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Can I Use Self Defense In Colorado Obstruction, Resisting Arrest and Second Degree Assault On A Police Officer Cases?

By H. Michael Steinberg – Colorado Denver Criminal Defense Lawyer

Can I Use Self Defense In Colorado Obstruction, Resisting Arrest and Second Degree Assault On A Police Officer Cases? – Being placed under arrest is one of the most traumatic experiences you may experience in life. Police officers are often not only much stronger than most people, their training and their experience on the street makes them frightening to all but the toughest among us.

The question is often asked – can a citizen use self defense when the police exceed their arrest authority and threaten you with unreasonable violence or use actually unnecessary violence on your person?

The answer is a cautionary YES – Colorado Law allows a jury (or a judge – in a judge trial) to consider the affirmative defense of self defense when anyone – including the police – fall under the specifics of Colorado’s self defense law as further defined and explained below.

Many times if a police officer is unnecessarily violent or rough, as human beings we will react to the pain associated with such abusive treatment. When this happens – when we react to that abuse with resistance, with our own version of violence – the police officers will often charge one of the following crimes:

I. Resisting Arrest (18-8-103)

1.A person commits resisting arrest if he knowingly prevents or attempts to prevent a peace officer, acting under color of his official authority, from effecting an arrest of the actor or another, by:

(a) Using or threatening to use physical force or violence against the peace officer or another; or

(b) Using any other means which creates a substantial risk of causing bodily injury to the peace officer or another.

2. It is no defense to a prosecution under this section that the peace officer was attempting to make an arrest which in fact was unlawful, if he was acting under color of his official authority, and in attempting to make the arrest he was not resorting to unreasonable or excessive force giving rise to the right of self-defense.

A peace officer acts “under color of his official authority” when, in the regular course of assigned duties, he is called upon to make, and does make, a judgment in good faith based upon surrounding facts and circumstances that an arrest should be made by him.

3.The term “peace officer” as used in this section and section 18-8-104 means a peace officer in uniform or, if out of uniform, one who has identified himself by exhibiting his credentials as such peace officer to the person whose arrest is attempted.

4.Resisting arrest is a class 2 misdemeanor.

II. Obstructing A Peace Officer (18-3-104)

1.(a) A person commits obstructing a peace officer, firefighter, emergency medical services provider, rescue specialist, or volunteer when, by using or threatening to use violence, force, physical interference, or an obstacle, such person knowingly obstructs, impairs, or hinders the enforcement of the penal law or the preservation of the peace by a peace officer, acting under color of his or her official authority; knowingly obstructs, impairs, or hinders the prevention, control, or abatement of fire by a firefighter, acting under color of his or her official authority; knowingly obstructs, impairs, or hinders the administration of medical treatment or emergency assistance by an emergency medical service provider or rescue specialist, acting under color of his or her official authority; or knowingly obstructs, impairs, or hinders the administration of emergency care or emergency assistance by a volunteer, acting in good faith to render such care or assistance without compensation at the place of an emergency or accident.

(b) To assure that animals used in law enforcement or fire prevention activities are protected from harm, a person commits obstructing a peace officer or firefighter when, by using or threatening to use violence, force, physical interference, or an obstacle, he or she knowingly obstructs, impairs, or hinders any such animal.

2.It is no defense to a prosecution under this section that the peace officer was acting in an illegal manner, if he was acting under color of his official authority as defined in section 18-8-103 (2).

…

4.Obstructing a peace officer, firefighter, emergency medical service provider, rescue specialist, or volunteer is a class 2 misdemeanor.

III. Second Degree Assault On A Police Officer (18-3-203)

In Colorado, you may be charged with Second Degree Assault on a Peace Officer If you:

Causes bodily injury to anyone while intentionally trying to prevent a police officer or firefighter from doing their duties.

Knowingly applied physical, violent force to a police officer, firefighter, prison guard, or a judge while they are in the performance of their duties.

So – Can You Use Your Right To Self Defense Against Police Officers Trying To Arrest You?

Let’s look a the Colorado obstruction of a police officer law. The Colorado obstruction statute provides:

A person commits obstructing a peace officer … when, by using or threatening to use violence, force, physical interference, or an obstacle, such person knowingly obstructs, impairs, or hinders the enforcement of the penal law or the preservation of the peace by a peace officer, acting under color of his or her official authority…. § 18-8-104(1)(a), C.R.S.

Whether you are charged with obstruction, resisting arrest, or some form of assault, you may be entitled to a jury instruction on self-defense.

While many of the laws protecting the police contain this – or a similar provision -“ It is no defense to a prosecution under this section that the peace officer was acting in an illegal manner, if he was acting under color of his official authority ” … you are not foreclosed from asserting your right to defend yourself.

The Colorado Law of Self Defense Under 18 -1- 704

… reads as follows:

” a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person.” § 18-1-704(1), C.R.S..

This provision ” permits a person to defend himself when he reasonably believes that unreasonable or excessive force, as proscribed by section 18-1-707(1)(a) [C.R.S.2009], is being used by law enforcement officers or that its use is imminent.”

The Colorado Case of People v. Fuller, 781 P.2d 647, 650 (Colo.1989) – Self Defense To The Colorado Crime Of Resisting Arrest, Obstruction Of A Peace Officer, Second Degree Assault on A Peace Officer

The Fuller case holds that the general law of self-defense is NOT precluded by the provisions in several laws that appear to preclude the defense if the peace officer is acting in an illegal manner.

The right to self defense applies even if you are charged with assaulting a police officer, the crime of resisting arrest, or obstruction of a police offer.

When a police officer makes an arrest in an ” illegal manner” and makes an “unlawful arrest” or other “unlawful exercise” of official power that causes harm or appears to cause harm to a citizen – that citizen is not precluded from raising self-defense that arises from the use of unreasonable or excessive force. Fuller holds that the unreasonable or excessive force can accompany either lawful or unlawful arrests.

While Colorado assault statutes do not specifically recognize the defense of self defense in the criminal statutes defining those crimes – this affirmative defense can be raised in a prosecution for assaulting a police officer.

If a Defendant is charged with obstructing a peace officer – he or she CAN assert the defense of self defense when that Defendant “reasonably believes that unreasonable or excessive force is being used by the peace officer.”

The kind of evidence necessary to sustain a jury instruction for the defense is minimal in nature. A Defendant’s own testimony can constitute “some evidence” in support of a self defense theory. This can be enough evidence that the police officers used, or were about to use, excessive force.

Put another way – if a a Defendant in a Colorado criminal case establishes – that a Colorado peace officer used unreasonable or excessive force on an arrestee – the arrestee is entitled to assert self-defense at trial and is entitled to a self-defense jury instruction. Even if the only supporting evidence is the highly improbable testimony by the defendant himself or herself. The jury makes the decision as the weight to be given to the self defense testimony of the Defendant – not the Judge.

The Jury Instruction – Self Defense In Physical Force On Peace Officer Cases

This is a typical jury instruction in a case of this nature:

It is an affirmative defense to the crimes of Second Degree Assault of a Peace Officer, Attempt, and Resisting Arrest that the defendant used physical force upon a peace officer:

1. in order to defend himself or a third person from what he reasonably believed to be the use or imminent use of unlawful physical force by the victim, and

2. he used a degree of force which he reasonably believed to be necessary for that purpose.

The Colorado Self Defense Law – § 18-1-704. Use of physical force in defense of a person

(1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.

(2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:

(a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or

(b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204 ; or

(c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302 , robbery as defined in section 18-4-301 or 18-4-302 , sexual assault as set forth in section 18-3-402 , or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203 .

(3) Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if:

(a) With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or

(b) He is the initial aggressor; except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or

(4) In a case in which the defendant is not entitled to a jury instruction regarding self-defense as an affirmative defense, the court shall allow the defendant to present evidence, when relevant, that he or she was acting in self-defense. If the defendant presents evidence of self-defense, the court shall instruct the jury with a self-defense law instruction. The court shall instruct the jury that it may consider the evidence of self-defense in determining whether the defendant acted recklessly, with extreme indifference, or in a criminally negligent manner. However, the self-defense law instruction shall not be an affirmative defense instruction and the prosecuting attorney shall not have the burden of disproving self-defense. This section shall not apply to strict liability crimes.

Summary and Conclusion – Can I use Self Defense In Colorado Obstruction, Second Degree Assault On A Police Officer Cases?

The State of Indiana recently enacted a law that specifically permits self defense against the police

The law requires those using force to “reasonably believe” that a law-enforcement officer is acting illegally and that it’s needed to prevent “serious bodily injury,”

Colorado’s Self-defense provision, § 18-1-704 permits self-defense when unlawful physical force is used or is imminent.

The kind of force “force” addressed in a self defense case is much broader than the actual, applied physical force. “Force” is defined in Black’s Law Dictionary as “constraining power, compulsion; strength directed to an end.” Merriam-Webster’s New International Dictionary defines force” as defined as “power, violence, compulsion, or constraint exerted upon or against a person or thing” and “violence or such threat or display of physical aggression toward a person as reasonably inspires fear of pain, bodily harm, or death.”

These definitions of force include the THREATENED use of unreasonable violence.

The Colorado Court Of Appeals stated it this way:

To interpret “force” differently in construing section 18- 8-103(2) would recognize that an arrestee has a right to self-defense only after the arrestee has been shot, and not to recognize any such right in those instances in which the arrestee has a reasonable basis to believe that he is about to be shot.

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Never stop fighting – never stop believing in yourself and your right to due process of law.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

A Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. If you are seeking counsel there maybe other more specific technical or legal advice on the information provided and related topics. For that, please contact the author.

If you are charged with A Colorado crime or you have questions about the topic of this article – Can I use Self Defense In Colorado Obstruction, Resisting Arrest and Second Degree Assault On A Police Officer Cases?- please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

Over 40 Years Specializing in Colorado Criminal Law H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 40 years of day to day courtroom experience – specializing in Colorado Criminal Law along the Front Range. He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options. Remember, it costs NOTHING to discuss your case. Call now for an immediate free phone consultation.

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