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State v. Bradley9/28/2000
ful excessive force is no different when law enforcement officers abuse their authority:
Liberty can be restored through legal processes, but life and limb cannot be repaired in a courtroom. Therefore any rationale, pragmatic or constitutional, for outlawing resistance to unlawful arrests and resolving the dispute over legality in the courts has no determinative application to the right to resist excessive force. The commentators are unanimous on this point . . . and the Model Penal Code states it explicitly. People v. Curtis, 70 Cal. 2d 347, 450 P.2d 33, 39, 74 Cal. Rptr. 713, 719 (1969) (citations omitted).
The referenced Model Penal Code discourages resistance to even unlawful arrests, but allows self-defense against a peace officer based on the victim's perception of the threat of deadly force:
It should of course be noted, however, that the limitation forbids the use of force for the sole purpose of preventing an arrest; it has no application when the actor apprehends bodily injury , as when the arresting officer unlawfully employs or threatens deadly force . . . . Model Penal Code sec. 3.04 cmt. 3(a) (Official Draft and Revised Comments 1985) (emphasis added).
The great principle at the heart of the right of self-defense is exemplified by the facts of this very case. Before he was assaulted prisoner Bradley told guard Snodgrass he was not refusing to return to his cell, but simply could not do so because of physical illness. The guard reacted by spraying him directly in the face with pepper agent, and rubbing the pepper into his eyes to make the pain even more excruciating. During the ensuing struggle prisoner Bradley was accosted by multiple guards. At least two witnesses heard Bradley saying he could not breathe. According to Bradley he bit the guard's wrist only after he was pepper sprayed, crushed by multiple guards, and a hand covered his mouth and nose, posing what, at least arguably, reasonably appeared to be an immediate threat of suffocation.
But the majority demeans rational fears of serious injury or death by diminishing the right to legally defend against the perceived threat. It exalts the unlawful use of force by agents of the state at the expense of the victim, while immunizing the threat of excessive force. Paying lip service to prisoner Bradley's civil remedies against such excessive use of force, our majority would require the prisoner to await suffocation by correctional officers as precondition to self-defense, because only then could he be sure the danger was 'actual.' Majority at 14 n.6.
As is well recognized by the common law, post hoc legal remedies are no substitute for the right to defend against the threat of serious injury or death. Individuals can only be expected to act on their own reasonable perceptions, and those perceptions are the only true standard for self- defense, whether the threat emanates from a private person, policeman, or prison guard. The majority invites homicide by making the litmus for lethal threat the 'actuality' of carrying it out. But if death or grave bodily injury need be apparent and actual, the majority must make its case to the widows and orphans left behind. I cannot, and therefore dissent.
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