Missouri Court of Appeals revives ‘old school’ self-defense law in resisting arrest case

Two Newton County sheriff deputies were dispatched to a trailer park north of Neosho to evict a man and his wife on Nov. 13, 2017.

According to the deputies, the man refused to leave, fought off the deputies and stole a patrol car that he would later crash in town.

The local prosecutor would go on to charge the man, Jason Hurst, with felonies of tampering with a motor vehicle and resisting arresting by fleeing and creating a substantial risk of injury to others.

Four years later, Hurst told a very different story during his trial. 

Hurst said he and his wife had been moving their things out of the trailer for about a week and were about to leave when sheriff deputies arrived. 

Without warning or reason, he said, the officers threw him to the ground and began macing, tasing and beating him. Hurst says the deputies then told him they were going after his wife, and when he heard her scream, that’s when he stole the police car he was locked in to distract them and save his wife from harm. 

A jury believed the police and sentenced him to five years in prison in December. 

But last month the Missouri Court of Appeals of Southern District said Hurst should get a new trial because the lower court should have given the jury instructions on whether his actions “justified as an emergency measure.” 

“[Hurst] correctly argues that he presented evidence at trial that, if believed, constituted substantial evidence that he was justified in defending himself and his wife against abuse by Newton County Sheriff’s deputies,” the court’s opinion states.

It’s still not clear whether Hurst will get a new trial. On Sept. 12, the appellate court denied the state’s motion to transfer the case to the Missouri Supreme Court, but the Missouri Attorney General’s Office can still ask the Supreme Court to review it. 

If Hurst does get a new trial and the jury is given the new instructions, some believe he would have a better chance at winning.

“If a judge is willing to give such an instruction, the likelihood of an acquittal is greatly increased,” said Nimrod Chapel, an attorney and president of the Missouri NAACP. “In some self-defense cases and the judges gave the instruction, litigants have been found not guilty.”

Chapel said he’s never seen this instruction given in a trial — which only applies to life-or-death emergency situations. 

Greg Mermelstein, deputy director and general counsel for Missouri’s public defender system, agrees that it’s rare that courts allow it — and even more so in resisting-arrest cases.

But he said the recent court opinion may show the courts are “waking up to the idea that there are two sides to every story.”

“Maybe the recent cases that have received national publicity have raised awareness,” Mermelstein said, “that sometimes there is a different version of events, and the jury ought to be able to hear that.”

Missouri’s ‘old school’ law

Not only is it rare, this defensive justification instruction in emergency situations is pretty “old school,” said Saint Louis University law professor Brendan Roediger.

“It’s a common-law defense,” he said. “It’s existed since before this country.”

However, Missouri has a statute that mirrors the common-law defense, he said. In the “old days,” the law in the majority of the United States was that you could defend yourself against an unlawful arrest, he said. 

“Certainly not advisable,” he said. “But just to sort of say that, there is a long tradition in the United States of these sorts of defenses being available, even when we’re talking about police.”

The Model Penal Code, the country’s criminal-law guidebook, gives examples of when this defensive instruction could be applied, including blasting down a building to prevent the spread of a major fire or breaking into an unoccupied house to make a telephone call to protect someone’s life. 

In weighing whether a self-defense instruction is included, it is completely focused on the defendant’s position, Roediger said.

And that’s where the circuit court went wrong, the Court of Appeals determined. 

“The circuit court is required to view the evidence ‘in the light most favorable to the defendant and ‘the theory propounded by the defendant,’” the opinion states.

Hurst’s story

In the opinion, the court summed up Hurst’s story.

When the deputies arrived at the trailer, Hurst said during his trial that the deputies asked what he was doing, and he told them: “What does it look like? I’m moving my stuff out.” 

They asked if he still had his dogs, and Hurst told them: “What does it look like?” because the dogs were barking at the window.

“Literally, that’s the only conversation that – I mean, a brief few seconds of conversation,” Hurst testified. 

Then “bam,” his face was on the ground and they allegedly had maced him while he was falling, he said. One of the officers allegedly placed a taser against his neck, he said, and the other officer had a taser on his right side. He started yelling for help, and his wife came out and yelled for officers to get off of him. 

According to Hurst, an officer replied to his wife, “Don’t worry, we’re coming for you next.”

So she ran across the street to her sister’s house. 

Hurst told them he couldn’t breathe, so they allegedly turned him over and sprayed mace directly down his throat. 

“At that point I felt like they were trying to kill me and I literally was on the verge of losing consciousness,” Hurst testified.

They continued to punch him as they put him in the patrol car, he said, and he heard the officers say they were “taking [him] to the creek” and going to get his wife. 

From the back of the patrol car, Hurst saw officers cross the road and try to get wife out of the car she was sitting in. Wanting to distract the officers to keep his wife safe, Hurst managed to pull his handcuffs around to the front of his body, unlock the window between the front and back seats of the police car, and climb into the driver’s seat.

He drove to town to get in view of security cameras, he said, and he got on the police radio and screamed for someone to help his wife. 

“I told them my name and social security number, hoping that maybe, at the very least, there’d be a record of it right then,” he testified.

He was eventually arrested after he flipped the car over.

The appellate court agreed with Hurst that his testimony constituted substantial evidence that he was faced with a clear and imminent danger when he heard the officers – who had already beaten him, tased him, and maced him – say they were going to ‘get’ his wife and heard her screaming for help.

Mermelstein emphasized this decision doesn’t mean the Court of Appeals wanted a jury to agree to those facts, just that they should have been given the opportunity to weigh the possibility that it was self defense.

Use-of-force cases

Mermelstein believes the instruction should be given more often, especially in light of the national movement for accountability in excessive use-of-force cases.

“The jury should be fully instructed on the law,” he said, “and be able to consider all the possibilities that may have occurred in a scenario when they consider whether or not to convict someone.”

In case law over the years, Roediger said appellate decisions have really “whittled away” any sort of defense against police officers. 

“The right has gotten smaller and smaller over time,” he said. “But that statute itself hasn’t changed.”

So it’s significant, he said, that the Court of Appeals is reviving the statute, and it could have profound impacts if applied in cases in areas like St. Louis – the epicenter of the civil rights movement over police accountability. 

“If this were the approach to the defensive justification in communities like St. Louis, where there is understandably deep distrust with law enforcement,” he said, “it would certainly make a difference.”