Is excessive force by a police officer rendering unlawful an otherwise lawful arrest?

California, United States of America


The following excerpt is from People v. Olguin, 119 Cal.App.3d 39, 173 Cal.Rptr. 663 (Cal. App. 1981):

The first argument is that excessive force by a police officer renders unlawful an otherwise lawful arrest in that excessive force is not within the performance of the officer's duty. Since the officer must be acting in the performance of his duty, the use of excessive force renders it impossible for an arrestee to violate section 148. Appellant also adds that either taunting or beating an arrestee is not within an officer's duties. (See People v. White (1980) 101 Cal.App.3d 161, 167, 161 Cal.Rptr. 541.) Appellant then points out that nowhere in the instructions is the concept of the lawfulness of an arrest related to the use of excessive force or other improper officer conduct. All of the instructions on the lawfulness of the officers' conduct are related to probable cause for making the arrest and the proper procedures used in making the arrest.

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