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Is kicking and screaming justified?

The question arises whether a suspect resisting arrest is justified in kicking and flailing their body in response to a "gang arrest." There is nothing unusual about police officers coming to the aid of their fellow officer when a suspect is resisting arrest and, should an officer be injured, the suspect could then be prosecuted for a violent felony assault. Such was the case in People v. Banyan, 2020 NY Slip Op 06060 (1st Dept. October 27, 2020) where the defendant, Jonathan Banyan, was actively resisting arrest (as demonstrated by video evidence) when eight officers subdued Banyan to gain compliance. While the eight officers were attempting to subdue Banyan he kicked his legs and flailed his arms and consequently an officer was injured. The Trial Court denied Banyan's application for a jury instruction allowing the jury to consider whether Banyan was justified in resisting what he deemed to be excessive police force. Viewing the evidence in the light most favorable to the defendant the 1st department reversed the trial court's ruling and ordered a new trial based upon the failure to give a jury instruction on justification pursuant to People v Vega, 155 AD3d 462 which held that there may be justification in resisting police force when that force is excessive.


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