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It is a truism that law enforcement is a dangerous profession, and a lot that danger stems from pursuing and arresting individuals suspected of criminal activity. While law enforcement is permitted to use some degree of force to subdue a person during arrest, this ability is not unlimited, and the use of excessive force is prohibited. The use of excessive force by law enforcement is typically viewed as a civil rights issue, but it can also have an impact on criminal cases for purposes of showing bias against the arrestee, as well as being a basis for excluding evidence related to the arrest. Accordingly, retaining the services of an attorney focusing on criminal defense law can be crucial to using the use of excessive force against a criminal charge. Recently, the California Legislature has been asked to reconsider the State’s Use of Force Law.

 

Current Use of Force Law

 

Before getting into the parameters of Assembly Bill 392, it is important to understand more fully the use of force by law enforcement, and, more specifically, the use of excessive force. The use of force generally means the amount of effort required by law enforcement to compel compliance by an unwilling individual. Use of force doctrines are employed by law enforcement in an effort to balance the needs of security with ethical concerns for the rights and well-being of individuals. In other words, law enforcement is permitted to use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice, and warning is found to be insufficient.

 

Excessive force refers to situations where law enforcement, otherwise legally entitled to use force, exceed the minimum amount necessary to diffuse an incident or to protect themselves or others from harm. Constitutionally speaking, an individual’s right to be free from excessive force is found in the reasonable search and seizure requirement of the Fourth Amendment and the prohibition on cruel and unusual punishment in the Eighth Amendment.

 

Existing California law authorizes law enforcement to arrest individuals pursuant to a warrant or based upon probable cause. Under this law, an arrest may be made by the actual restraint of the individual or by submission to the custody of the arresting law enforcement officer. Further, this law authorizes a law enforcement officer to use reasonable force to effect the arrest, to prevent escape, or to overcome resistance. Additionally, current law does not require a law enforcement officer to retreat or desist from an attempt to make an arrest because of resistance or threatened resistance of the individual being arrested.

 

If an arrestee dies due to excessive force, the homicide would most likely be justifiable if committed when the individual has committed a felony and is either fleeing or resisting the arrest.

 

Proposed Changes

 

AB 392, if passed, would redefine the situations in which a homicide by law enforcement is justifiable. Specifically, homicide would be justifiable if in self-defense or the defense of another, or when necessary to prevent the escape of a felon whose immediate apprehension is necessary to prevent death or serious injury. Further, the bill would deem a homicide unjustifiable if law enforcement acted in a criminally negligent manner, including if the criminally negligent actions created the necessity for the use of deadly force.

 

Speak to a Criminal Defense Attorney

 

If you have been arrested on the suspicion of committing a crime, and law enforcement used excessive force against you during the arrest, contact the criminal defense attorneys at Manshoory Law Group, APC as soon as possible. Even before this proposed law goes into effect, law enforcement should not be injuring anyone during an arrest. The attorneys at our office have years of experience in criminal defense law, including the use of excessive force. We can analyze the circumstances of your arrest, and if we believe they can challenge the arrest, we will help ensure that you have the best possible chance at success. The attorneys here are available 24/7 to take your call. Contact the Los Angeles criminal defense firm today for an initial consultation.

 

 

 

 

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