Being arrested very much strikes fear into the heart of most individuals. Further, it is this fear that is actually a feature, as opposed to a fault, of the American judicial system. By purposefully displaying authority, law enforcement, in fact, intends to strike a degree of fear into each person with whom they come into contact when investigating a crime. Based on human nature, fear helps to ward off the tendency to provide false information to law enforcement. Retaining the services of an experienced criminal defense attorney can be crucial to understanding this fear, and to provide an ally in responding to the charges. Unfortunately, in some cases, this display of authority – and associated intimidation – can go too far, especially when law enforcement uses physical force during an arrest. Recently, Governor Jerry Brown signed into law measures which are intended to provide public access to internal law enforcement investigations of the use of force. A brief discussion of these new measures, as well a general discussion of the types of force permitted by California law, will follow below.
Public Access to Investigation Records
As alluded to above, the new laws, which went through the California Legislature as SB 1421 and AB 748, would require various law enforcement personnel records, as well as records relating to specified incidents, complaints, and investigations involving law enforcement, be made available to the public. Further, the new laws would allow redaction only to remove personal information, such as a home addresses, telephone numbers, or identities of family members, to preserve the anonymity of witnesses, or to protect confidential medical, financial, or other information.
Additionally, the new laws would allow most video or audio recordings to be made available to the public (after a withholding period so as not to interfere with an active investigation). The primary exception to the availability of audio and video recordings would be for instances in which the recordings would violate the reasonable expectation of privacy of any person depicted in the recordings, in which case the recording may be redacted to protect that person’s privacy.
When taking a person into custody, law enforcement is allowed to use reasonable force, dependent upon the situation. However, if law enforcement uses unnecessary force, they can be subject to both criminal prosecution and civil liability. Whether a specific degree of force is reasonable is determined by a court, and takes into account the following:
- The severity of the crime;
- Whether the suspect posed a threat; and
- Whether the suspect was resisting or attempting to flee.
In California, the law notes that, when law enforcement has reasonable cause to believe a suspect has committed a crime, he/she “may use reasonable force to effect the arrest, to prevent escape or to overcome resistance.” If the suspect flees or forcibly resists, law enforcement “may use all necessary means to effect the arrest.” Finally, it should be noted that, if a suspect is aware or should be aware that he/she is being arrested, they are required “to refrain from using force or any weapon to resist such arrest.”
Additionally, the U.S. Supreme Court has held that law enforcement, only with probable cause to believe a suspect poses a threat of serious harm to the officer or others, may use deadly force to prevent escape. However, law enforcement is instructed to warn a suspect before using deadly force.
Speak to a Criminal Defense Attorney
If you have recently been arrested, and you believe that law enforcement may have been overzealous in their use of physical force against you, please contact the experienced criminal defense attorneys at Manshoory Law Group, APC as soon as possible. Our knowledge of and experience in criminal law includes knowing the extent to which law enforcement can use force during an arrest. We are able to examine the circumstances surrounding your arrest, and, if we feel that law enforcement improperly extended their bounds, we will work to devise a strategy and present the best possible case. Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.