Due Process and Justice Racial Justice Police Accountability
Op-ed
By Christopher Dunn
As the country is bludgeoned by one video after another capturing police officers assaulting and even killing unarmed civilians – typically black men – we are in the midst of a national debate about proposals to curb police misconduct, ranging from body cameras to grand jury reform. As important and necessary as are reforms of police practices and criminal justice processes, it also is important to consider the options available to civilians who are on the scene and witnessing police action. Videotape available to anyone with an Internet connection routinely shows encounters in which police officers seize a person for a minor offense but nonetheless resort to excessive – and sometimes deadly – physical force that the person tries to defend against, with the Eric Garner video being the most dramatic example from New York. In many instances, the ensuing fracas leads to bystanders rushing in and surrounding the officers, creating a tense and dangerous situation for everyone. And, of course, civilians routinely pull out smartphones to videotape the struggle.
This all-too-common scenario raises important questions about the rights of civilians to resist police action to protect themselves, to physically intervene in police action to assist a person being assaulted by officers, and to videotape police action. Many may be surprised by the state of the law governing these different options. The Right to Resist or Rescue As exemplified by the Eric Garner incident, police union officials often argue that civilian injuries arising from police action result not from officer excesses but from civilians resisting efforts to arrest them. While it is unlawful to resist arrest, in New York that does not mean civilians are legally barred from defending themselves from officer assault nor does it mean that bystanders are barred from inserting themselves into arrest situations to defend a civilian who is being assaulted. On their face, New York statutes seem to give civilians few options. Section 205.30 of the Penal Law makes it a misdemeanor to resist a lawful arrest, with resisting occurring when a person “intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.
Separately, section 35.27 broadly bars the use of physical force in resisting arrest: “A person may not use physical force to resist arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer or peace officer . . . ."
With these provisions applying to persons being arrested and to bystanders who attempt to intervene in an arrest, they seem to legally bar those being arrested or witnessing an arrest from resisting or interfering with the arrest in general and from using physical force to do so in particular. Nonetheless, a third Penal Law provision raises the prospect of an opening for civilians. Specifically, section 35.15 provides in relevant part, “A person may . . . use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person.”
Precious few reported cases discuss section 35.15’s authorization of force in the context of police arrests. Perhaps the most significant one dates back to 1972, when the New York Court of Appeals decided People v. Stevenson (in which the NYCLU appeared as amicus curiae). Like several of the recent notorious incidents of police killings, the Stevenson case arose out of a minor traffic matter and then escalated. As the Court of Appeals explained, While performing [an] errand, defendant was driving unlicensed and had no registration for the vehicle. At 125th Street and Park Avenue, he stopped to get frankfurters and a drink for his two passengers. When he returned with the food, he noticed Officer Davis leaning inside the car. The officer asked for his license and registration and “I asked him what was wrong and he said I was obstructing traffic and I said I wasn’t. So he said ‘Give me your license and registration.’ And I said, ‘Just a minute.’ And I put my hand inside the car to give the franks and drinks to the people inside and he pushed me ... I asked him why is he pushing me for. He asked me [again] for my registration, so what -- you know, what is he edging me on for? ... So I said ‘Why?’ I kept on asking him why. He said, ‘You are under arrest.’ I said, ‘No, for what?’ ... he just kept on saying, ‘No, you are under arrest,’ and was grabbing for me.” He then noticed two other police officers approaching the scene with one of the officers wielding his “stick”. Afraid that he was going to be beaten, he grabbed Officer Davis by the shoulders and swung him around so that he was between him and the oncoming officers. “Please don’t let them hit me,” he told Davis. “If there is something wrong, I'll go with you but don't let them hit me.” He stated he never punched or kicked any of the officers, but that he was kicked and hit. After several other officers had joined the fracas, he was taken to the precinct house.
Among other offenses, Stevenson was charged with and convicted of resisting arrest. In the Court of Appeals, he argued the trial court had improperly failed to instruct the jury of the availability of a justification defense under Penal Law section 35.15. Citing that section, the Court of Appeals agreed that “there can be no cavil with the proposition that a citizen may use reasonable force in self-defense where the force exerted by the police in effecting an arrest is excessive.” (Nonetheless, it affirmed the conviction on the grounds that Stevenson had resisted arrest before any threat posed by the officers presented itself, rendering “moot” any justification defense Stevenson might have had for his use of force later in the interaction.)
In stating that a citizen could invoke section 35.15 to justify the use of physical force to resist excessive force by a police officer, the Court of Appeals cited a single New York case, an Appellate Division decision from a year earlier. In People v. Sanza, the Second Department reversed a conviction because the trial court had failed to instruct the jury that the defendant was entitled to use physical force to defend himself from a police assault. Notwithstanding the seemingly broad sweep of Penal Law section 35.27’s bar on the use of force to resist arrest, the Second Department held, Where the evidence adduced at the trial permits the inference that the defendant was the victim . . . of the use of excessive physical force to effectuate an arrest, he is entitled to a charge that reasonable acts of self-defense are justifiable. In the case at bar this rule applies to both the charge of assault in the second degree and to the charge of resisting arrest, despite section 35.27 of the Penal Law. The purpose of that section is merely to prevent combat arising out of a dispute over the validity of an arrest and does not prevent an individual from protecting himself from an unjustified beating (emphasis added). Confirming the currency of Stevenson and Sanza, the Second Circuit recently cited them in rejecting a claim that Penal Law section 35.27 barred a civilian from trying to grab the nightsticks of police officers who were beating him without justification.6 And under these two cases, New York law allows those facing arrest to use physical force to defend themselves
