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Criminal Jury Instructions

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2.8-6 Use of Physical Force by Peace Officer in Making Arrest or Preventing Escape -- § 53a-22 (c)

Revised to December 1, 2007

Note: This defense applies when a peace officer has been charged with an offense arising out of the alleged use of excessive force, and this instruction is written for that situation. The statute also comes into play when a defendant is charged with § 53a-167a (Interfering with an Officer) or § 53a-167c (Assault on Public Safety or Emergency Medical Personnel) in determining the scope of the officer's duties. See Interfering with an Officer, Instruction 4.3-1, and Assault of Public Safety or Emergency Medical Personnel, Instruction 4.3-3, in which portions of this instruction have been incorporated.

This statute also applies when a peace officer is claiming self-defense to charges arising out of an incident when the officer was attempting to make an arrest or prevent an escape. In that case, the self-defense instruction as written for § 53a-19 may be used, changing the "reasonable person" standard to the "reasonable peace officer" standard. See State v. Smith, 73 Conn. 173, 205 (2002). See Self-Defense and Defense of Others, Instruction 2.8-1.

The evidence in this case raises the defense that the defendant was justified in the use of physical force because (he/she) was (making an arrest / preventing an escape). 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 the defense of justification.

The law allows a peace officer to use force to (make an arrest / prevent an escape). Peace officers have a duty to prevent crimes and apprehend persons alleged or believed to have committed a crime. The exercise of this duty sometimes requires the use of physical force upon another person. The following rules govern whether the use of such force was justified, since the mere fact that a peace officer was involved does not excuse (him/her) from criminal responsibility. Peace officers for the purposes of this defense includes (police officers / correction officers / judicial marshals).

The statute defining this defense reads in pertinent part as follows:

a peace officer is justified in using physical force upon another person when and to the extent that (he/she) reasonably believes such to be necessary to (effect an arrest / prevent an escape from custody) of a person whom (he/she) reasonably believes to have committed an offense, unless (he/she) knows that the arrest or custody is unauthorized.

The term "offense" means any crime or violation which constitutes a breach of any law and which is punishable by imprisonment, fine or both. 

Deadly and non-deadly physical force
The first determination you must make is what degree of force the defendant used. The law distinguishes non-deadly physical force from deadly physical force. "Physical force" means actual physical force or violence or superior physical strength. The term "deadly physical force" is defined by statute as physical force which can reasonably be expected to cause death or serious physical injury. Under this definition, the physical force used by the defendant need not actually have caused a death or a serious physical injury in order to be considered deadly physical force, nor need it have been expected or intended by the defendant to result in such serious consequences. Instead, what determines whether the defendant used deadly physical force is whether the force actually used by the defendant could reasonably have been expected to cause death or serious physical injury. "Physical injury" is defined by statute as impairment of physical condition or pain, and "serious physical injury" is defined as physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.

It is up to you to determine whether the defendant used deadly physical force or non-deadly physical force against <insert name of the other person>. You are to make that determination after considering all the evidence. If the state claims that the defendant used deadly physical force, the state must prove that beyond a reasonable doubt. The first question you must resolve, then, is whether the level of force used by the defendant rises to the level of deadly physical force, or is some lower degree of physical force. 

Reasonable beliefs
Each of the reasonable belief requirements of the defense requires you to ask two questions. The first question you must ask is, simply, as a matter of fact, whether the defendant actually -- that is, honestly and sincerely -- entertained the belief in question when (he/she) acted as (he/she) did. The second question you must ask is whether the defendant's actual belief was reasonable, in the sense that a reasonable <insert type of officer> in the defendant's circumstances at the time of (his/her) actions, viewing those circumstances from the defendant's point of view, would have shared that belief. A <insert type of officer> cannot justifiably act on (his/her) actual belief, however honestly or sincerely (he/she) held it, if that belief would not have been shared by a reasonable <insert type of officer> in (his/her) circumstances, viewing those circumstances from the defendant's point of view.

To convict the defendant of <insert applicable crimes>, the state must disprove beyond a reasonable doubt one of the following elements: 

Element 1 - Actual belief that someone had committed an offense
The first element is that the defendant actually believed that <insert name of person> had committed an offense. If you have found that the force used by the defendant was deadly physical force, then this element requires that the defendant actually believed that the other person had committed or attempted to commit a felony that involved the infliction or threatened infliction of serious physical injury and, when feasible, (he/she) has given warning of (his/her) intent to use deadly physical force. A felony is an offense for which a person may be sentenced to a term of imprisonment in excess of one year.
 

Element 2 - Reasonableness of that belief
The second element is that the defendant's belief that <insert name of person> had committed an offense was reasonable. The officer need not have actual knowledge that an offense was committed, but only a reasonable belief. A reasonable belief that a person has committed an offense means a reasonable belief in facts or circumstances which if true would in law constitute an offense. If the reasonably believed facts or circumstances would not in law constitute an offense, for example, the peace officer was mistaken that the actions of the person constitute an offense, the peace officer would not be justified in the use of physical force to (make an arrest / prevent an escape from custody). Also, no matter how reasonable a peace officer's belief that an offense was committed, if (he/she) knows that an arrest is unauthorized, then no degree of force is justified.
 

Element 3 - Actual belief that degree of force was necessary
The third element is that when the defendant used physical force upon <insert name of person> for the purpose of (effectuating the arrest / preventing the escape), (he/she) actually -- that is, honestly and sincerely -- believed that the degree of force (he/she) used was necessary for that purpose.
 

Element 4 - Reasonableness of that belief
The fourth element is that the defendant's belief regarding the degree of force necessary was reasonable from the perspective of a reasonable <insert type of officer> in the defendant's circumstances. If you find that the defendant used deadly physical force, then (he/she) must have the reasonable belief that (he/she) could (effect the arrest / prevent escape) only by using deadly physical force; if lesser force was reasonable, then the use of deadly physical force would be unjustified.
 

Conclusion

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 four 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.

Commentary

"[T]he reasonableness of the defendant's belief under § 53a-22 should be evaluated pursuant to the subjective-objective formulation." State v. Smith, 73 Conn. 173, 185 (2002). "[T]he test for determining whether a police officer's use of deadly force was reasonable is to be judged according to the subjective-objective formulation used in evaluating self-defense claims under § 53a-19. With respect to the objective part of the test, however, the reasonableness is to be judged from the perspective of a reasonable police officer." Id., 205. See discussion in the Introduction to this section.

Connecticut has adopted the language of the rule announced in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), as well as the ALI Model Penal Code language, which restricts the use of deadly force by a police officer to a suspect who committed or attempted to commit a felony involving the infliction or threatened infliction of serious physical harm. This act concerning the use of deadly force changed the common-law rule that a peace officer may use deadly force in the arrest of any suspected felon, regardless of the seriousness of the felony or the perceived risk to the arresting officer. Martyn v. Donlin, 151 Conn. 402, 411 (1964). Garner notes that the common-law rule governing the use of deadly force has steadily dissipated and that many police departments restrict their use of deadly force more severely than necessary under the common-law rule.
 


 

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