For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Francis, J.
Defendant Mulvihill was charged by indictment with violating N.J.S.A. 2A:90-4 in that he allegedly committed an assault and battery upon a Somerville policeman who was in uniform and acting in the performance of his duty at the time. He was convicted at a jury trial in which the court refused to allow him to defend by asserting self-defense and declined to submit that issue to the jury for determination. On appeal, the conviction was reversed and a new trial ordered. State v. Mulvihill, 105 N.J. Super. 458 (App. Div. 1969). This Court granted the State's petition for certification. 54 N.J. 560 (1969).
The testimony reveals that Officer Dowling was operating a patrol car along a public street in Somerville, N.J. While doing so, he observed the defendant Mulvihill, a 20-year-old youth, and two other persons standing in front of a pizzeria. He noticed Mulvihill pouring something from a bottle into a paper cup held by one of the other two persons. Since there was a local ordinance prohibiting the drinking of alcoholic beverages on a public street, the officer stopped the car, got out and called to the young men to come over to him. As they did so, Mulvihill threw the paper cup on the sidewalk. Dowling asked him what was in the cup and defendant did not answer.
The testimony as to the events which immediately followed is in conflict. However, for the purpose of determining whether the legal issue of self-defense was available for jury consideration, it is necessary to consider the facts in the light most favorable to the defendant. According to Mulvihill, when he failed to disclose what he had been drinking the officer grabbed him and asked to smell his breath. He held his breath and remained silent, whereupon Dowling shook him "back and forth" by the shoulders and said "I
should arrest you, you punk." Mulvihill tried to pull away and Dowling "jerked him back around" with the result that both men fell. They arose with Dowling still holding him. When he tried to pull free, Dowling struck defendant on the side of the head with his gun lacerating his scalp. Mulvihill then fell toward Dowling and they both went down again. The officer's right hand was being held by Mulvihill who was trying to keep the gun pointing away from himself, while the officer was endeavoring to direct it at him and saying "Stop or I'll shoot." Mulvihill testified that at this time he was trying to avoid being shot. Then the gun went off, harmlessly, and with his right hand Mulvihill punched the officer in the left side of the face. It was for this blow that he was indicted. In the meantime, other officers appeared and defendant was immobilized.
On the assumption as a matter of law that Mulvihill had been arrested before he struck the allegedly criminal blow, the trial court informed defense counsel that no discussion of or reliance upon self-defense would be permitted in summation, nor would that issue be submitted in the charge for consideration by the jury. The action was taken because the court believed (as did the trial court in State v. Washington, 57 N.J. 160 (1970), decided today) it was required by State v. Koonce, 89 N.J. Super. 169 (App. Div. 1965). That belief, of course, was incorrect.
Koonce held that "a private citizen may not use force to resist arrest by one he knows or has good reason to believe is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances obtaining." 89 N.J. Super. at 184. The opinion put to rest the notion that the common law rule existing in some jurisdictions, which permits a citizen to resist, even with reasonable force, an unlawful arrest by a police officer, was applicable in New Jersey. Instead, the Appellate Division adopted the above quoted contrary doctrine, and we think rightly so. Accordingly, in our State when an officer makes an arrest, legal or illegal, it is the duty of
the citizen to submit and, in the event the seizure is illegal, to seek recourse in the courts for the invasion of his right of freedom.
However, as the Appellate Division said in reversing the conviction here, it went no further in Koonce than to hold that the citizen must submit peaceably to an apparently authorized arrest or other apparently lawful restraint by a police officer, even if it later proves to have been illegal. If the citizen resists the arrest, the officer is not only justified in but has the duty of employing such force as is reasonably necessary to overcome the resistance and accomplish the arrest. Fisher, Laws of Arrest, § 133, p 295 (1967); and cf. State v. Smith, 127 Iowa 534, 103 N.W. 944, 945-946 (1905). But, as the Appellate Division noted, that principle is not dispositive in all cases of an arrestee's right to claim self-defense to a charge of assault and battery on the officer. If, in effectuating the arrest or the temporary detention, the officer employs excessive and unnecessary force, the citizen may respond or counter with the use of reasonable force to protect himself, and if in so doing the officer is injured no criminal offense has been committed. 105 N.J. Super. at 462; and see State v. Montague, 55 N.J. 387, 404 (1970); State v. Williams 29 N.J. 27, 39 (1959); Bullock v. State, 65 N.J.L. 557 (E. & A. 1900); People v. Soto, 80 Cal. Rptr. 627, 630 (Ct. App. 1969); People v. Curtis, 70 Cal. 2d 347, 74 Cal. Rptr. 713, 450 P. 2d 33 (1969); Mullis v. State, 196 Ga. 569, 27 S.E. 2d 91 (1943); 5 Am. Jur. 2d, Arrest, § 94, p. 779 (1962); Fisher, Laws of Arrest, supra, §§ 133, 138.
There is sound reason for a difference in the rights and duties of the citizen in the two situations. Despite his duty to submit quietly without physical resistance to an arrest made by an officer acting in the course of his duty, even though the arrest is illegal, his right to freedom from unreasonable seizure and confinement can be protected, restored and vindicated through ...