People v. Cherry

The Facts

Defendant was accosted and seized by two individuals claiming to be police officers as he was entering his home.  Defendant resisted without any weapon, using his bare hands and teeth.  The police officers were found guilty of illegal arrest and unlawful assault.  As such, defendant is entitled to using force or violence against the police officers “to prevent an offense against his person…if the force or violence… was not more than sufficient to prevent such offense.”  Police officers were not in uniform at the time of their illegal arrest.  The record shows the police officers initiated the physical altercation.

The Issue

Whether resisting arrest by use of physical force against police officers constitutes more force than is necessary, where the officers initiate the violent altercation, undertake an illegal arrest, and the defendant could have submitted to the arrest.

The Holding/Reasoning

No.  Whether or not the defendant believed them to be police officers is immaterial.  The officers engaged in an illegal arrest and initiated the assault.  Therefore, the defendant was entitled to use of violent physical force in restraining the officers and preventing his own arrest.  An illegal arrest is an offense against the person and can be defended by use of physical force.  “If force is necessary to prevent an unlawful arrest, then force may be employed, the one limitation on its exercise being that the victim may not pursue his counterattack merely for the sake of revenge or the infliction of needless injury.”


Testimony of an observer shows that defendant specifically stated that he did not believe the men to be officers.    When he asked the officers to show their badges, he ran, bumping into one of the officers, at which point the other officer seized defendant by the neck and a struggle ensued.  The officers testified that they initiated the conflict because the man fled and bumped into them.  Then defendant bit into the thumb of the officer seeking to stop him and would not let go for some time, necessitating the other officer to punch him in the face to release.  Testimony of another patrolman witness stated that the officers identified themselves and policemen twice.  The defendant used more force than was necessary in this case.  He did not face serious bodily harm by simply being grabbed as he fled; and the biting of the thumb was excessive.  “It seems obvious to me that the force ‘not more than sufficient’ which a citizen may use in his own defense means not more than the amount of force that would have been deemed necessary by a reasonable person in a similar situation.”  A relevant existing condition is that the officers showed their badges… a reasonable man would not have reacted with thumb biting force.

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