Comment

As a general rule, force used to resist an arrest or search being made by a peace officer is not justified despite general self-defense rules. Tex. Penal Code § 9.31(b)(2). There is an exception to this general rule, however, if the officer uses greater force than necessary. Tex. Penal Code § 9.31(c). Explaining this exception to self-defense, and the statutory exception to the exception, in terms that make clear the burden of proof is difficult.

Need for Instruction. If the situation raises self-defense and the state relies on the “peace officer” exception, the state must prove that the exception of unnecessary force does not apply.

If the defendant seeks an instruction on self-defense and the evidence would require the jury to find, beyond a reasonable doubt, that the peace officer exception applies, no instruction on self-defense should be given.

If the evidence would permit—but does not require—the jury to find that the exception applies, a self-defense instruction should be given. This should require the state to prove either that self-defense generally does not apply or that the peace officer exception does apply.

Culpable Mental State. Self-defense is unavailable only if the defendant was aware of certain facts. According to the explicit terms of Texas Penal Code section 9.31(b)(2), self-defense becomes unavailable only if the defendant was aware that the person against whom he used force was a peace officer (or a person acting in a peace officer’s presence and at the officer’s direction). The statute leaves less clear whether in order to render the defense unavailable the state must prove the defendant knew the peace officer was making an arrest or search.

The Committee concluded that to render self-defense unavailable, the state must show that the defendant knew that the person was a peace officer but need not show that the defendant knew an arrest or search was being made. Thus, the instruction at CPJC 9.30 should be used if there is no allegation of excessive force. The instruction at CPJC 9.31 should be used if there is an allegation of excessive force.

Section 9.31(c) Exception to Section 9.31(b)(2) Exception. Two provisions of Texas Penal Code section 9.31 may apply to situations in which there is evidence that the victim was a law enforcement officer: section 9.31(b)(2) (rendering self-defense unavailable in certain situations in which the defendant acted to resist an arrest or search) and section 9.31(c) (purporting to make force “to resist an arrest or search” justifiable in certain situations, apparently as an exception to the general rule set out in section 9.31(b)(2)).

Generally, at least, there will be no occasion to instruct a jury on section 9.31(c) unless the jury is instructed on section 9.31(b)(2). The question, then, is how to supplement or modify a section 9.31(b)(2) instruction when there is a need to also instruct the jury on section 9.31(c).

Both provisions purport to define when force is or is not justified “to resist an arrest or search.” That is at best misleading and probably incorrect. Section 9.31(c)(2) limits the justification to that use of force the defendant reasonably believes is necessary to defend himself against the officer’s excessive force. Carefully read, it does not address whether force to resist the arrest or search is justified. If section 9.31(c) applies, the defendant is not using the force to resist the arrest or search but rather to resist the excessive force being used.

It might turn out that a defendant has the right to use force to resist an arrest or search under section 9.31(c). But if this is so, it is only because under the facts of the case the defendant reasonably believes that resisting the arrest or search is necessary to prevent the excessive force.

If the situation raises self-defense and the peace officer exception but the defendant relies on the provision for resisting excessive force, the state appears to have the burden of proof. A defendant is entitled to an instruction informing the jury of this additional provision and the state’s burden of proving it inapplicable if the defendant identifies evidence from which a reasonable jury could find that the state failed to prove the provision inapplicable.