and that obligation cannot be read into Penal Code §148…Hiibel does not provide a means of arresting someone for failure or refusing to identify himself. The Ninth Circuit has ruled that a suspect’s failure to identify himself cannot, on its own, justify and arrest: “the use of section 148 to arrest a person for refusing to identify herself during a lawful Terry stop violates the Fourth Amendment’s proscription against unreasonable searches and seizures.” (Martinelli (9th Cir. 1987) 820 F.2d 1494; Christian (9th Cir. 2004) 356 F.3d 1103, 1106; see also Quiroga (1993) 16 Cal.App.4th 961, 969, fn.2.)
“Generally speaking, [police] should avoid using force and/or physical restraints, such as handcuffs or guns, during a detention situation whenever possible. These “indications of custody” may cause a court to view the detention as an arrest. “Whenever the detention exceeds the boundaries of a permissible investigative stop, the detention becomes a de facto arrest requiring probable cause.” (Justin B. (1999) 69 Cal.App.4th 879, 887; Antonio B. (2008) 166 Cal.App.4th 435, 440; see also Carlos M. (1990) 220 Cal.App.3d 372, 384.)
The right of a person to resist unlawful arrest cannot be denied. People v. Craig (1907) 152 Cal 42, 91 P 997
...an executive officer is not “engaged in the performance” of his/her lawful duties when “he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties”.
(CALCRIM 2652 – California’s resisting an executive officer law)
“Similarly, if you resist an executive officer who is using excessive force against you, you are entitled to exercise your right to defend yourself in accordance with California’s self-defense laws. California’s self-defense laws will protect your conduct as long as the force you use is reasonable under the circumstances.
This logic is based on the same premise as above. When an executive officer uses excessive force…even during an otherwise “lawful” arrest…the arrest becomes unlawful, and the officer is no longer “engaged in the performance of his/her duties”.
“The instructions should have included the explanation that where excessive force is used in making what otherwise is a technically lawful arrest, the arrest becomes unlawful and a defendant may not be convicted of an offense which requires the officer to be engaged in the performance of his duties…” People v. White (1980) 101 Cal.App.3d 161, 164.
"In contrast, police knowledge of the identity of an individual they have deemed "suspicious" grants the police unfettered discretion to initiate or continue investigation of the person long after the detention has ended. Information concerning the stop, the arrest and the individual's identity may become part of a large scale data bank. In fact, the public concern advanced in support of section 647(e) is the prevention of crime, Solomon, 33 Cal.App.3d at 436-37, 108 Cal.Rptr. 867, namely the state's interest in allowing police officers to gather information which will aid them in detecting crime. The Supreme Court has recognized the significant intrusion occasioned by an identification requirement in a statute. See Brown v. Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 2641, 61 L. Ed. 2d 357 (1979). We believe that the serious intrusion on personal security outweighs the mere possibility that identification may provide a link leading to arrest.
"Although the prevention of crime is "a weighty social objective," Brown, 443 U.S. at 52, 99 S. Ct. at 2641, we agree with the courts and commentators who have concluded that statutes like section 647(e), which require the production of identification, are in violation of the fourth amendment. The two reasons for this conclusion are that as a result of the demand for identification, the statutes bootstrap the authority to arrest on less than probable cause, and the serious intrusion on personal security outweighs the mere possibility that identification may provide a link leading to an arrest." Lawson v. Kolender, 658 F.2d 1362
"The second reason why we believe section 647(e) intrudes upon the fundamental right to be secure against unreasonable searches and seizures is that the Solomon court improperly applied the Terry balancing test. We agree that prevention of crime is "a weighty social objective." Brown v. Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 2641, 61 L. Ed. 2d 357 (1979). The right of an individual wanderer to be free from the governmental intrusion of being required to furnish identification, however, is also substantial. The Supreme Court has extolled the freedom of locomotion. Persons "wandering or strolling" from place to place have been extolled by Walt Whitman and Vachel Lindsay. The qualification "without any lawful purpose or object" may be a trap for innocent acts….
Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers or loiterers may be "casing" a place for a holdup….
The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving "Personal liberty, which is guaranteed to every citizen under our constitution and laws, consists of the right of locomotion, to go where one pleases, and when, and to do that which may lead to one's business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. One may travel along the public highways or in public places; and while conducting themselves in a decent and orderly manner, disturbing no other, and interfering with the rights of no other citizens, there, they will be protected under the law, not only their persons, but in their safe conduct. The constitution and the laws are framed for the public good, and the protection of all citizens from the highest to the lowest; and no one may be restrained of his liberty, unless he has transgressed some law. Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees." Lawson v. Kolender, 658 F.2d 1362
Risbridger contends that the Supreme Court, beginning with Terry, has made clear that the Fourth Amendment prohibits police officers from compelling individuals to answer questions, including requests for identification, during the course of a valid investigative detention. The basis of Risbridger's assertion is the concurring opinion of Justice White in Terry, who wrote:
There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation. Risbridger v. Connelly, 275 F.3d 565
"This court is not aware of any decision by a federal court holding that a person may be subjected to criminal liability based solely upon his refusal to answer an officer’s questions or identify himself during a Terry stop…" Risbridger v. Connelly, 275 F.3d 565
Under California law, the elements of false imprisonment are (1) the nonconsensual, intentional confinement of a person. (2) without privilege, and (3) for an appreciable period of time, however brief. Blaxland, 323 F.3d 1198
Force or the threat of force are not only means by which tort of false imprisonment can be achieved; fraud or deceit or any unreasonable duress are alternative methods of accomplishing tort. Scofield, 45 Cal.App.4th 990, as modified on denial of rehearing, and review denied.
Essential thing in false imprisonment is the restraint of the person. Onick, 154 Cal.App.2d 381.
If the suspect’s actions were not prohibited under any statute, then a detention will be unlawful.
Strider (2009) 177 Cal.App. 4th 1393
Krohn (2007) 149 Cal. App. 4th 1294
In Lawson, the Ninth Circuit struck down a California vagrancy statute making it a misdemeanor for a person to refuse to identify himself and account for his presence when requested to do so by a police officer on the grounds that the statute violated the Fourth Amendment, was subject to arbitrary enforcement by police, and failed to give persons of ordinary intelligence fair and adequate notice of forbidden conduct. With respect to the Fourth Amendment, the Ninth Circuit stated that statutes penalizing a person's refusal to identify himself violate the Fourth Amendment because they "bootstrap the authority to arrest on less than probable cause, and the serious intrusion on personal security outweighs the mere possibility that identification may provide a link leading to arrest." Lawson, 658 F.2d at 1366-67. The United States Supreme Court affirmed the Ninth Circuit's decision on the basis that the statute was unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment because of its failure to clarify the requirement of "credible and reliable" information. Kolender v. Lawson, 461 U.S. 352, 353-54, 103 S. Ct. 1855, 1856, 75 L. Ed. 2d 903 (1983).
Based upon the above-cited authorities, including the Ninth Circuit's decision in Kolender, this Court concludes that the Fourth Amendment precludes a police officer from compelling an individual subject to a Terry-type stop to disclose his identity and that a state may not subvert the probable cause requirement of the Fourth Amendment by penalizing an individual for his failure to do so.
Whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person and the Fourth Amendment requires that the seizure be reasonable. U.S.C.A. Const.Amend. 4; Brignoni-Ponce, 95 S.Ct. 2574, 422 U.S. 873
Fourth Amendment does not proscribe all contact between the police and citizens, but it is designed to prevent arbitrary and oppressive interference by law enforcement officials with the privacy and personal security of individuals.
The 4th applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrests; accordingly, the 4th requires that such seizures be, at a minimum, reasonable.
4th’s prohibition of unreasonable searches and seizures of person, including brief investigatory stop of vehicle.
In order for investigative detention of defendant to be valid, investigative methods employed should be least intrusive means reasonably available to verify or dispel officer’s suspicion in short period of time. U.S.C.A. Const.Amend. 4
Encounter with police officers only triggers 4th am scrutiny when it loses its consensual nature. U.S.C.A. Const.Amend. 4; Lara, 163 F.Supp.2d 1107.
Police may stop and question person at any time, as long as that person knows that he or she is free to go at any time; these exchanges need not be supported by any suspicion that citizen is engaged in wrongdoing, and such stops are not considered seizures. U.S.C.A. Const.Amend. 4; Woo, 860 F.Supp. 1436
Detention occurs whenever police officers accost individual and restrains his freedom to walk away, or when officer stops an individual because he suspects that person may be personally involved in some criminal activity. West’s Ann.Cal.Const. Art. 1, § 13. Aldridge, 674 P.2d 240, 198 Cal.Rptr. 583, 35 Cal.3d 473.
As with all warrantless intrusions, burden lies with State to justify a detention. Bower, 597 P.2d 115, 156 Cal.Rptr. 856, 24 Cal.3d 638.
Detention based on mere curiosity, rumors, or hunch is unlawful regardless of officer’s good faith. U.S.C.A. Const.Amend. 4; Sawkow, 198 Cal.Rpte.374, 150 Cal.App.3d 999.
Investigative detention is unlawful if based on mere curiosity, rumor or hunch even if officer acts on good faith. Szabo, 165 Cal.Rptr. 719, 107 Cal.App.3d 419.
Validity of a temporary detention under law of California depends on whether peace officer had a rational suspicion that some activity out of the ordinary was taking or had taken place which, in some fashion, was connected with the subject under scrutiny and which, in some manner, suggested that activity was criminal. Walling, 486 F.2d 229
The duration of an investigatory detention cannot be unreasonably long. As the Supreme Court stated in Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983):
The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the office's suspicion in a short period of time.
If a detention does go beyond an investigative detention to constitute a de facto arrest, it must be based on probable cause. Royer, 460 U.S. at 498-99; Dunaway v. New York, 442 U.S. 200, 208-09, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979)
A detention may not be justified after the fact on a basis not relied on by officer, since such would countenance a detain-now-justify-later approach to police instructions which is contrary to constitutional requirements that protect a citizen against unreasonable searches and seizures. Bower, 597 P.2d 115. 156 Cal.Rptr. 856, 24 Cal.3d 638
Unless circumstances of encounter with police are so intimidating as to demonstrate that a reasonable person would have believed that he was not free to leave if he did not respond, questioning does not result in detention under the 4th; if the person refuses to answer and the police take additional steps to obtain an answer, the 4th imposes some minimal level of objective justification to validate the detention or seizure. U.S.C.A. Const.Amend.4; Delgado, 104 S.Ct. 1758, 466 U.S. 210
Under California law, to justify temporary detention by peace officer there must be a rational suspicion by the officer that some activity out of the ordinary is or has taken place, some indication to connect person under suspicion with the unusual activity, and some suggestion that the activity is related to crime. Mallides, 339 F.Supp. 1, reversed 473 F.2d 859.
An officer is under no duty to make an unlawful arrest. Curtis, 450 P.2d 33, 70 Cal.2d 347.
The validity of a particular temporary detention involves a determination of fact.
To justify a temporary detention of a person by a peace officer for investigation and questioning, there must be a rational suspicion by the peace officer that some activity out of the ordinary is or has taken place, there must be some indication to connect the person under suspicion with unusual activity, and there must be some suggestion that the activity is relates to crime. Superior Court, 106 Cal.Rptr.211, 30 Cal.App.3d 257.
While a detention of a citizen by police officer based on a “mere hunch” is unlawful, if there is a rational suspicion that some activity out of the ordinary is taking place and some suggestion that the activity is related to crime, a detention is permissible. U.S.C.A. Const.Amend.4; Gravatt, 99 Cal.Rptr.287, 22 Cal.App.3d 133.
Even if initial stop of vehicle by officer to see if break light was working was legally justified, officer’s right to detain driver ceased as soon as he discovered that brake light was operative, and officer had no right to detain driver further, to require him to “check out” headlights or to inspect car to find equipment violations to justify further detention, a record check and interrogation. Grace 108 Cal.Rptr. 66, 32 Cal.App.3d 447.
(if you have a right to refuse to searches and to answer questions…then one should not be threatened or intimidated from asserting that right or it negates the entire theory that it is consensual) “while knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.” Id., at 227. Ohio v. Robinette, 519 U.S. 133 (1996).
Questions asked during investigative stop must relate to justification for the stop. (358) In U.s. v. Perez, 37 F.3d 510 (9th Cir. 1994) the court stated that “questions asked during an investigative stop must be ‘reasonably related in scope to the justification for their initiation.’ An officer may broaden his or her line of questioning if he or she notices additional suspicious factors, but he or she notices additional suspicious factors, but these factors must be ‘particularized’ and ‘objective.’” In the present case, after the initial stop and questioning, the officer became suspicious that the defendant was involved in narcotics activities based on a number of objective factors. The car did not belong to defendant and he could not name the registered owner. His story was inconsistent and there was an overpowering cherry smell coming from inside the car with no visible source. He also appeared nervous. Circuit Judges O’Scannlain and Leavy and District Judge Huff held that these factors justified additional questioning. Baron, 94 F.3d 1312 (9th Cir. 1996).
For an investigative stop or detention to be valid, you (the officer) must have “reasonable suspicion” that: (1) CRIMINAL ACTIVITY MAY BE AFOOT AND (2) THE PERSON YOU ARE ABOUT TO DETAIN IS CONNECTED WITH THAT POSSIBLE CRIMINAL ACTIVITY.
Wardlow (200) 528 U.S. 119;
Ornelas (1996) 517 U.S. 690, 695-696;
Sokolow (1989) 490 U.S. 1, 7-8;
Bennett (1998) 17 Cal. 4th 373, 386
White (1990) 496 U.S. 325, 330;
Johnson (1991) 231 Cal App. 3d 1, 11
Wardlow (2000) 528 U.S. 119, 123;
Arvizu (2002) 534 U.S. 226, 274;
“Reasonable Suspicion” is evaluated based on objective facts. Your (the officer's) subjective thinking, i.e., the purpose behind your search or seizure (detention or arrest), should have no bearing on a court’s determination of the legality of your action. Your “subjective intentions” are irrelevant in determining whether a detention or an arrest was justified.
Sullivan (2001) 532 U.S. 769, 772;
Whren (1996) 517 U.S. 806, 813;
Robinette (1996) 519 U.S. 33, 38
Scott (1978) 436 U.S. 128, 138;
Letner (2010) 50 Cal. 4th 99, 145;
If the suspect’s actions were not prohibited under any statute, then a detention will be unlawful.
Strider (2009) 177 Cal.App. 4th 1393
Krohn (2007) 149 Cal. App. 4th 1294
A detention can never be based solely on a hunch, rumor, intuition, instinct, or curiosity.
Wardlow (2000) 528 U.S. 119, 123-124;
Tony C. (1978) 21 Cal.3d 888;
Raybourn (1990) 218 Cal.App.3d 308;
It is a public offense for a peace officer to use unreasonable and excessive force in effecting an arrest; therefore, a person who uses reasonable force to protect himself or others against the use of unreasonable excessive force in making an arrest is not guilty of crime. People v. Cuevas (1971, Cal App 5th Dist) 16 Cal App 3d 245, 93 Cal Rptr 916, 1971 Cal App LEXIS 1582.
A person may not use force to resist any arrest, lawful or unlawful, except that he may use reasonable force to defend life and limb against excessive force; but if it should be determined that resistance was not thus justified, the felony provisions of Pen C § 243, apply when the arrest is lawful, and if the arrest is determined to be unlawful the defendant may be convicted only of a misdemeanor (construing Pen C §§ 834a and 243). People v. Curtis (1969) 70 Cal 2d 347, 74 Cal Rptr 713, 450 P2d 33, 1969 Cal LEXIS 338.
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