Excessive force is still the standard for self-defense in an APO case

The standard for asserting self-defense in an assault case involving a police officer is still whether or not the police officer used excessive force during the arrest.  This is the holding from the first case to interpret the new statute on assaulting a police officer (APO):  Coleman v. United States, 194 A.3d 915 (D.C. 2018).

With the enactment of the Neighborhood Engagement Achieves Results (NEAR) Act in 2016, the D.C. Council made a number of changes to the APO statute.  For one thing, it pulled out the resisting arrest language and made that a separate statute.  For another, it increased the maximum penalty for APO from 180 days to 6 months.  Although this does not sound like much of a change (it increased the maximum sentence by only a couple of days), this was the difference between a bench trial and a jury trial:  Defendants charged with APO could now exercise their constitutional right to a trial by jury. 

The government prefers bench trials.  They are quicker and more predictable.  As a result, the government has been charging cases involving assault and a police officer as simple assault, not APO.  

Defense lawyers had been arguing that the government should not be able to have it both ways.  That is, the government should not be able to charge simple assault, thereby depriving the defendant of a jury, while still enjoying the special protections for police officers offered by the APO statute.  A defendant charged with simple assault in a case involving a police officer should be able to argue traditional self-defense (namely, that the defendant reasonably feared imminent bodily harm) as though the complainant was a civilian, not a police officer.  This is different from the limited right to self-defense that is available in APO cases that requires the defendant to prove that police used excessive force.  

Not so, said the D.C. Court of Appeals in Coleman: “Neither the plain language of the Act nor the legislative history captured in the NEAR REPORT, discuss limiting the charging decisions of the government, or expanding the scope of a self-defense claim when a police officer is involved.  This court has long recognized that there is a limited right of self-defense when a citizen is engaged with a police officer and neither the facts of this case, nor the legislative history of the NEAR Act, support reconsideration of those standards.” A contrary decision, the Court held, would place police officers at greater risk “each time they approach a suspect” and impede their ability to make an arrest: “Because no one has a right to resist an arrest, regardless of that arrest’s lawfulness . . . , one who assaults a police officer is in a fundamentally different position than one who assaults a non-police officer.”