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State v. Bradley9/28/2000
e now consider. Valentine's holding was a person may not forcibly resist an unlawful arrest which threatens the 'mere' loss of freedom. Valentine, 132 Wn.2d at 21. The distinction between actual and perceived danger was never at issue, nor was the use of excessive force to effect the arrest ever at issue (although it could have been argued the force used to overcome the resistance was certainly excessive). As was the case in Holeman, the discussion of Westlund in Valentine was also entirely peripheral to the court's actual holding. Holeman, Ross, and Valentine are only mirrors of Westlund, and smoky ones at that.
State v. Hutchinson, 135 Wn.2d 863, 884-85, 959 P.2d 1061 (1998), however, is the most recent case from this court which actually stated and applied the common law rule, holding that a custodial defendant is entitled to employ even lethal self-defense against police guards based upon appearances.
The majority claims prescience of policy to justify an unwarranted expansion of state authority at the expense of centuries of legal tradition which affords at least a modicum of respect for prisoner's rights. The majority's rationale for denigrating reasonable self-defense against unlawful use of state power simply does not support its conclusion. The majority reasons, '{T}he arrestee's right to freedom from arrest without excessive force that falls short of causing serious injury or death can be protected and vindicated through legal processes,' and resistance and intervention may 'make matters worse, not better.' Westlund, 13 Wn. App. at 467. Generally, the majority's preference for legal remedies in lieu of self-help is asserted as its ultimate ratio decidendi. See Majority at 7. But even Westlund recognized, in sharp contrast to cases where the legal process actually provides a sufficient remedy, situations such as this where 'loss of life or serious physical injury cannot be repaired in the courtroom.' Westlund, 13 Wn. App. at 467 (emphasis added). Indeed, the traditional rule accounts for this eventuality by approving self-defense 'if there is an appearance of imminent danger, not actual danger itself.' Majority at 7. Such a reasoned standard reflects the reality that reasonable people act on reasonable perceptions. Common sense and the instinct to survive mandate men and women defend against serious injury or death when perceived. This imperative is in no way diminished simply because the perpetrator wears the badge of state power.
Moreover by relying upon the illusion of 'available' legal remedies, citing personal preferences of de-escalation and ''{o}rderly and safe law enforcement,'' the majority applies a different standard for self-defense against law enforcement officers than for self-defense against others who appear to pose the same imminent threat of serious harm. Majority at 7-8 (quoting Holeman, 103 Wn.2d at 430). This distinction not only defies common sense but also departs from the established rule in the overwhelming number of other jurisdictions which have considered it. More fundamentally, the majority ignores the simple truth that people act on their reasonable perceptions, and the law provides no adequate remedy for the victim once the trigger is pulled.
When excessive force is used or threatened the common law right of self- defense does not encourage citizens to resist, but rather protects those from criminal prosecution who were provoked to resistance. See Paul G. Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128, 1133- 34 (1969) (where resistance provoked by arbitrary police behavior, it is fundamentally unfair to punish the expression of deep emotion with measured resistance). The right to resist unlaw
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