This is a case of arrest by combat. At least, that is what resulted when the arrestee refused to permit the police to place handcuffs on him and two members of a hostile crowd came to his assistance while the police were forcing him to submit to the use of handcuffs. The results of resisting arrest by the arrestee and his friends graphically demonstrate the physical hazards that can face those resisting arrest, as well as the danger to police officers.
By separate informations each of the defendants, Michael Westlund, John Vonhof and Richard Adams was charged with second-degree assault in that each, "with intent to resist and prevent the lawful apprehension or detention of himself or another person, did assault with his hands and fists" — individually identified police officers.
The uncontroverted facts are that on Saturday, May 2, 1972, in an area called Sunset Beach, along Hood Canal in Mason County, Westlund had a party at his residence for a large group of persons. At least some of those in attendance were minors although most appear to have been young adults.
Westlund provided a keg of beer and several bottles of wine. Westlund indicated he had been drinking beer from the time he set the keg in position at about 10 a.m. One defense witness, who was with him when the police encounter began at about 6 p.m., described Westlund as not being "falling down drunk," but that "he had quite a bit to drink."
The contact with police authorities began when a trooper from the Washington State Patrol, investigating a hit-and-run accident, found the suspect car near the Sunset Beach store. Westlund, a large man, who was leaving the store at
The officers left, but believing the driver of the hit-and-run vehicle was at the residence, told Westlund to produce him in 10 minutes at which time they would return. Westlund contends the officers said they would break up the party if the driver was not produced. The officers contend they told Westlund simply that they would impound the hit-and-run vehicle. Westlund testified, "I told them if they were going to come back to bring a search warrant, if they were going to come on the property."
About that time the driver's wife appeared and the officers and the driver's wife left the Westlund property. Westlund indicated that "things got tense" when the officers told him to produce the driver. The record does not reflect how, when, or where the driver was ultimately presented to the officers. He was, however, arrested.
As promised, two deputy sheriffs returned to Westlund's property and placed Westlund under arrest. The officers testified that Westlund was told he was under arrest for contributing to the delinquency of a minor. Westlund said he does not remember but it is possible he was so told. He does remember that immediately thereafter two more officers appeared and all four officers and he started toward the road.
Westlund's version of the events following his arrest begins: "I remember the one on this side had pulled my arm down and put a handcuff on it and I looked at him and I
Vonhof, who witnessed the arrest, said that he saw the officers had a handcuff on Westlund's left hand, "but he stiffened his arms out and wouldn't permit them to bend his right arm behind his back." Another defense witness, a guest at the party, indicated that initially Westlund "was resisting having his arms forced behind his back." However, after one handcuff was placed, the witness saw Westlund's other arm go stiff, one of the officers struck it with a hard blow, and all of the group then fell to the ground in the middle of the road. Westlund indicated that three or four of the officers were on top of him. The situation deteriorated to the point where it ended up in a big commotion in the middle of the road.
At that point Vonhof and Adams entered into the affray. Vonhof disengaged a trooper from the melee; Adams was able to remove a deputy sheriff. Adams did not testify. We cannot specify what he saw or precisely why he became involved. However, when asked why he became engaged in the fighting, Vonhof said; "I was stopping them from beating him up after they had already been beating him up for maybe 10, 15 seconds."
Ultimately, all three defendants were subdued and arrested, but not without considerable escalation in the ferocity of the police. Seven deputy sheriffs and three troopers became active participants. Two officers acknowledged using sap gloves; a bystander said he unmistakably saw an officer use a sap; another officer acknowledged that he later "maced" Westlund; several other officers seized a camera from a bystander, exposed the film, and threatened to arrest the owner for littering when he threw the exposed film on the ground. Westlund's face was described as looking
We have deliberately summarized the facts in a light most favorable to Westlund and the other two defendants in order to determine whether they were deprived of the right to present their respective defenses effectively to the jury. Concerning Westlund's use of force as self-defense, the jury was instructed, in relevant part, in instruction No. 16:
The jury was given no instruction on the issue of the right of third persons to come to the aid of another being unlawfully arrested.
The law in the state of Washington has been that one may resist an unlawful arrest by an amount of force reasonable and in proportion to the injury the arrestee faces. State v. Rousseau, 40 Wn.2d 92, 241 P.2d 447 (1952); State v. Schulze, 51 Wn.2d 878, 322 P.2d 839 (1958); State v. Eckman, 9 Wn.App. 905, 515 P.2d 837 (1973). The right of a third party to go to the aid of one being lawfully or unlawfully arrested has not been discussed in the case law of Washington.
There is no challenge on appeal to the legality of the initial arrest. This was clearly a case of lawful arrest for contributing to the delinquency of minors. Minors were present at the party and a trooper observed one person known to him to be 16 years of age holding a beer bottle.
The reason for our middle-ground rule is that under rare circumstances, not present here, the brutality may be so dangerous to the arrestee that his resistance or the intervention of others is necessary to prevent death or serious disability. We emphatically do not countenance a use of force by police which exceeds that essential to effect an arrest, but the arrestee's right to freedom from arrest without excessive force that falls short of causing serious injury or death can be protected and vindicated through legal processes, whereas loss of life or serious physical injury cannot be repaired in the courtroom. However, in the vast majority of cases, as illustrated by the one at bar, resistance and intervention make matters worse, not better. They create violence where none would have otherwise existed or encourage further violence, resulting in a situation of arrest by combat. Police today are sometimes required to use lethal weapons for self-protection. If there is resistance on behalf of the person lawfully arrested and others go to his aid, the situation can degenerate to the point that what should have been a simple lawful arrest leads to serious injury or death to the arrestee, the police or innocent bystanders. Orderly and safe law enforcement demands that an arrestee not resist a lawful arrest and a bystander not intervene on his behalf unless the arrestee is actually about to be seriously injured or killed.
We realize that there is no case law precisely in point upon the rule we have adopted. In State v. Rousseau, supra, the Supreme Court recognized that there is authority in other jurisdictions to the effect that, "even in the case of an unlawful arrest, the person arrested would be warranted in using force and inflicting personal injury upon the officer
We reiterate our belief that the rule regarding the right of the arrestee himself to resist excessive force in a lawful arrest situation should likewise be applied to a third party who intervenes in aid of such a person. Again we recognize that some other jurisdictions conflict with the modern trend. In this situation we see no difference in whether the arrest is lawful or unlawful. The third party is usually in no position to judge the initial legality of the arrest.
We hold that a bystander may not come to the aid of one being lawfully or unlawfully arrested by a uniformed police officer or one known or who should have been known to the bystander to be a police officer unless the arrestee was in actual danger of serious physical injury. Several elements, therefore, must be present before such a third person's assault of a police officer can be justified on the basis of defense of another. First, a third party may never intervene when the only threat to the arrestee is deprivation of his liberty by an arrest which has no legal justification. Aid is justified only if serious physical injury or death is threatened or inflicted. Second, the serious physical danger threatened or inflicted must be actual. A reasonable but mistaken belief that the arrestee was about to be seriously injured or that the arrestee was entitled to protect himself from such danger is insufficient. The third party acts at his
Turning now to another issue, the defendants objected numerous times throughout the 9-day trial to testimony by the officers and Westlund's neighbors relating to the atmosphere surrounding the party and the conduct of those in attendance who were not charged. These witnesses testified that there was a large number of people at the party, that most of those in attendance were drinking, that many of them hurled verbal insults and obscene language at the officers and that they struck and taunted the officers during the altercation.
People v. Booher, supra at 337. See also State v. Weiss, 73 Wn.2d 372, 438 P.2d 610 (1968), where a defendant convicted of possession of marijuana challenged the introduction of testimony as to the conditions of his premises when he was arrested. The Supreme Court upheld the admission of this evidence, concluding that the jury was entitled to know the conditions of the scene of the crime.
Defendants also complain of the admission of a deputy sheriff's exclamation, made at the time of Westlund's arrest, "Look at the drugs." While it is true that the substance was never tested, the statement was introduced to
The relevancy of evidence, however, must be balanced against any inflammatory effect it might have on the jury. If the relevance is remote and of little necessity and is engulfed by prejudicial effect, the evidence will not be admissible. State v. Golladay, supra. In the case at bar, the relevancy was not remote; the testimony went to the heart of the questions facing the jury. Any possible prejudice resulting from the nature of this testimony was clearly outweighed by its relevancy. The balancing process is within the sound discretion of the trial court, State v. Adams, 76 Wn.2d 650, 458 P.2d 558 (1969), rev'd on other grounds, 403 U.S. 947, 29 L.Ed.2d 855, 91 S.Ct. 2273 (1971), and the discretion was not abused here.
We condemn this conduct by law enforcement officers. Such actions amounted to unjustifiable gambling with the defendants' rights to a fair trial. We conclude, however,
Second, unless the irregular incidents are of a number and magnitude that they are per se unfair, that is, prejudice undoubtedly resulted, some showing of actual prejudice is required. Sheppard v. Maxwell, 384 U.S. 333, 16 L.Ed.2d 600, 86 S.Ct. 1507, 1517 (1966). In the case at bar, the conduct unquestionably did not reach the magnitude of errors in Sheppard, where a variety of untoward behavior was manifested by the court, media and prosecutor. Nor does the record reflect per se prejudice such as that shown in State v. Swenson, supra, where defense counsel's cross-examination was stifled by the court's expression of concern for the key witness who was pregnant and by the fact that the witness was at times physically unable to continue her testimony. Here, though the trial judge said that he could do nothing about picture taking of spectators, both before and after the film was given to defense counsel, he stated that appropriate action would be taken if it was brought to his attention that a witness was being or felt intimidated. No further pictures were taken. There was no showing that any witness actually felt intimidated or changed his testimony as a result of any of the alleged actions of the
PEARSON and PETRIE, JJ., concur.
Petition for rehearing denied June 9, 1975.
Review denied by Supreme Court July 29, 1975.