## Facts

- Jack Woodrow Mulvihill, age 20, was observed on a Somerville street apparently pouring liquid from a bottle into a paper cup outside a pizzeria, implicating a local ordinance against public drinking.
- A uniformed Somerville police officer stopped and called Mulvihill and two others over; Mulvihill threw the cup onto the sidewalk and did not answer when asked what was in it.
- Viewing the evidence most favorably to Mulvihill, the officer grabbed him, demanded to smell his breath, shook him by the shoulders, and stated he should arrest him.
- Mulvihill tried to pull away; during the struggle both men fell and got up with the officer still holding him.
- The officer struck Mulvihill on the side of the head with his gun, lacerating his scalp; the men fell again.
- Mulvihill held the officer’s gun hand to keep the gun pointed away from him while the officer attempted to direct it toward him and threatened to shoot; the gun discharged without injury.
- Other officers arrived, subdued Mulvihill, and arrested him.
- Mulvihill was indicted under N.J.S.A. 2A:90-4 for assault and battery upon a uniformed police officer acting in the performance of duty.

## Issues

1. Whether a defendant charged with assault and battery upon a known police officer may assert self-defense when the officer allegedly used excessive or unnecessary force.
2. Whether the trial court erred by refusing to permit a self-defense theory and by declining to instruct the jury on self-defense.

## Decision

- The Supreme Court of New Jersey affirmed the Appellate Division’s reversal of the conviction and remanded for a new trial.
- The court held that self-defense is available when a police officer uses excessive force, even though a citizen generally may not use force to resist an arrest by a known officer.
- The court ruled that the evidence, viewed favorably to the defendant for purposes of determining entitlement to a charge, required submission of self-defense to the jury with proper instructions.

## Legal Principles

- A person may not use force to resist an arrest by a known police officer merely because the arrest is unlawful or improper.
- A person may use reasonable, proportionate force to protect against excessive or unnecessary force used by a police officer.
- When evidence supports a claim that an officer used excessive force and the defendant responded to prevent imminent harm, the reasonableness and necessity of the defendant’s conduct are factual questions for the jury.
- It is reversible error to withhold a self-defense instruction where a rational jury could find self-defense on the evidence.

## Conclusion

The court ordered a new trial because the jury should have been allowed to decide whether the officer used excessive force and whether Mulvihill’s responsive force was reasonable self-defense rather than an unlawful assault on a police officer.


State v. Mulvihill, 57 N.J. 151 (1970)