Opinion
Rehearing Denied April 8, 1975.
Page 833
Epstein, Lozow & Preblud, P.C., Donald L. Lozow, Jon Lozow, Denver, for plaintiff-appellant.
Wesley H. Doan, Richard L. Dally, Bruno, Bruno & Bruno, Frank A. Bruno, Ashen & Fogel, Marshal A. Fogel, Max P. Zall, City Atty., Denver, for defendants-appellees.
COYTE, Judge.
Plaintiff filed suit alleging assault and bettery on him by four Denver police officers. Defendants in their answer generally denied the allegations of plaintiff's complaint and asserted self-defense as an affirmative defense. At the conclusion of the evidence, on motion, the court dismissed plaintiff's complaint as to L. D. Kane. This dismissal is not asserted as error. The jury, after being instructed on the issue of self-defense over plaintiff's objection, returned a verdict for the remaining defendants on which judgment was entered. On appeal, plaintiff contends that the evidence does not support the giving of the instruction on self-defense. We agree and reverse.
The evidence was in sharp conflict, but considering it in the light most favorable to the ruling of the court, there was no evidence introduced in this case which would support the giving of an instruction on self-defense.
Plaintiff's evidence was that he was in his son's apartment with a double barrel shotgun, but had laid it on the floor prior to defendants' breaking open the door. He testified that one of the defendants handcuffed him and thereafter hit him on the side of the head, and that defendants then continued to hit him as they pushed him out of the building. He further testified that he was thrown into a tree near the walk leading to the patrol car and then violently pushed into the police car. He also testified that he had been bleeding profusely about the head prior to his being pushed out of the apartment and continued to bleed all the way to the patrol car. He was taken directly to the hospital where he remained for several days. He did receive substantial injuries. His testimony is supported by that of other witnesses.
The police officers testified generally that, when they broke open the door, plaintiff had the shotgun leveled at them, and that after several commands to him to put the gun down, he did so. As he was rising up after putting the gun down, one of the officers jumped at plaintiff, grabbed him, and handcuffed him. The officers all testified that plaintiff was not injured in the apartment and that they never saw any blood on him until he pulled away from an officer and lunged into the tree. Thereafter, they saw a samll amount of blood on plaintiff.
For self-defense to apply, the force used by the officers must have been reasonable and applied at a time when the officers were in apprehension of severe bodily harm. Minowitz v. Failing, 109 Colo. 182, 123 P.2d 417; Colorado Jury Instructions 20:12. Logically, this could have occurred only at the time plaintiff still possessed or had access to the shotgun in the apartment. However, the parties all agree that plaintiff was not injured until after the police officers had handcuffed his wrists behind his back. Plaintiff alleges an assault caused the injuries, and defendants claim plaintiff must have been injured when he ran into a tree while handcuffed. Thus, under either version of the facts, the injury occurred at a time after the actions of the police officers could be justified by the doctrine of self-defense.
Under this state of the record, there is no evidence on which the affirmative defense of self-defense could be predicated, Hardy v. People, 133 Colo. 201, 292 P.2d 973, and it was error to give an instruction which created an issue of fact not supported by the evidence or which tended to mislead or divert the minds of the jury from the real factual issues of the case. Houser v. Eckhardt, 168 Colo. 226, 450 P.2d 664.
Judgment reversed and cause remanded for a new trial.
VAN CISE and STERNBERG, JJ., concur.