E. Resisting Unlawful Arrest and Excessive Force During a Lawful Arrest

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

E. Resisting Unlawful Arrest and Excessive Force During a Lawful Arrest

First, it must be observed that there is no right to resist a lawful arrest, Town of Springdale v. Butler, 299 S.C. 276, 384 S.E.2d 697 (1989), and that the officer has the right to employ whatever force is necessary in order to carry out the arrest. State v. Franklin, 80 S.C. 332, 60 S.E. 953 (1908), aff'd sub nom. Franklin v. South Carolina, 218 U.S. 161 (1910). So long as the arresting officer is not using excessive force, i.e. force beyond that necessary to accomplish a lawful arrest, the arrestee is not entitled to instructions on self-defense. State v. Moultrie, 273 S.C. 60, 254 S.E.2d 294 (1979). If there is competent evidence that the arresting officer is using more force than is reasonably necessary, then the arrestee is entitled to an instruction that he may resist a lawful arrest if the officer is using excessive force. "[W]e conclude that an individual, under the appropriate circumstances, has the right to utilize the amount of resistance reasonably necessary to defend himself in the event excessive force is utilized incident to a lawful arrest." State v. Williams, 367 S.C. 192, 624 S.E.2d 443 (Ct. App. 2005). By the same token, if there is evidence, which if believed, indicates the officer used unnecessary force, then the defendant may also be entitled to lesser charge instructions. See State v. Cottrell, 376 S.C. 260, 657 S.E.2d 451 (2008) (reversing murder conviction for refusing to charge manslaughter when evidence about arrest was susceptible to more than one interpretation, including the victim acted in an impermissibly aggressive manner). Because the right to resist in this situation is similar to the right of self-defense, an appropriate charge should include language similar to that in a self-defense situation. See supra at Chapter VI.B.4. In order for the arrest to be lawful, the arresting officer, must, of course, have probable cause to believe that the arrestee has committed the crime for which he is being arrested. State v. Galloway, 305 S.C. 258, 407 S.E.2d 662 (Ct. App. 1991).

Resisting a lawful arrest is a class C misdemeanor; assaulting an officer while resisting a lawful arrest is a class E felony. S.C. Code Ann. § 16-9-320(A) & (B) (2003). The former is a lesser-included offense of the latter, and instructions on the lesser offense may be required in a prosecution for the greater. State v. Ritter, 296 S.C. 51, 370 S.E.2d 610 (1988). See discussion of...