MO 406.16 JUSTIFICATION: USE OF FORCE BY PRIVATE PERSON IN MAKING ARREST

MO 406.16 JUSTIFICATION: USE OF FORCE BY PRIVATE PERSON IN MAKING ARREST

State: Missouri

Missouri Approved Instructions–Criminal (MAI-CR) 4th

406.16 JUSTIFICATION: USE OF FORCE BY PRIVATE PERSON IN MAKING ARREST

PART A – GENERAL INSTRUCTIONS

One of the issues (as to Count _____) (in this case) is whether the use of force by the defendant against [name of victim] was the lawful use of force by a private person in making an arrest (or preventing an escape). In this state, the use of force (including the use of deadly force) by a private person in making an arrest (or in preventing an escape) is lawful in certain situations.

[Use the material in [1] in ALL cases. Omit brackets and number.]

[1] A private person in making an arrest (or preventing an escape) can lawfully use force if he reasonably believes the person being arrested has committed an offense and if, in fact, that person has committed such offense.

In such a situation, a person is entitled to use only such force as is immediately necessary to effect the arrest or prevent the escape.

[Use the material in [2] ONLY if there is evidence the defendant used deadly force. Omit brackets and number.]

[2] But in making an arrest or preventing escape a private person is not entitled to use deadly force, that is, force which he knows will create a substantial risk of causing death or serious physical injury, unless he is arresting a person who, at that time and in his presence,

[Insert one or both of the following as appropriate. Omit brackets and letters.]

[A] (has committed) (or) (is attempting to commit) (murder) (or) (a class A felony such as [name of class A felony]) (or)

[B] is attempting to escape by the use of a deadly weapon.

And, even then, a private person may use deadly force only if he reasonably believes the use of such force is immediately necessary to effect the arrest or prevent the escape.

[Use the material in [3] in ALL cases. Omit brackets and number.]

[3] As used in this instruction, the term “reasonable belief” means a belief based on reasonable grounds, that is, grounds which could lead a reasonable person in the same situation to the same belief.

PART B – SPECIFIC INSTRUCTIONS

On the issue of use of force by a private person in making an arrest (as to Count _____) (in this case), you are instructed as follows:

[1] [Insert either [A], [B], [C], or [D] as appropriate. Omit brackets and material within the brackets.]

[A] [Use the following when there is no evidence as to the use of deadly force.]

If the defendant reasonably believed [name of victim] had committed the offense of (attempt to commit) [name of offense], and if, in fact, [name of victim] had committed that offense, and the defendant used only such force as was immediately necessary to effect the arrest (or to prevent the escape) of [name of victim], then his use of force was lawful.

[B] [Use the following when the evidence is clear that deadly force was used by the defendant and there is no dispute as to that issue.]

[Insert one or both of the following. Omit brackets and numbers.]

[i] If the defendant reasonably believed that [name of victim] had committed the offense of (attempt to commit) [name of offense] and if [name of victim] had committed that offense and at that time and in the defendant’s presence was attempting to escape by use of a deadly weapon, (or)

[ii] (If) (if) the defendant reasonably believed that [name of victim] (had committed) (was committing) the offense of (attempt to commit) (murder) ([name of class A felony]) and if [name of victim] committed that offense at that time in the defendant’s presence, and if defendant also reasonably believed the use of deadly force was immediately necessary to effect the arrest of [name of victim], then his use of force was lawful.

[C] [Use the following when there is some evidence that the defendant used deadly force and it is an issue in the case whether the defendant used deadly force but there is no evidence supporting the lawful use of deadly force.]

If the defendant reasonably believed [name of victim] had committed the offense of (attempt to commit) [name of offense], and if, in fact, [name of victim] had committed that offense, and the defendant used only such non-deadly force as was immediately necessary to effect the arrest (or to prevent the escape) of [name of victim], then his use of force was lawful.

[D] [Use the following when there is some evidence that the defendant used deadly force and it is an issue in the case whether the defendant used deadly force, and there is also evidence supporting the lawful use of deadly force.]

If the defendant reasonably believed [name of victim] had committed the offense of (attempt to commit) [name of offense], and if, in fact, [name of victim] had committed that offense, and the defendant used only such non-deadly force as was immediately necessary to effect the arrest (or to prevent the escape) of [name of victim], then his use of force was lawful, or

[Insert one or both of the following. Omit brackets and numbers.]

[i] if the defendant reasonably believed that [name of victim] had committed the offense of (attempt to commit) [name of offense] and if [name of victim] had committed that offense and at that time and in the defendant’s presence was attempting to escape by use of a deadly weapon, (or)

[ii] if the defendant reasonably believed that [name of victim] (had committed) (was committing) the offense of (attempt to commit) (murder) ([name of class A felony]) and if [name of victim] committed that offense at that time in the defendant’s presence, and if defendant also reasonably believed the use of deadly force was immediately necessary to effect the arrest of [name of victim], then his use of deadly force was lawful.


[2] [This paragraph must be used in ALL cases.]

The state has the burden of proving beyond a reasonable doubt that the defendant was not entitled to use force as a private person making an arrest (or in preventing an escape). Unless you find beyond a reasonable doubt that the defendant was not entitled to use force as a private person against [name of victim], you must find the defendant not guilty (under Count _____).

[3] [If the term “serious physical injury” is used in this instruction, then the following paragraph defining that term must be used.]

As used in this instruction, the term “serious physical injury” means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.

 

(v. 7-1-17)

By | 2018-05-01T07:02:08+00:00 April 30th, 2018|Comments Off on MO 406.16 JUSTIFICATION: USE OF FORCE BY PRIVATE PERSON IN MAKING ARREST