State v. Anderson
253 S.E.2d 48
N.C. Ct. App.
1979
Check Treatment
MORRIS, Chief Judge.

Defendant’s appeal raises issues of the right of an individual to come to the aid of himself or another in defending against an arrest being effected by the alleged excessive use of force. Defendant contends that based upon the evidence presented in this case, he is entitled to an instruction defining his right to self-defense and defense of another. We agree.

It is elementary that the trial court, in its instructions to the jury, is required to declare and explain the law arising on the evidence. See G.S. 15A-1232. It, therefore, follows that the trial court is required to instruct the jury on the question of self-defense when that question is raised by the evidence, even in the absence of a request to do so. “Where there is evidence that defendant acted in self-defense, the court must charge on this aspect even though there is contradictory evidence by the State or discrepancies in defendant’s evidence.” State v. Dooley, 285 N.C. 158, 163, 203 S.E. 2d 815, 818 (1974); State v. Watkins, 283 N.C. 504, 196 S.E. 2d 750 (1973).

An officer of the law has the right to use such force as he may reasonably believe necessary in the proper discharge of his duties to effect an arrest. G.S. 15A-401(d)(1); State v. Mensch, 34 N.C. App. 572, 239 S.E. 2d 297 (1977), cert. denied, 294 N.C. 443, 241 S.E. 2d 845 (1978). Within reasonable limits, the officer is properly left with the discretion to determine the amount of force required under the circumstances as they appeared to him at the time of the arrest. Todd v. Creech, 23 N.C. App. 537, 209 S.E. 2d 293 (1974) (civil assault action against police officer); State v. Fain, *322 229 N.C. 644, 50 S.E. 2d 904 (1948). Nevertheless, when there is evidence tending to show the excessive use of force by a law enforcement officer, the trial court is required to instruct the jury that the force used against the law enforcement officer was justified or excused if the assault was limited to the use of reasonable force by defendant in defending himself from excessive force. State v. Mensch, supra.

The right to defend oneself from the excessive use of force by a police officer must be carefully distinguished from the well-guarded right to resist an arrest which is unlawful. See e.g., State v. Jefferies, 17 N.C. App. 195, 193, S.E. 2d 388 (1972), cert. denied, 282 N.C. 673, 194 S.E. 2d 153 (1973) (applying G.S. 14-223, Resisting officers); State v. Allen, 14 N.C. App. 485, 188 S.E. 2d 568 (1972) (same). One resisting an illegal arrest is not resisting an officer within the discharge of his official duties. State v. Sparrow, 276 N.C. 499, 173 S.E. 2d 897 (1970); State v. Bradley, 32 N.C. App. 666, 233 S.E. 2d 603 (1977). However, the right to use force to defend oneself against the excessive use of force during an arrest may arise despite the lawfulness of the arrest, and the use of excessive force does not render the arrest illegal. State v. Mensch, supra.

There is evidence in the record to suggest that defendant was merely protecting himself from an unprovoked attacked by Officers Pendry and Shumate. Defendant’s version of this episode suggests that defendant merely put his hand on Officer Pendry’s shoulder and stated, “Hey, man . . . that’s my girl friend . . . she ain’t done nothing.” According to defendant’s witnesses, the unprovoked attack followed. The credibility of the defendant’s evidence is for the jury. There is sufficient evidence presented on the record to entitle defendant to an instruction on self-defense.

Defendant further contends that he was entitled to a jury instruction with respect to the law excusing or justifying an assault which is in defense of another person. His position is taken in reliance upon the established rule in this State that an individual has a right to go to the defense of another if he has a well-grounded belief that a felonious assault is about to be committed upon the other person. See State v. Fields, 268 N.C. 456, 150 S.E. 2d 852 (1966); State v. Graves, 18 N.C. App. 177, 196 S.E. 2d 582 (1973), and cases cited infra.

*323 We agree that there can be exceptional circumstances under which our law must recognize the right of a bystander to come to the aid of an arrestee who is the object of the excessive use of force. The perimeters of that right, however, must be carefully defined. That this is necessary is pointed out by the rather typical situation presented by this case. Officers are often placed in the position of having to effectuate an arrest in the midst of a hostile crowd. Very often such a group may be lacking in good judgment and, for several reasons, may be quite intolerant of the intrusion of police officers. The interference of one bystander, no matter how well-intentioned, could trigger deadly retaliation by police officers who are understandably and reasonably concerned for their personal safety. Intervention might also incite the passions of a hostile crowd to initiate violent action against outnumbered police officers. Such volatile situations compel a rule of law that carefully balances the need to protect officers as well as bystanders who may be injured as the result of an escalated confrontation between officers and a hostile crowd, and the desire to prevent serious and unprovoked injury to citizens from overzealous police officers. Because of the possibility of such situations and the possible escalation of violence, it is perhaps best to consider a rule of law that would discourage interference except under the most limited circumstance, and leave the victim ar-restee to his remedy in a civil action for damages. See generally State v. Westlund, 13 Wash. App. 460, 536 P. 2d 20 (1975).

In recognizing the right of an arrestee to defend himself in the face of the excessive use of force by a law enforcement officer, our Courts followed the traditional case authority recognizing the right of an individual to defend himself from an unlawful assault. See State v. Polk, 29 N.C. App. 360, 224 S.E. 2d 272 (1976).

Defendant here urges that, in defining the right, if any, of a third person to interfere in an arrest, we follow the parallel of those cases recognizing the right under certain circumstances to come to the defense of another. It was said in State v. Clark, 134 N.C. 698, 47 S.E. 36 (1904), that where the defendant had a well-grounded belief or apprehension that one party was attempting to kill or do great bodily harm to a third person, he had a right to interfere to prevent the act. Similarly, the Court in State v. Robinson, 213 N.C. 273, 195 S.E. 924 (1938), held that where there *324 was sufficient evidence, defendant was entitled to an instruction that if he had a well-grounded belief that a felonious assault was about to be committed on another, he had the right, and it was his duty as a private citizen, to interfere to prevent the supposed crime. See State v. Fields, supra, State v. Hornbuckle, 265 N.C. 312, 144 S.E. 2d 12 (1965); State v. Moses, 17 N.C. App. 115, 193 S.E. 2d 288 (1972); see also State v. Rutherford, 8 N.C. 457 (1821). Compare, State v. Maney, 194 N.C. 34, 138 S.E. 441 (1927) (defense of family member); State v. Johnson, 75 N.C. 174 (1876) (same).

It is our opinion that the privilege to intervene in the context of a supposed felonious assault upon an arrestee by a person known or reasonably believed to be a police officer must be more limited than the traditionally recognized right to come to the defense of a third party. Compare, People v. Young, 11 N.Y. 2d 274, 183 N.E. 2d 319 (1962) (officers attempting arrest not identified as police officers). The more limited right is based on the proposition that an officer is presumed to be acting lawfully while in the exercise of his official duties. Therefore, one who comes to the aid of an arrestee must do so at his own peril and should be excused only when the individual would himself be justified in defending himself from the conduct of the arresting officers. This is apparently the majority rule with respect to the defense of others in the non-arrest as well as the arrest context. See People v. Young, supra; 6A C.J.S., Assault and Battery § 93; see generally Anno., Right to Resist Excessive Force Used in Accomplishing Lawful Arrest, 77 A.L.R. 3d 281 (1977). We reject the rule that would allow a bystander coming to the defense of an arrestee to rely upon the reasonable belief that excessive force is being used. We do so for reasons discussed above and for those reasons which prompted the California courts to reject that rule. People v. Booher, 18 Cal. App. 3d 331, 95 Cal. Rptr. 857 (1971). We quote:

“[I]t is argued that the rule of reasonable appearance should not be applied to cases involving interference with arrest by third parties since the impulse of self-preservation is not present and that lack of knowledge and understanding of the facts and law by such person would unduly interfere with the vital public interest surrounding law enforcement. We agree that public policy discourages forceful intervention in arrests by third party bystanders because, among other things, the probabilities are that such intervention would only exacer *325 bate the situation.” 18 Cal. App. 3d at 335, 95 Cal. Rptr. at 859.

The New York Court in People v. Young, supra, adopted a similar rule to apply regardless of whether the intervenor knew or should have known that police officers were involved. Similarly, in the recent case of State v. Westlund, supra, the Court held that a bystander acts at his own peril, and if it is subsequently determined that the arrestee was not justified in resisting the arrest, the bystander would similarly not be justified in coming to his aid.

We hold simply that the evidence presented by the defense presents facts which, if believed, might justify defendant in coming to the defense of the arrestee. The reasonableness of the officer’s conduct in effectuating the arrest of Darlene Billings is a question for the jury, and defendant is entitled to an instruction that defendant was justified in interfering with the arrest if the arrestee was herself justified in resisting the arrest. See generally Anno., 77 A.L.R. 3d 281 (1977). Similarly, the bystander is entitled to use only such force as is reasonably necessary to defend the arrestee from the excessive use of force. Cf. State v. Mensch, supra; State v. Polk, supra.

Defendant cites State v. Mink, 18 N.C. App. 346, 196 S.E. 2d 552 (1973), in support of his contention that the magistrate’s order charging defendant with violating G.S. 14-33(b)(4) was defective. He argues that he is entitled to have the judgment arrested for failure of the order to specifically allege the duty of office which the public officer was discharging or attempting to discharge. Mink has been specifically overruled by this Court in State v. Waller, 37 N.C. App. 133, 245 S.E. 2d 808 (1978). It is now recognized that under G.S. 14-34(b)(4) “the particular duty the officer was performing when assaulted is not of primary importance, it only being essential that the officer was ‘performing or attempting to perform any duty of his office.’ State v. Kirby, supra, 15 N.C. App. at 488, 190 S.E. 2d at 325.” State v. Waller, 37 N.C. App. at 136, 245 S.E. 2d at 810-811.

We do not discuss defendant’s remaining assignments of error. The alleged errors to which they are directed are not likely to recur upon retrial of this matter. For the failure of the trial *326 court to instruct the jury with respect to defendant’s right of self-defense and defense of another, he must be afforded a

New trial.

Judges MARTIN (Harry C.) and CARLTON concur.