Certainly, the use of excessive force will negate the privilege to commit a battery that accompanies a lawful arrest.
See Belcher, 511 F.Supp. at 484; Kedra v. City of Philadelphia, 454 F.Supp. 652, 672–73 (E.D.Pa.1978) (privilege to commit battery in the course of lawful arrest does not extend to the use of excessive force),
see also, Restatement (Second) of Torts §§ 132,
133 (1965). Edwards has cited no authority, however, and we have discovered none for the proposition that the burden to demonstrate that the force used was not excessive is properly allocated to the defendant. Indeed, the case law on point holds precisely the opposite. In
Wing v. Britton, 748 F.2d 494 (8th Cir.1984), for example, the Court of Appeals for the Eighth Circuit reviewed an appeal from a judgment that is closely analogous to the judgement appealed from in the present case. In
Wing, the appellant sued a municipality and one of its police officers under
§ 1983 and under the common law theory of battery, for injuries that the appellant received during his arrest by the officer. The appellant contended that the officer had used excessive force during the arrest and, therefore, that he was not immunized by privilege from liability for the battery that he had committed.
The district court rejected that theory and, in its instructions to the jury, placed the burden of proof of excessive force upon the appellant. The court of appeals affirmed.