WPIC 17.02.01 Lawful Force—Resisting Detention

Use this instruction in any case in which this defense is an issue supported by the evidence. See Comment below. Do not use this instruction with WPIC 17.04 (Lawful Force—Actual Danger Not Necessary).

Use bracketed material as applicable.

This instruction is based on State v. Holeman, 103 Wn.2d 426, 693 P.2d 89 (1985) and State v. Westlund, 13 Wn.App. 460, 536 P.2d 20 (1975). In Holeman, the state Supreme Court upheld the Westlund holding that an arrestee may not resist an arrest, and a bystander may not intervene on the arrestee's behalf, unless the arrestee is actually about to be seriously injured or killed. See also State v. Ross, 71 Wn.App. 837, 863 P.2d 102 (1993); State v. Belleman, 70 Wn.App. 778, 783, 856 P.2d 403 (1993); State v. Cyrus, 66 Wn.App. 502, 508, 832 P.2d 142 (1992). In State v. Valentine, 132 Wn.2d 1, 21, 935 P.2d 1294 (1997), the court reiterated its support of Westlund and Holeman. “[A]lthough a person who is being unlawfully arrested has a right … to use reasonable and proportional force to resist an attempt to inflict injury on him or her during the course of an arrest, that person may not use force against the arresting officer if he or she is faced only with a loss of freedom.”

In Holeman, the court stated that the rule applied regardless of whether the arrest was lawful or unlawful. Subsequently, the court held that an arrestee charged with assault upon a law enforcement officer “must show that there was an imminent threat of serious physical harm in connection with an unlawful arrest in order to establish legitimate use of force in self-defense.” State v. Mierz, 127 Wn.2d 460, 476, 901 P.2d 286 (1995), citing, inter alia, RCW 9A.16.020(3) and State v. Hornaday, 105 Wn.2d 120, 713 P.2d 71 (1986). Mierz also cited cases stating that a threat of serious injury, or excessive force, may justify the use of force against an arresting officer. State v. Mierz, 127 Wn.2d at 476–77. RCW 9A.16.020(3) provides that the use of force “by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person … in case the force is not more than is necessary” is lawful. Hornaday makes clear that the basis for the defense is that an illegal arrest is an assault, which may be resisted as such. State v. Hornaday, 105 Wn.2d at 130.

The state Supreme Court has clarified that this same standard applies to resisting unlawful detention by a correctional institution officer. State v. Bradley, 141 Wn.2d 731, 10 P.3d 358 (2000).

Issues relating to the lawfulness of the arrest and the degree of force used by the arresting officer are not raised in this pattern instruction. In certain circumstances, however, instructions may need to be drafted addressing these issues in light of specific factual questions submitted to the jury. Attention must be paid to the elements of the charged offense. “The lawfulness of an arrest only becomes a jury question if the issue is injected into the trial by reason of the charging language of the information, as, for example, when a defendant is charged with resisting ‘lawful’ apprehension.” State v. Hoffman, 116 Wn.2d 51, 97–98, 804 P.2d 577 (1991). See the Comment to WPIC 120.06 (Resisting Arrest—Elements).

The phrase “and imminent” has been added to further qualify “actual danger,” on the basis of the characterization of the rule in State v. Mierz, 127 Wn.2d at 476. The WPI Committee does not believe that in the context of the instruction there is a distinction between “danger” and the term “threat” as used by the court.

An excessive force arrest may be resisted only by force that is “reasonable and proportioned to the injury attempted on the party sought to be arrested.” State v. Hornaday, 105 Wn.2d at 130. See also State v. McCrorey, 70 Wn.App. 103, 851 P.2d 1234 (1993), partially abrogated on other grounds, State v. Head, 136 Wn.2d 619, 964 P.2d 1187 (1998). As noted above, the use of any force to prevent an arrest that threatens only a loss of freedom is not reasonable. State v. Hornaday, 105 Wn.2d at 130 (citing State v. Goree, 36 Wn.App. 205, 673 P.2d 194 (1983)). See also State v. Valentine, 132 Wn.2d 1, 21, 935 P.2d 1294 (1997); State v. Crider, 72 Wn.App. 815, 866 P.2d 75 (1994).

The phrase “known by the person to be a [police] [correctional] officer” has been bracketed in the instruction on the basis of the holding in State v. Belleman, 70 Wn.App. 778, 783, 856 P.2d 403 (1993), that there was no requirement the defendant know the arresting person is a police officer for the limitation on the self-defense rule to be operative. Belleman involved a prosecution under RCW 9A.36.031(1)(a) requiring the “intent to resist … lawful apprehension or detention.” In this context, the court was able to make the legal determination that it was a lawful arrest and, therefore, only the issue of the defendant's intent to resist it remained for the jury. The court reasoned that this was simply a variation of the rule that there is no requirement that the defendant know the arrest was lawful, citing State v. Goree, 36 Wn.App. 205, 673 P.2d 194 (1983). Belleman involved resistance to a lawful arrest. It is not clear if the court would reach the same result in a case involving an unlawful arrest by a person not known to be a police officer.

The statutory right to detain a person extends to store employees or others under certain circumstances. See, e.g., State v. Jones, 63 Wn.App. 703, 821 P.2d 543 (1992); RCW 9A.16.020(5) (force used by carrier of passengers); RCW 9A.16.020(6) (force used to prevent danger from mentally ill person); RCW 9A.16.080 (mercantile establishment); RCW 9A.16.120 (detention of person due to consumption of alcohol or drugs at outdoor music festivals). Because the detention does not have to be by a police officer, the title is phrased in terms of “Resisting Detention.”

Note that the issue of knowledge about a policeman's identity under the statute's subsection (1)(a) is distinct from that same issue under subsection (1)(g) (assault on an officer performing duties). For prosecutions under subsection (1)(g), knowledge that the person assaulted is a police officer is not an element. State v. Brown, 140 Wn.2d 456, 998 P.2d 321 (2000). For further discussion see the Comment to WPIC 35.23.02 (Assault—Third Degree—Law Enforcement Officer—Elements).