July 24, 1998 98-R-0922
FROM: Lawrence K. Furbish, Assistant Director
RE: Citizen's Arrest, Reasonable Belief Requirement, and Actual Guilt
You asked for information about the statutory requirement that a private person making an arrest or preventing an escape not only reasonably believe that the subject of his action has committed an offense, but that he in fact has done so.
The statute in question, CGS § 53a-22(f), requires both (1) that the person making the arrest reasonably believe that the subject has committed an offense and (2) that the person being arrested has in fact committed the offense. This provision has been part of the penal code since its enactment in 1969. We could find no legislative history or commentary on this provision. However, much of Connecticut's penal code was based on New York's, and an identical provision exists in New York's statutes (N.Y. Penal Law, § 35.30). The commentary on this statute and a related law concerning the authority of a citizen to make an arrest cites a New York Court of Appeals case as the source of the rule that if a private person makes an arrest and the arrested person turns out not to have committed the offense, the person making the arrest is subject to a lawsuit.
According to Am Jur, a distinction exists between the authority to make arrests for offenses committed in a person's presence and those not committed in his presence. Only in the latter case, must the arresting person have reasonable grounds to believe that the arrested person has committed the crime, and he (the arrested person) must have, in fact, committed it. Apparently a few states have by statute altered this common law rule to legitimize an arrest where the person making it only has a reasonable belief that the person committed the crime.
CGA § 53a-22 concerns the use of physical force in making an arrest or preventing an escape. Subsection (f) states that a private person is justified in using reasonable physical force upon someone if "he reasonably believes such to be necessary to effect an arrest or to prevent an escape from custody of an arrested person whom he reasonably believes to have committed an offense and who in fact has committed such offense" (emphasis added). This provision was adopted in PA 828 1969 Session, when the General Assembly adopted a penal code. None of the commentary attached to the code at that time discusses this provision, and it has not been amended or construed by the courts since its adoption.
At common law in Connecticut a private citizen has had the right to arrest someone in certain circumstances. In 1795 the Supreme Court ruled that the owner of stolen goods "may pursue and take the goods and the thief; and so may any other person with the authority of the owner; or even without, and tender the thief to justice, and he will be excusable provided the person is found guilty" (emphasis added) (2 Root 171). Subsequent reported Connecticut cases have upheld the right of citizens to arrest in cases where the offense occurred in their presence, but they have not dealt with cases where there was an issue about whether the accused had in fact committed the crime.
NEW YORK LAW
New York also has a statute on the use of physical force in making an arrest or preventing an escape (N.Y. Penal Law § 35.30). It authorizes a private person to use physical, but not deadly, force to effect an arrest or prevent an escape of someone "he reasonably believes to have committed an offense and who in fact has committed such offense." Another statute governs the authority of a private person to make an arrest (N.Y. Crim. Proc. Law § 140.30). It authorizes a private person to make an arrest for a felony when the person "has in fact committed such felony" and for any other offense when the person "has in fact committed such offense in his presence."
The commentary on these two statutes relates the rule to civil liability for false arrest and cites a New York case with a rather complex procedural history (Morrello v. Saratoga Harness racing, Inc., 427 N.Y.S. 2d 534 (1980), reversed based on the dissent Ct. App. 439 N.Y.S. 2d 359 (1981)).
The case involved a licensed owner, trainer, and driver of trotting and pacing horses who stabled two horses at the Saratoga track, paying a daily rental fee. He was told by the track management to remove his horses but was not informed why. His lawyer told him that the track would have to use a civil eviction procedure and that he could go to the track to care for his horses. Management again told him to leave and when he refused had him arrested for criminal trespass. The majority ruled that the evidence at trial established that the trainer was committing a crime at the time of his arrest. Presiding justice Greenblott, dissenting, concluded that he was not committing a crime because he honestly believed he was licensed and privileged to be at the track. Greenblott quotes an earlier case (Jacques v. Sears, 30 N.Y.2d 466) to the effect that a private arrest is invalid unless the person arrested in fact committed the crime for which the arrest was made. He goes on to say "a private citizen who makes an arrest does so at his peril, and if the person arrested did not in fact commit the crime for which he is arrested, the person who arrests him is liable even if he acts in good faith or has probable cause to make the arrest (Morrello p. 537). The Court of Appeals reversed the majority decision in Morrello "for reasons stated in the dissenting memorandum by former Justice Louis M. Greenblott" (Morrello, Ct. App. 439 N.Y.S.2d, 359).
According to Am Jur the authority of a private person to make an arrest without a warrant is more limited than that of a police officer (5 Am Jur 2d, Arrest, § 56). Under common law a private person may arrest without a warrant for a felony or breach of the peace committed in his presence. But “it appears that a private person may not arrest for a misdemeanor on suspicion, regardless of how well founded it may be" (5 Am Jur 2d Arrest § 57).
According to Am Jur the common law rule for offenses not committed in the person's presence is that the person may arrest "if the felony has actually been committed and he has reasonable grounds for believing that the person arrested was the one who committed it" (5 Am Jur 2d, Arrest § 58).