2.8-8 Use of Physical Force by Private Person to Make an Arrest -- § 53a-22 (f)
Revised to December 1, 2007
Note: Section 53a-22 (f) provides that "a private person is not justified in using deadly physical force to make a civilian arrest except in self-defense or in defense of others as prescribed in § 53a-19."
The evidence in this case raises the issue that the defendant, as a private citizen, was justified in the use of physical force because (he/she) was effecting what is known as a civilian arrest. This defense applies to the charge[s] of <insert applicable crimes> [and the lesser included offense[s] of <insert lesser included offenses>.]
After you have considered all of the evidence in this case, if you find that the state has proved each element of <insert applicable crimes and any lesser included offenses>, you must go on to consider whether or not the defendant was justified in (his/her) use of force.
When, as in this case, evidence of justification is introduced at trial, the state must not only prove beyond a reasonable doubt all the elements of the crime charged to obtain a conviction, but must also disprove beyond a reasonable doubt that the defendant was justified in (his/her) use of force. If the state fails to disprove beyond a reasonable doubt that the defendant was not justified, you must find the defendant not guilty of <insert applicable crimes and any lesser included offenses> despite the fact that you have found the elements of (that crime / those crimes) proved beyond a reasonable doubt. The defendant has no burden of proof whatsoever with respect to (his/her) defense of justification.
The law allows a civilian arrest for any offense, whether it be a felony, misdemeanor, traffic violation or other infraction, but the private person making such an arrest is held to a very high standard of conduct. Unlike a peace officer, the civilian making an arrest may not claim justification merely because (he/she) believes that the arrested person committed an offense. Rather, regardless of the reasonableness of (his/her) belief, (his/her) right to make a civilian arrest is allowed only if the person actually committed an offense. A mistaken arrest, no matter how well-intentioned, is not justified under our law.
The statute defining this defense reads in pertinent part:
a private person acting on (his/her) own account is justified in using reasonable physical force upon another person when and to the extent that (he/she) reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of an arrested person whom (he/she) reasonably believes to have committed an offense and who in fact has committed such offense.
To convict the defendant of <insert applicable crimes>, the state must disprove beyond a reasonable doubt one of the following elements:
Element 1 - Another person
actually committed an offense
The first element is that the person who was arrested by the defendant actually committed an offense. It is not necessary that the defendant actually saw the offense being committed, but regardless of (his/her) belief, the privilege is lost if the person arrested did not actually commit an offense. "Offense'' means any crime or violation which constitutes a breach of any law and which is punishable by imprisonment, fine or both. The defendant claims that <insert name of person> committed <insert offense>.
Element 2 - Actual belief that
degree of force was necessary
The second element is that the defendant believed that the amount of force used to effect the arrest was reasonable and not excessive under the circumstances. A private person may never use deadly physical force to effect the arrest of one who has committed a crime.1
Element 3 - Reasonableness of
The third element is that the amount of force that the defendant believed was necessary to make the arrest was objectively reasonable. A reasonable degree of force is that degree of force that a reasonable person in the same circumstances viewed from the perspective of the defendant would use and no more. If the degree of force used is excessive or unreasonable in view of all the circumstances, the defendant is not entitled to this defense. Whether the defendant had the requisite belief and whether the defendant's belief was reasonable and whether the degree of force (he/she) used was reasonable are questions of fact for you to determine from the evidence in the case to apply.
You must remember that the defendant has no burden of proof whatsoever with respect to this defense. Instead, it is the state that must disprove beyond a reasonable doubt that the defendant was justified in using physical force if it is to prevail on its charge[s] of <insert applicable crimes>[, or of any of the lesser-included offenses on which you have been instructed]. The state need not disprove all of the elements of the defense. Instead, it can defeat the defense by disproving any one of the elements of the defense beyond a reasonable doubt to your unanimous satisfaction.
If you unanimously find that the state has not proved beyond a reasonable doubt all of the elements of <insert applicable crimes>, then you must find the defendant not guilty and not consider (his/her) defense.
If you unanimously find that all the elements of <insert applicable crimes and any lesser included offenses> have been proved beyond a reasonable doubt, you shall then consider the defense. If you unanimously find that the state has disproved beyond a reasonable doubt at least one of the elements of the defense, you must reject that defense and return a verdict of guilty.
If, on the other hand, you unanimously
find that the state has not disproved beyond a reasonable doubt at least one of
the elements of the defense, then on the strength of that defense alone you must
find the defendant not guilty of <insert applicable crimes> despite the fact that you have found the
elements of (that crime / those crimes) proven beyond a reasonable doubt.
1 The privileged use of deadly force to apprehend a suspected felon is codified at General Statutes § 53a-22 (c), and is not extended to the civilian arrest situation. See General Statutes §§ 53a-22 (f) and 53a-19 (b), which allow deadly force only by a peace officer or one acting at his direction. One attempting to make a civilian arrest must use only as much force as is reasonably necessary. See, e.g., State v. Ghiloni, 35 Conn. Sup. 570 (App. Sess. 1979).
See generally State v. Smith,
63 Conn. App. 228, 240, cert. denied, 258 Conn. 901 (2001), in which the Court
held that the defendant was entitled to an instruction on the defense of
justification on the theory that he was effecting a citizen's arrest.