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Criminal Jury Instructions

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2.8-9  Resisting Arrest by Physical Force -- § 53a-23

Revised to December 1, 2007

Note:  There is no instruction for this statute.  It is incorporated into other instructions when relevant.

Commentary

Section 53a-23 does not define a defense, but abrogates the common-law rule that allowed the use of force to resist an unlawful arrest.  State v. Concaugh, 170 Conn. 95, 99 (1976).  Prior to the statute, this rule was established in cases such as State v. Amara, 152 Conn. 296, 299 (1964); State v. Engle, 115 Conn. 638, 648 (1933); State v. Scheele, 57 Conn. 307, 320 (1889).  It should be noted, however, that a defendant may properly use force against a peace officer to resist excessive force during an arrest.  In re Adalberto S., 27 Conn. App. 49, 58, cert. denied, 222 Conn. 903 (1992). 

The effect of § 53a-23 is to require a person to submit to an arrest, even if he or she believes, and ultimately it is determined, that the arrest is illegal.  This provision must be charged in conjunction with the crimes of Interfering with an Officer (§ 53a-167a) or Assault on Public Safety or Emergency Medical Personnel (§ 53a-167c).  See Interfering with an Officer, Instruction 4.3-1, and Assault of Public Safety or Emergency Medical Personnel, Instruction 4.3-3.

Common-law privilege to resist an unlawful entry into one's home
In State v. Gallagher, 191 Conn. 433 (1983), the Court held that while General Statutes § 53a-23 abrogated the common-law privilege to resist arrest, there remains the common-law privilege to resist an unlawful entry into one's home.  "We will continue to adhere to the common-law view that there are circumstances where unlawful warrantless intrusion into the home creates a privilege to resist, and that punishment of such resistance is therefore improper."  Id., 442.  The common-law privilege to offer reasonable resistance is limited to conduct "not rising to the level of an assault."  Id., 443.  "[W]hether the defendant's conduct was an excusable response to an unlawful entry was a question for the jury."  Id., 445 (finding it error not to instruct the jury concerning the defense of reasonable resistance to an unlawful entry).

Subsequently, in State v. Brocuglio, 264 Conn. 778 (2003), the Court adopted the new crime exception to the exclusionary rule, holding that "the common-law privilege to challenge an unlawful entry into one's home still exists to the extent that a person's conduct does not rise to the level of a crime"  Id., 793-94.  The Court noted, however, that "[a]lthough our holding circumscribes the type of behavior in which one may engage . . . we conclude that it is unnecessary at this juncture to state precisely the scope and nature of permissible conduct."  Id., 794. n.13.
 


 

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