stop in the name of the law!


  • I am not an attorney. This is for informational purposes only and is
    arrested
    arrested (Photo credit: My Photo Journeys)

    NOT to be mistaken for legal or professional advise.

  • Any opinions I write here are my own and do not represent the views of any agency that employees me.
  • If you have any personal legal concerns, contact a qualified attorney. 
  • I’m from New York and am only familiar with NY Law. These writings are based on that experience. Other States have different laws but many similarities at the root.

The remainder of Article 35 is:

35.25 Justification; use of physical force to prevent or terminate larceny or criminal mischief. A person may use physical force, other than deadly physical force, upon another person when and to the extent that he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of larceny or of criminal mischief with respect to property other than premises.

This section covers the use of physical force (but not deadly physical force) to stop someone from stealing or damaging property. In typical “legal-eze” fashion, this was already covered “generally” back in 35.10, and in section 35.20 in regards to premises. This section spells out use of force to terminate larceny or criminal mischief “specifically”. You will note the “other than premises” part here. That is so this section doesn’t conflict with those other sections of law. Remember that section 35.20 authorizes the use of deadly physical force to stop arson of a dwelling or occupied building. You have to be careful that other sections of law don’t conflict.

This section is what is used frequently by store security and other security personnel to justify the use of force to apprehend/detain shoplifters, etc.

35.27 Justification; use of physical force in resisting arrest prohibited. A person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer or peace officer when it would reasonably appear that the latter is a police officer or peace officer.

If you know or should reasonably believe that a law enforcement officer is arresting you, you do not have legal authority to resist…even if you know you are innocent.

I know, this can sound unfair and there are many internet debates over if you should be allowed to fight a “rouge cop”. The fact of the matter is that cops have the authority to arrest on “probable cause”, not “proof beyond a reasonable doubt”. By and large most cops are arresting people because they have PC. Certainly some of those people may indeed be innocent. That’s why we have courts, a legal system and a burden of proof. The street is not the place to fight….court is.

35.30 Justification; use of physical force in making an arrest or in preventing an escape.

1. A police officer or a peace officer, in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he or she reasonably believes to have committed an offense, may use physical force when and to the extent he or she reasonably believes such to be necessary to effect the arrest, or to prevent the escape from custody, or in self-defense or to defend a third person from what he or she reasonably believes to be the use or imminent use of physical force; except that deadly physical force may be used for such purposes only when he or she reasonably believes that:

A police officer can use physical force, but not deadly physical force, to make an arrest or prevent escape from custody as long as that use of force is “reasonable”. Remember what was said about reasonableness in my previous post. The same standard applies to the Police. The use of force needs to be reasonable at the time it’s used and not necessarily proven correct down the road when facts not available at the time are discovered.

The Police are authorized to use deadly physical force under the same circumstances as everybody else as explained previously PLUS they have the legal authority to use deadly physical force to arrest or stop the escape of a person if the below factors are present:

(a) The offense committed by such person was:

(i) a felony or an attempt to commit a felony involving the use or attempted use or threatened imminent use of physical force against a person; or

(ii) kidnapping, arson, escape in the first degree, burglary in the first degree or any attempt to commit such a crime; or

(b) The offense committed or attempted by such person was a felony and that, in the course of resisting arrest therefor or attempting to escape from custody, such person is armed with a firearm or deadly weapon; or

(c) Regardless of the particular offense which is the subject of the arrest or attempted escape, the use of deadly physical force is necessary to defend the police officer or peace officer or another person from what the officer reasonably believes to be the use or imminent use of deadly physical force.

These conditions are specific to LE. Non-LE use of force in citizens arrest are covered further below.

2. The fact that a police officer or a peace officer is justified in using deadly physical force under circumstances prescribed in paragraphs (a) and (b) of subdivision one does not constitute justification for reckless conduct by such police officer or peace officer amounting to an offense against or with respect to innocent persons whom he or she is not seeking to arrest or retain in custody.

Just because the police are authorized to use deadly physical force as described above does NOT mean they have the right to be reckless and a danger to people he/she is not attempting to arrest. I cant spray a crowd with gunfire to hit an escaping murderer.

3. A person who has been directed by a police officer or a peace officer to assist such police officer or peace officer to effect an arrest or to prevent an escape from custody may use physical force, other than deadly physical force, when and to the extent that he or she reasonably believes such to be necessary to carry out such police officer’s or peace officer’s direction, unless he or she knows that the arrest or prospective arrest is not or was not authorized and may use deadly physical force under such circumstances when:

If a LEO tells/orders/asks you to help in an arrest you can use physical force (not deadly force) to help him. If you KNOW (not “think”, “believe”, etc..but KNOW) the arrest is not authorized you will not be covered.

Under these circumstances YOU can use deadly force to assist the police in an arrest if the below conditions are met.

(a) He or she reasonably believes such to be necessary for self-defense or to defend a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force; or

(b) He or she is directed or authorized by such police officer or peace officer to use deadly physical force unless he or she knows that the police officer or peace officer is not authorized to use deadly physical force under the circumstances.

4. A private person acting on his or her own account may use physical force, other than deadly physical force, upon another person when and to the extent that he or she reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he or she reasonably believes to have committed an offense and who in fact has committed such offense; and may use deadly physical force for such purpose when he or she reasonably believes such to be necessary to:

This covers “citizen arrests”. The section above is almost exactly like that for the Cop in NY Penal Law except for one very important part, The part that states AND WHO IN FACT COMMITTED SUCH OFFENSE.

Police can arrest on probable cause. That’s probably the most important power given them by law. You do not have that power. You have to “reasonably believe” that the person you are arresting did indeed break the law AND that the person IN FACT COMMITTED THE CRIME. If afterwords its discovered that the person didn’t commit the crime the Cop is covered as long as he had probable cause at the time. If you are assisting an officer at his command you are covered. If you use physical force in a citizens arrest and you were wrong……well….you see what this means right?

You are authorized to use deadly force in the course of a citizens arrest if the below conditions are met:

(a) Defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force; or

(b) Effect the arrest of a person who has committed murder, manslaughter in the first degree, robbery, forcible rape or forcible criminal sexual act and who is in immediate flight therefrom.

Notice that the list of crimes is very specific and doesn’t include many of the “fleeing felon” sections that the Police Officer specific section above had.

5. A guard, police officer or peace officer who is charged with the duty of guarding prisoners in a detention facility, as that term is defined in section 205.00, or while in transit to or from a detention facility, may use physical force when and to the extent that he or she reasonably believes such to be necessary to prevent the escape of a prisoner from a detention facility or from custody while in transit thereto or therefrom.

This last part is pretty easy to understand. Prison guards and cops transporting prisoners can use force to prevent escape.

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9 thoughts on “stop in the name of the law!”

  1. Hello. I just found your blog today. Nice work.
    I’m an active officer, in my 23rd year in NY. I am not a lawyer. I instruct in Art 35. I wanted to add a caveat regarding 35.30 1 a i;
    I believe an officer’s use of DPF against a person in this subsection would not be in compliance with Supreme Court decision Graham v. Connor. I.e. The use of DPF against a person who attempted to commit a felony in which physical force was threatened imminently, would not meet the objectively reasonable standard set forth in that decision.
    Regardless of the offense in this instance, the threat of PHYSICAL force cannot not be negated by DPF; (as terms are defined in the Penal Law).

    Departmental policies most likely address this imbalance.

    My two cents….

    What do you think?

    1. Well…I’m no Art 35 scholar, but from what I’ve seen, the relationship between that section and Graham V Connor isn’t exactly clear cut.

      While we (LEO’s in NY) probably all rely on DRBARKS/Mr&MS and BAKE within our policies to guide us in DPF decisions I’m not so sure that 35.30-1(a)(i) is entirely out of play as long as the decision to use DPF was “reasonable” at the time…which is all that GvC requires.

      And if you think about it, how many felonies involve the threat of PF that are not covered by all of those acronyms? A robbery can be pulled off with a threat of PF or DPF, same with kidnapping or rape.

      I think that when talking about Tennessee v Garner things change a bit, but now we are talking about terminating an escape vs stopping an event in progress..

      Take a look at this decision, especially the dissenting judges opinions. While It was a civil suit vs a penal law one, some of the things the judges say about Article 35 and this section are interesting.

      http://www.law.cornell.edu/nyctap/I93_0074.htm

      1. The majority’s philosophy in this decision is, more or less, why I’ve evolved to the notion set forth in my first post. You’re right, what the dissenting judges said is interesting; and they are aligned with the tenets set forth in Garner and Graham. Yet, they are dissenting judges; which is unfortunately a common occurrence. I’ve read Supreme Court decisions with a similar outcome; insomuch that the majority were out on a ledge and the dissenting judges were dialed in to the aforesaid tenets. With the myriad of decisions involving use of force over the past few decades, our jurisprudence has too often let law enforcement down.

        Use of force, regardless of offense, is based upon threat perception; weather it’s in defense of yourself or someone else.

        “Perception need not in fact exist; perception itself must be reasonable”. (People v. Goetz). I’m quoting that from memory; obtained originally from McKinney’s Law.

        A final thought; Art 35 should be “Garner-ized” and “Graham’d”. George Mullins did a indispensable service to NY police by giving us the anagrams of DRBARKS, MRMRS and BAKE. He worked with what the Penal Law gave him and it helped us tremendously to stay on track as that section goes. In my opinion Art 35 is too bogged down with specific offenses and it’s further complicated by the “do this only if that happens” or “you can’t do that, unless this happens”. I hope you get my drift.

        Thanks for the cathartic experience. It’s quite rare I get an opportunity to discuss this subject. (It’s not exactly everyone’s favorite. ;)

        Stay safe

      1. I read your knife article. I agree with your assessment of the application of the statute. I actually dealt with something like this quite recently. Subject arrested for UPM had an 8″ Kabar in a sheath in the trunk of vehicle. Subject is a former Marine (Had it while in service) and since it was not in an area reachable while driving and it was amongst other tools in a crate, we opted to not charge. But, I cautioned subject similarly to your last paragraph in that article.

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