this is four young black males were boys may have been attempting to break into a parked car two of the boys ran west on market and marvel went west and time to find them as officer squad car he looked down alleyway and eventually saw the two boys running down an alley marked marvel turned into the alleyway activated his lights and sirens and pursued the boys both of whom continued to run marvel was able to pull up beside one of the boys matthew in what marvel described as a very narrow alley and while the car was still moving marvel opened his car door and knocked matthew face first to the ground model then pulled his car around in front of the prostrate boy got out of his car and got on top of matthew to rest at that point while lying face down in the alleyway after being hit by a car matthew tried to get up marvel began subduing matthew by punching him between the shoulders an area commonly referred to as the spine but somehow the hit connected with the back of matthew's head thereby injuring marvel's finger matthew was subsequently charged and adjudicated delinquent of resisting arrest and causing injury to a police officer a class four felony this summary is based purely upon the testimony of officer marshall the questions before this court today are was officer marvel's use of force and reasonable and excessive and if this force was excessive in a reasonable was matthew's reaction to struggle after finding a police officer on top of him forcing him back to the ground after being knocked down by a moving car subjectively and objectively reasonable the answer to these questions is yes to determine if marvel's use of force was excessive we must assess how much force an officer may use and making an arrest a police officer making an arrest is justified in the use of any forest which he reasonably believes to be necessary to defend himself or another from bodily harm while making arrests the reasonable in his inquiry and an excessive force case is an objective one the question is whether the officer's actions are objective reasonable in light of the facts and circumstances confronting them without regard to their underlying intent or motivation relevant circumstances include the severity of the crime that issue whether the suspect poses an immediate threat spread to the safety of the officer or others and whether he is actively resisting arrest or attempting to evade arrest by flying an assessment of the force used by marvel necessarily looks at the events as one continuous act marvel in pursuit of two unarmed to boys who may have attempted to break into a car knocks down one of the boys with his moving squad car this first shocking action is in response to nothing more than the fact that the boys are running upon stopping his car in a blocking maneuver across the alley does marvel tell us that he checked on the physical condition of the prostrate boy no marvel puts himself on top of matthew trying to force matthew back to the ground as matthew attempts to get up then marvel tells us that matthew resisted being four spec down and in that struggle marvel punched nephew in the head so hard that marvel broke his finger marvel's actions were excessive and reasonable and triggered matthew's right to self in order to raise a claim of self defense a person must establish some evidence of each of the following elements what force is threatened against a person i think we can all agree that that occurred here to the person threatened is not the aggressor again i think we can all agree that matthew was not the aggressor three the danger of harm was imminent yes matthew had just been mowed down by a moving car and an adult had jumped onto his back for the threat and force was unlawful in this case certainly the force was unlawful five he actually in subjectively believed a danger existed which required the use of the force applied and his belief and six's his beliefs were objective we had a reasonable fourteen year old nephew is knocked down a moving squad car and then while still lying prostrate on the ground feels an adult police officer get on top of them and try to arrest him while he's trying to get up in the meantime marvel punches matthew in the head matthews  his use of force which was simply to try to get up in reaction to marvel's actions were both up to actively and subjectively reasonable after marvel's use of force was excessive and reasonable marvel at marvel was looking for a mean in these circumstances regardless you can find all of that you need to support a claim of self defense from officer marvel's testimony even assuming that you disregard  to and he says he's trying to get up to fleet will we that's partially speculation yes matthew was trying to get up matthew testifies that he was trying to get up but matthew says no he didn't flail struggled in this case where a fourteen year old child has just spent knocked down by a moving car and then is laying face person alley an adult jumps on its back to arrest him i was resisting because yes this is some way perhaps not articulately but i was resisting because the things he did to me were excessive but i was fearful that i was going to get hurt well i think with an adult swinging a car door opened knock a running child's face first to the alley but regardless the case why is that you you can find all of the evidence that you need to support self defense from just the state's evidence it's not necessary to use a defense testimony and in fact even where the defendant's testimony conflicts you could there's still you can still have self defense and in this case whether it's reasonable in part based on the facts that are available to them in their interaction with the defendant and in this case what we know is that there are some kids who may have been trying to break into a parked car and in fact they're never charged right not here i don't believe that what the officer did in the situation is just filed under and i i don't believe that an officer should ever be running down kids with a moving car i think that that is a reasonable and excessive force under any circumstance but certainly what the why does it matter where because the situation is even more extreme it's even more extreme because it's the possible it's a possible property i think that we can all assess officer marvel's credibility he he look his driving down market he looks down an alleyway he sees two boys running he has to presume we accelerate to catch up with them it's a very narrow alley way and he is planning on passing them and walk in the alleyway why would officer marvel who is presumably belted into the car be opening his car door as he comes up to this running away to knock  miles an hour driving a moving car and then opening your car door and hitting a running child to knock him down and alleyway is excessive i are the mother reports to the probation officer who was taking the social investigators report that when she was called to pick up her son at the bloomington raised partner she immediately took him to the hospital because his face was swollen and his ankle sprains i don't know why defense counsel didn't bring that out at trial but that is in the us i r so in line with that should the scorch feel that the claim of self defense is not properly before the scored you should consider it as an effective assistance of counsel where defense counsel in this case argued that both the initial act of knocking matthew to the ground with the moving car and the subsequent lo with deliberate acts of excessive force there was simply no reason for him not to argue self defense if this quest finds that counsels and effectiveness cannot be addressed on appeal fundamental fairness requires  she immediately took him to the emergency room due to a swollen face and a foot sprain is that alter council's perception you know of what you should do the only legal defense to the circumstances self defense because you're making an just pray to god that's also an adult male on top of a fourteen year old matthew is described as being five nine hundred forty five pounds it's not a particularly large hit this is an adult male police officer on top of his back after he's been knocked to the ground while you've been running so that's one thing right yes he was running down the alleyway and the officer was trying to get him to stop with a moving car while he was trying to think of the first place right well we don't even know if matthew was one of those boys i mean he was there was never an underlying charge again when you is to perceive illegally that is your job as an attorney and to say that matthew wasn't afraid after being knocked down by a car i mean this is a fourteen year old kid so we don't we for us to stand here and speculate w because even what he told you even what he told what even what he said at trial which is that i i raised my head and i tried to get up is part of what marvel said bartle testified to move far but again the case law is very clear that even when the defendant's test even when the defendant didn't i used the resisting you can still they're still you can still have a self defense instruction you can still claim self defense based purely on  if the defense attorney had said yes i'm arguing self defense and the trial court had said well i it is findings i will she actually i don't believe that evidence warranted self defense then yes we will be arguing abuse of discretion but there was there was enough evidence in this case to support it absolutely never had the burden of disproving it so therefore the defendant's claim of insufficient evidence to convict based on the state's failure to disprove the affirmative defense that was never raised at trial it's not well taken so for that reason the emitted from the defendants showing what was in their state of mind at the time that they committed force and upon which force and they were twenty two uses as self defense in other words in this case where there is nothing like that  i know that he denied flailing i'm not sure if you and minute that he used any force i'm not sure if he's said that he did say he tried to get up i don't know the an time and tempting to overtake the minor who is running away and be able to successfully question one foot the officer decided that he had to open the car door at the same time as he was slowing down and getting ready to stop the car so he can get out in pursuit and opening the car into her while attempting to get out of the car quickly that's how the the minor got hit and knocked down and if the officer claims it was accidental under the state's evidence upon which the defense wants to positioned in the roadway whether it was possible for him off their kit car around to either side of him but really that's what the aussie was attempting to do is to get in front of the car in front of main suspect so that when he opened the door it hit him the feared additional unlawful excessive use of force and that is why he did when he did without that testimony or any pretrial statements that would be in the state's case to that effect then there is no basis for self defense defense instruction and  like them or something to that effect because they in fact took the stand and testified in a different way this could the contrary self defense claim then it can't be blamed on the counsel's fault for failing to present itself in this case unless it were contained as a defense cla in this case entirely within the prosecution's case in which case an argument could have possibly been made that self defense elements from the defense could be raced only from what the prosecution put on but in this case  excessive force a million folks in arrested right of self defense that doesn't justify anything or everything that the respondent would do in response to excessive force so if the responding were stolen motivated by a desire to get up and leave because he doesn't lawful force and imminent means future he's not defending himself from what r t happened here as to who reasonably believes and objective and subjective reason to believe that additional unlawful force is coming and that's why he needs to do what he does in order to defend himself against that and really only contact that's alleged to be unlawful prior to the resisting arrest which is struggling course once he's punched and the officer breaks his hand he was already arrested re away was necessary to prevent an imminent threat of future force unlawful orders and so for those reasons the state's evidence did not support self defense claim and the state is not required to prove that beyond a reasonable doubt and even if this self defense claim was raised properly raised by the evidence the state just proved it beyond a reasonable doubt and this court would have to recruit review the evidence in the light most favorable to the prosecution so infer that responded was simply trying to flee to avoid apprehension he's not trying to protect himself from the threat of force because officer marvel testified in his heart we have to accept if it's reasonable the credibility of this claim that hit that the contact with the car door was accidental in nature the response resistance was practically up proximate cause of the injury because of his resistance are some marbles not able to go vocally target his punch that was trying to take the minor back down in order to secure the in some ways complicated by the fact that it's ok that's it it's part of what is so compelling about the case to me is also part of the problem which is that matthew has no remedy to address  hearing in effect of assistance of counsel we thought that was the best route that's that is what we're asking because fundamental fairness would require that matthew has no other remedy to address its constitutional claim unless the score would like to matthew does testify that he was face down he does say that he was a willing around but he also does state that he lifted his head and that marble pushed his head back down and that's when he was struck in the back of the head and presumably th the bottom line here is that these are fairly agree just facts in terms of what the police officer did and if only if you only look at officer marvel's testimony and you don't look at matthews there isn't enough for a self defense  and all the math you did was lay on even if you laid on the ground and flailed around and left it it's had he was not he he had a defense to this reasonable force now and he should not