I respectfully dissent from the majority's resolution of this case. Specifically, I find that the trial court's instructions to the jury were deficient in not adequately providing the law needed to determine whether appellant violated Cleveland Municipal Code 615.08. I would have thus sustained appellant's first assignment of error, thereby requiring a reversal and remand of the action for new trial.
Appellant was convicted of violating Cleveland Codified Ordinance 615.08(A), which mirrors R.C. 2921.33, and provides:
"(A) No person, recklessly or by force, shall resist or interfere with a lawful arrest of himself or another."
Prior to 1975, a person's right to resist an unlawful arrest was governed by common law. A person had an absolute right to resist an unlawful arrest. Columbus v. Holmes (1958), 107 Ohio App. 391, 8 O.O.2d 376, 152 N.E.2d 301.
The common-law rule, however, was restricted by the Ohio Supreme Court in Columbus v. Fraley (1975), 41 Ohio St. 2d 173, 70 O.O.2d 335, 324 N.E.2d 735:
"* * * [W]e hold that in the absence of excessive orunnecessary force by an arresting officer, a private citizen may not use force to resist arrest by one he knows * * * is an authorized police officer * * * whether or not the arrest is illegal under the circumstances." (Emphasis added.) Id. at 180, 70 O.O.2d at 339, 324 N.E.2d at 740.
Appellant asserts in his first assignment of error that the trial court erred in its instructions to the jury by not stating if it finds that excessive force had been used, the defendant was privileged to resist, and it should return a verdict of not guilty. He argues that the jury was denied the opportunity to determine this factual question by not receiving the instruction. Appellant also stresses that there was ample evidence from which to find excessive force used by the officers.
The city responded too simply to appellant's allegation by stating:
"[T]he jury in the case at bar found that the officers did have probable cause to arrest the Defendant; therefore the Defendant did not have the right to resist the lawful arrest."
Missing from this equation is the Supreme Court's caution that a defendant does not have the right to resist a lawful arrest in the absence of excessive or unnecessary force.
A criminal defendant has the right to expect that the trial court will instruct the jury on all issues raised by the evidence. State v. Williford (1990), 49 Ohio St. 3d 247, *Page 326 551 N.E.2d 1279. The evidence in the present case included appellant's testimony that Officer Edelman grabbed his arm as the officer told him he was under arrest. Edelman then immediately "yanked" and pulled appellant, eventually pushing him up against a glass window. Appellant testified that he believed Edelman to be "way out of order" at this point. Edelman continued by dragging appellant, tripping him and then pushing appellant to the ground. Appellant then physically reacted to Edelman's actions. It is readily apparent that the majority overlooked this testimony in concluding that the "evidence does not show that appellant was privileged to resist his arrest because of excessive or unnecessary force by Officer Edelman" and, hence, in concluding that the appellant's reliance onColumbus v. Fraley (1975), 41 Ohio St. 2d 173, 70 O.O.2d 335,324 N.E.2d 735, is erroneous and misplaced.
The Seneca County Court of Appeals in State v. Logsdon (Dec. 4, 1990), Seneca App. No. 13-89-10, unreported, 1990 WL 197883, recognized other jurisdictions which hold that an officer's use of excessive force in effecting an arrest may amount to an assault against the arrestee, thereby affording the arrestee the right to respond with reasonable force. See People v. Stevenson (1972), 31 N.Y.2d 108, 335 N.Y.S.2d 52, 286 N.E.2d 445; State v.Reinwand (1988), 147 Wis. 2d 192, 433 N.W.2d 27; Annotation (1977), 77 A.L.R. 3d 381. In finding that this analysis equally applies under Ohio law, the court stated:
"With an allegation of unnecessary or excessive force in a resisting arrest charge, a defendant attempts to excuse or justify his actions in the classic nature of an affirmative defense, i.e., `confession and avoidance.' Thus, the defendant effectively admits his resistance, if only to show that it was necessary in order to protect himself from the officer's excessive force. The defense is peculiarly within the knowledge of the defendant because only the defendant can adequately demonstrate to the trier of fact the point at which he felt he had to protect himself from the action of the arresting officer." Logsdon, at 5.
The burden of proving unnecessary or excessive force is borne by the defendant, and is proof by a preponderance of the evidence. Id.
I agree with the Seneca County Court of Appeals and its interpretation of Fraley in its holding that the Supreme Court of Ohio affords an arrestee the right to respond to unnecessary or excessive force by a police officer in effecting an arrest. Therefore, the trial court here prejudicially eliminated this caution from the instruction, precluding the jury from correctly determining whether appellant resisted arrest in the absence of excessive or unnecessary force. The jury was never made aware of the relevance of appellant's testimony. The majority unfortunately falls into the same prejudicial trap by concluding outright that appellant's evidence did not demonstrate unnecessary or excessive force. *Page 327 This determination is not one for this court but is the responsibility of a jury in the first instance.
There are other facts in this case that add to my unwillingness to affirm appellant's conviction for resisting arrest. First, I am troubled by the fact that appellant was a long-time student at Cleveland State University and his father was a professor there. Nonetheless, the Cleveland State officers, rather than secure an arrest warrant for a misdemeanor based upon the victim's identification of appellant as his alleged assailant, broadcast appellant's description. I fail to comprehend this action when appellant could easily have been approached by any officer with an arrest warrant in hand. Second, it appears that a virtual posse was formed when other officers were called to the scene. I see no justification whatsoever for the arrival of five or six officers to assist in the warrantless misdemeanor arrest of a student. Finally, I am astonished that an attempted warrantless misdemeanor arrest escalated into a battle between several officers and a student, resulting in the severe injury to appellant's knee.
In conclusion, I do not agree that appellant's reliance onFraley was erroneous. The evidence offered by appellant may have allowed the jury to find that the arresting officers' use of force was excessive or unnecessary. However, the jury was precluded from knowing the relevance of appellant's testimony in reaching this conclusion by the trial court's failure to apprise them of the meaning of the evidence. Appellant's first assignment of error, therefore, should have been sustained.