Resisting Arrest
(N.J.S.A. 2C:3‑4) model jury charge
The State claims that the defendant illegally resisted an
arrest by a law enforcement officer. The
defendant, on the other hand, claims that he/she had the right to resist
due to the use of unlawful force by the arresting officer. In other words, what the State alleges as
illegal resistance the defendant maintains was justifiable self-defense. Always remember that the State must disprove
the claim of self-defense beyond a reasonable doubt.
A person may use force to protect himself/herself if four conditions
exist:
1. The person reasonably believes that he/she is protecting himself/herself against unlawful force.
2. The person reasonably believes that he/she has the right to use
force.
3. The person reasonably believes that the
use of force is immediately necessary.
4. The person reasonably believes that he/she is using the force to
protect himself/herself.
A person may not, however, resist any arrest he/she knows is being made by
an officer in the performance of the officer's duties, whether the arrest is
legal or illegal, unless that officer uses unlawful force. Your first task, therefore, is to determine
whether the officer used unlawful force to try to arrest the defendant.
Our statutes define unlawful force to be force used
against a person without the person's consent, in such a way as to be a civil
wrong or criminal offense. An officer
may use, to effect an arrest, the amount of force necessary to accomplish the
arrest. Therefore, you must determine
whether the officer used substantially more force than was necessary to effect
the arrest of the defendant. If you find
as a matter of fact that the officer used only the amount of force necessary to
effect the arrest, then you should reject the defendant's self-defense
claim. If you find, on the other hand,
that the officer did use excessive force then you must examine the other three
factors. Remember, they should all exist
if the defendant's claim of self-defense is to be accepted, so if the State
disproves even one, the claim fails.
You must examine the defendant's belief that he/she could use force to see
whether that belief was reasonable. In
other words, you must consider whether or not a person of ordinary prudence and
intelligence, in the circumstances of this defendant, would have concluded that
he/she had to use the force
that this defendant actually is charged with using. Only if you conclude that he/she did act reasonably is
the defense available to him/her.
If you find that the defendant reasonably believed he/she could use force, then
you must next consider whether it was reasonable for the defendant to believe
it immediately necessary to use that force.
You can use the same test for reasonableness that I just gave you. Again, only if you conclude that the
defendant needed to immediately use the force is the defense available to him/her. The intensity of
the force used by the defendant to repel what the defendant reasonably believes
to be unlawful force used by the officer must always be proportionate to the
type of force he/she is attempting to repel.
If you conclude that the defendant reasonably believed he/she could use force
immediately, and it was proportionate, you must then address the last concern:
was the force being used to protect the defendant against the unlawful
force. You must decide this question
using the evidence that has been presented to you. Only if you conclude that the defendant was
protecting himself/herself is the defense available to him/her.
As I said earlier, it is the State's burden to disprove
self-defense. Because a defendant can
claim self-defense only if all four of the criteria I previously described
exist, the defense is unavailable if the State disproves any of the elements
beyond a reasonable doubt. If the State
carries this burden, you should disallow the defense. If the State does not carry this burden, then
you must allow the claim and acquit the defendant.
[1]
Note: Some members of the Committee were
of the opinion that the jury should be charged on the limitation on the use of
force in law enforcement as set forth in N.J.S.A. 2C:3‑7(b)(1)(a) since
an element of N.J.S.A. 2C:12‑1(b)(5)(a) is an awareness of the attendant
circumstances that the complaining witness was a law enforcement officer acting
in the performance of his duties while in uniform or exhibiting evidence of his
authority. See State v. Moll, 206
N.J. Super 257, 260 (App.Div. 1986).
