| Resisting Peace Officer or Firefighter | | | | officer's holster by the defendant. |
| California Penal Code Section 148 makes it a | | | | (3) The firearm safety was released by the |
| criminal offense to willfully resist, delay, or | | | | defendant. |
| obstruct police officers and firemen when they | | | | (4) An independent witness corroborates that the |
| are performing their duties. The punishment varies | | | | defendant stated that he or she intended to |
| with the degree of the offense, as a | | | | remove the firearm and the defendant actually |
| misdemeanor or a felony. Some of the offenses | | | | touched the firearm. |
| are "wobblers," meaning that the crime may be | | | | (5) An independent witness corroborates that the |
| punishable as either a misdemeanor or felony. The | | | | defendant actually had his or her hand on the |
| reason that resisting a peace officer of firefighter | | | | firearm and tried to take the firearm away from |
| is a crime is based on the principle of public | | | | the officer who was holding it. |
| safety, and the importance given to these | | | | (6) The defendant's fingerprint was found on the |
| professions in performing their duties for the | | | | firearm or holster. |
| public. However, firefighters and police officers | | | | (7) Physical evidence authenticated by a |
| may exceed the scope of their employment, | | | | scientifically verifiable procedure established that |
| such as using unlawful force, which affects the | | | | the defendant touched the firearm. |
| defenses available to the defendant when charged | | | | (8) In the course of any struggle, the officer's |
| with this offense. | | | | firearm fell and the defendant attempted to pick |
| Section (a) (1) states, "Every person who willfully | | | | it up." |
| resists, delays, or obstructs any public officer, | | | | Defenses |
| peace officer, or an emergency medical technician | | | | Police officers may not use excessive force, such |
| ... in the discharge or attempt to discharge any | | | | that their behavior itself becomes a criminal |
| duty of his or her office or employment, when no | | | | offense. The Penal Code provides for this, stating |
| other punishment is prescribed, shall be punished | | | | "This section shall not apply if the public officer, |
| by a fine not exceeding one thousand dollars | | | | peace officer, or emergency medical technician is |
| ($1,000), or by imprisonment in a county jail not | | | | disarmed while engaged in a criminal act." |
| to exceed one year, or by both that fine and | | | | Peace officers are only allowed to use "reasonable |
| imprisonment." | | | | force" to affect an arrest, prevent escape or |
| Section (2) states, "Except as provided by | | | | overcome resistance. Reasonableness is not |
| subdivision (d) of Section 653t, every person who | | | | determined from the officer's subjective point of |
| knowingly and maliciously interrupts, disrupts, | | | | view, but rather what a reasonable officer in the |
| impedes, or otherwise interferes with the | | | | same or similar circumstances would have |
| transmission of a communication over a public | | | | deemed reasonable. In addition, officers may |
| safety radio frequency shall be punished by a fine | | | | make an arrest only when a public offense has |
| not exceeding one thousand dollars ($1,000), | | | | been committed. This means that if it is a |
| imprisonment in a county jail not exceeding one | | | | misdemeanor, it must have been performed in |
| year, or by both that fine and imprisonment." | | | | the officer's presence. An exception to this is a |
| Section (b) states, "Every person who, during the | | | | DUI arrest. |
| commission of any offense described in | | | | Police officer's may make an arrest for felonies, |
| subdivision (a), removes or takes any weapon, | | | | even if the officer did not witness the commission |
| other than a firearm, from the person of, or | | | | of the felony. A felony arrest may be made with |
| immediate presence of, a public officer or peace | | | | or without a warrant. An arrest warrant must be |
| officer shall be punished by imprisonment in a | | | | signed by a magistrate and supported by probable |
| county jail not to exceed one year or in the state | | | | cause. The arrest must be made in a reasonable |
| prison." | | | | time, or else the warrant is considered "stale" and |
| Section (c) states, "Every person who, during the | | | | invalid. If a person is arrested in their home, the |
| commission of any offense described in | | | | law requires that police have a valid arrest |
| subdivision (a), removes or takes a firearm from | | | | warrant, unless there are "exigent circumstances," |
| the person of, or immediate presence of, a public | | | | meaning that there was an emergency. However, |
| officer or peace officer shall be punished by | | | | police officers can arrest without a warrant as |
| imprisonment in the state prison. | | | | well, so long as they have probable cause or good |
| Section (d) states, "Except as provided in | | | | reason to believe that the person arrested |
| subdivision (c) and notwithstanding subdivision (a) | | | | committed a felony. Thus, police officers may not |
| of Section 489, every person who removes or | | | | make an arrest where they cannot substantiate |
| takes without intent to permanently deprive, or | | | | good reasons and probable cause. In a jury trial, |
| who attempts to remove or take a firearm from | | | | the prosecution must proved beyond a |
| the person of, or immediate presence of, a public | | | | reasonable doubt that the arrest was lawful. It is |
| officer or peace officer, while the officer is | | | | up to the jury to determine the reasonableness |
| engaged in the performance of his or her lawful | | | | of the arrest. |
| duties, shall be punished by imprisonment in a | | | | A citizen's resistance to an invalid arrest is |
| county jail not to exceed one year or in the state | | | | considered self-defense. Thus, if the self-defense |
| prison. | | | | itself was reasonable, it is justified, and lawful. For |
| In order to prove a violation of this subdivision, | | | | example, if the person defended himself with his |
| the prosecution shall establish that the defendant | | | | hands only, when facing rough treatment by the |
| had the specific intent to remove or take the | | | | officer, this is reasonable. But it is unreasonable to |
| firearm by demonstrating that any of the | | | | use deadly force against such an officer. For |
| following direct, but ineffectual, acts occurred: | | | | example, using a rock or bottle to strike the |
| (1) The officer's holster strap was unfastened by | | | | officer would be an unlawful use of force, taking it |
| the defendant. | | | | out of the realm of self-defense. |
| (2) The firearm was partially removed from the | | | | |