Lawful Performance: Custodial Officer- -Use Of “Reasonable” Force
November 30th, 2014
People v. Gutierrez (2009) 174 Cal. App. 4th 515, identified the following problem with CC 2671:
Read literally, [CC 2671] authorizes a custodial officer to use reasonable force in four situations- -“to restrain a person, to overcome resistance, to prevent escape, or in self-defense”- -but erroneously limits to the first situation alone not only the prohibition against the defendant’s use of force or any weapon to resist reasonable force but also the authorization of the defendant’s use of reasonable force to defend against unreasonable or excessive force.
The CJ instruction itself does not contain a provision dealing with the defendant using reasonable force to defend, but a separate CJ instruction does contain a self-defense provision. The CJ self-defense provision, unlike the version of CC 2671 disapproved in Gutierrez, does state that a defendant is allowed to use reasonable force to defend in every situation where an officer is using unreasonable force. (CJ 9.28.)
Tags: Assaulting Police Officer, CC 2671, Self Defense