CO H:23 USE OF PHYSICAL FORCE IN MAKING AN ARREST OR IN PREVENTING AN ESCAPE (PRIVATE PERSON, ACTING ON HIS OR HER OWN)

CO H:23 USE OF PHYSICAL FORCE IN MAKING AN ARREST OR IN PREVENTING AN ESCAPE (PRIVATE PERSON, ACTING ON HIS OR HER OWN)

State: Please Select

Colorado Jury Instructions-Criminal (COLJI-Crim) (2016)

H:23 USE OF PHYSICAL FORCE IN MAKING AN ARREST OR IN PREVENTING AN ESCAPE (PRIVATE PERSON, ACTING ON HIS OR HER OWN)

The evidence presented in this case has raised the affirmative defense of “physical force in [making an arrest] [preventing an escape],” as a defense to [insert name(s) of offense(s)].

The defendant was legally authorized to use physical force upon another person if:

1. he [she] used reasonable and appropriate physical force upon another person when and to the extent that he [she] reasonably believed it was necessary:

[to make an arrest, for an offense that [had been] [was being] committed by the other person in the defendant’s presence.]

[to prevent the escape from custody of an arrested person whom the defendant had arrested for committing an offense in his [her] presence.]

The prosecution has the burden to prove, beyond a reasonable doubt, that the defendant’s conduct was not legally authorized by this defense. In order to meet this burden of proof, the prosecution must disprove, beyond a reasonable doubt, the above numbered condition.

After considering all the evidence, if you decide the prosecution has failed to meet this burden of proof, then the prosecution has failed to prove the defendant’s conduct was not legally authorized by this defense, which is an essential element of [insert name(s) of offense(s)]. In that event, you must return a verdict of not guilty of [that] [those] offense[s].

After considering all the evidence, if you decide the prosecution has met this burden of proof, then the prosecution has proved the defendant’s conduct was not legally authorized by this defense. In that event, your verdict[s] concerning the charge[s] of [insert name(s) of offense(s)] must depend upon your determination whether the prosecution has met its burden of proof with respect to the remaining elements of [that] [those] offense[s].

COMMENT

1. See § 18-1-707(7), C.R.S. 2016.

2. Section 16-3-201, C.R.S. 2016, provides that: “A person who is not a peace officer may arrest another person when any crime has been or is being committed by the arrested person in the presence of the person making the arrest.” A division of the Court of Appeals has held that this language limits the availability of the defense set forth in section 18-1-707(7):

[A]n arrest must first be authorized under § 16-3-201, before a private person can use physical force to effect it under § 18-1-707(7). Furthermore, when a person already under arrest has attempted an escape, the second clause of § 18-1-707(7) similarly permits a private person to use physical force but, again, only when the attempted escape is committed in his or her presence.
People v. Joyce, 68 P.3d 521, 524 (Colo. App. 2002).

3. See Instruction H:27.SP (special instruction: reasonable belief that a person has committed an offense).

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