People v. Cherry
121 N.E. 2d 238, 307 N.Y. 308 (1954)
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Rule of Law:
A person has the right to use effective, reasonable force to resist an unlawful arrest, and the reasonableness of that force is judged based on the physical necessities of the situation at that moment, not with calm hindsight.
Facts:
- The defendant, a plumber named Cherry, was walking near his home late at night.
- Two police officers, not in uniform, who had been observing Cherry, accosted him.
- Cherry, believing he was being accosted by criminals, attempted to get away from the two men.
- One of the officers lunged from behind and grabbed Cherry around the shoulders to restrain him.
- In the ensuing struggle, Cherry, who had no weapon, grabbed his assailant's wrist and bit his thumb.
Procedural Posture:
- The defendant, Cherry, was tried for third-degree assault in the Court of Special Sessions of the City of New York, a trial court.
- The trial court, consisting of a panel of three justices, found the defendant guilty.
- The defendant appealed his conviction to the Appellate Division of the Supreme Court, Second Department, an intermediate appellate court.
- The Appellate Division initially affirmed the conviction without opinion.
- The Appellate Division then granted a reargument, after which it again affirmed the conviction but issued a memorandum opinion.
- The defendant appealed to the Court of Appeals of New York, the state's highest court.
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Issue:
Was the force used by a person to resist an unlawful arrest reasonable when they bit the thumb of a plainclothes police officer who physically seized them on a deserted street at night?
Opinions:
Majority - Fuld, J.
Yes, the force was reasonable. A person who is the victim of an illegal arrest is privileged to use force to resist, provided the force is not more than sufficient to prevent the offense against his person. The officers here were guilty of an illegal arrest and an unlawful assault. The defendant was faced with a frightening situation, accosted by two men in street clothes on a deserted street at night. He reacted as a reasonable person might under the circumstances by using the only weapons available to him: his hands and teeth. Because his resistance was not even successful in preventing the arrest, it cannot be deemed excessive. The right to resist an unlawful arrest must be effective, not merely a futile gesture, and whether the officers showed a badge is irrelevant, as a badge cannot substitute for a lawful warrant.
Dissenting - Desmond, J.
No, the force was not reasonable. While the arrest may have been illegal, the question of whether the defendant used more force than was sufficient is a question of fact that was decided against him by the trial court and affirmed by the appellate court. The lower courts, which are authorized to make factual findings, concluded that the defendant knew the men were police officers and that his violent conduct in biting the officer was unnecessary. The legal standard of 'not more than sufficient' force must be applied reasonably, and a person is not justified in committing mayhem to resist a detention, especially when they have no reason to fear bodily harm from individuals they know to be officers. The court is bound by the lower courts' factual finding that the force was excessive.
Analysis:
This decision strongly affirms the common law right to resist an unlawful arrest with effective physical force. It establishes that the reasonableness of force must be judged from the perspective of the individual in the frightening circumstances of the moment, not through detached hindsight. The ruling serves as a check on police power, underscoring that when officers act outside the law, they are not shielded from physical resistance. This precedent requires courts in future cases to consider whether the force used was a practical attempt to prevent the illegal arrest, rather than an act of revenge or needless violence.
