There has been much focus as of late, on the use of physical force by the police on private citizens. There have been several recent well publicized incidents of alleged police misconduct which have reminded citizens of the true nature of the relationship between citizens and law enforcement. I’m no cop hater, believe me. We need police. If we didn’t have them, living in society would be a violent and dangerous affair, to be sure. But the reality is, in encounters with citizens it is the police that have the exclusive right to use physical force. Test that theory, and you will likely be charged with Resisting Arrest under 2C:29-2, Obstruction of Justice (which in New Jersey, is actually called Obstructing the Administration of Law) under 2C:29-1, Hindering Apprehension under 2C:29-3, or any combination of the three. Depending on the the specific facts of a case, it is not uncommon to see defendants simultaneously charged with Aggravated Assault (on a police officer) under 2C:12-1(b)(5)(a), and Disorderly Conduct under 2C:33-2. In New Jersey, a person being placed under arrest does not have the right to resist, even if the arrest is unlawful. Good faith mistakes happen, and justifying physical resistance under those circumstances creates an unnecessary risk of serious bodily injury to both parties. The really interesting legal quandary occurs when an individual physically resists arrest, where the actions of the police are not only unlawful, but also aggressive and dangerous. More specifically, I want to examine the situation where the police use force which exceeds the proper scope of their authority, and are themselves breaking the law.
It was the punch seen ’round the world. It was tough to watch, and I’m saying that as a veteran criminal defense attorney who’s seen it all. I’m referring to Ray Rice, and the one punch knock-out blow that floored his then fiancée, Janay Palmer (now, Janay Rice) in the elevator of the Revel casino in Atlantic City, New Jersey. There has been much conjecture about the propriety of his NFL suspension, and about the man who made that decision, NFL Commissioner Rodger Goodell. So too there has been much discussion about the criminal assault prosecution, and the manner in which it was pursued by the Atlantic County Prosecutor’s Office, and Prosecutor James’s P. McClain. Some people feel the prosecution was heavy-handed, and that Ray Rice was only charged with Aggravated Assault because it was a high-profile case, and the prosecutor’s office didn’t want to appear weak on domestic assault. Some people feel he got a slap on the wrist because he was a high-profile NFL player, and former Rutgers University standout. The reality is that without a cooperating witness, even though the act was captured on video, a case like this can be difficult to prosecute. An uncooperative victim/witness is common in domestic assault cases, and why the decisions made by the prosecutor’s office were extremely pragmatic.