Unlawful Arrest: Can You Use Force To Resist It?

In order to arrest a person in the California a police
officer must have either an arrest warrant, which is an order from the court
directing the police to arrest a person, or probable cause. Probable cause
means that the facts and circumstances were such that any reasonable and
prudent person would believe that the person being arrested has committed or is
committing a crime. If a police officer arrests a person without probable
cause, it is that person’s Orange
County criminal defense attorney to challenge the arrest in court as being
illegal.

In Orange County it is NOT unusual for the police or the
Orange County sheriff’s deputies to make unlawful arrests without the required
probable cause. We Orange County
criminal defense lawyers see this all too often. The favorite charges for
these officers are Penal Code
Section 647(f) [Drunk in Public] and Penal Code Section 148(a) [Resisting, Obstructing or Delaying
a Peace Officer]. The police often arrest people for these violations without
any probable cause at all. For instance, it is common for an officer to arrest
someone for being “drunk in public” who criticizes or questions the police when
that person has alcohol on their breath. If the person who has the temerity to
question or criticize or not to automatically obey the police does NOT have
alcohol on their breath, then the officer may choose to arrest them for Section
148(a)—resisting, obstructing, or delaying a peace officer.

When the police make an unlawful arrest, most of the people
they arrest more or less comply and submit to the officer’s force. However,
some people are so indignant at being wrongfully arrested that they physically
resist or fight back when the officer makes the arrest. These people are
typically charged with an additional charge of assault on a peace officer (Penal Code Section 243(b)).

Now, you might think that if the police wrongfully and
unlawfully arrest someone, the arrestee SHOULD have the right to fight back.
Unfortunately, as any criminal
defense lawyer in Orange County will tell you, this is not the law,. Penal
Code Section 834a states “If a person has knowledge, or by exercise of
reasonable care, should have knowledge, that he is being arrested by a peace
officer, it is the duty of such person to refrain from using force or any
weapon to resist such arrest.” (emphasis added) Thus, according to the law,
when a police officer wrongfully and unlawfully arrests us, we MUST submit to
that arrest.

Therefore, if you are wrongfully arrested for ANY charge, be
it Domestic
Violence, auto
theft, drug sales, hit and run, or any other charge, and you fight back, you will
also be charged with assault on a peace officer. Later, in court, your criminal
defense attorney can show that the arrest was unlawful. This may get the
underlying charge dismissed but it will not affect the charge of battery on a
peace officer under Penal Code Section 243(b). For example, if you are
wrongfully arrested for Criminal Threats and you use force to resist the unlawful arrest, your
criminal defense attorney in
Orange County may get the criminal threats charge dropped but you still
could be convicted of the battery charge.

If you face charges in the Orange County courts call The Law
Offices of EJ Stopyro today at (949) 559-5500 for a free and confidential
consultation with an experienced Orange County criminal defense attorney. You
can also visit us at www.ejesquire.com.
We have offices at 32072 Camino Capistrano, 2^nd
floor, San Juan Capistrano, CA and at 1901 Newport Blvd., Suite 350, Costa
Mesa, CA 92627.

If you face charges in the Orange County courts call The Law
Offices of EJ Stopyro today at (949) 559-5500 for a free and confidential
consultation with an experienced Orange County criminal defense attorney. You
can also visit us at www.ejesquire.com.
We have offices at 32072 Camino Capistrano, 2^nd floor, San Juan
Capistrano, CA and at 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.