Copyright 1965, American Law Institute
RULES AND PRINCIPLES
Division One - Intentional Harms to Persons, Land, and Chattels
Chapter 5 - Arrest and Prevention of Crime
Topic 1 - Arrest
Title B - Conditions of the Privilege
Subtitle I - In General
§ 118 GENERAL PRINCIPLE
The use of force against another for the purpose of effecting
his arrest and the arrest thereby effected are privileged if all the conditions
stated in §§ 119-132, in so far as they are applicable, exist.
COMMENTS & ILLUSTRATIONS: Comment:
a. The Restatement of this Subject deals only with tort liability, and the question whether the conduct of the actor in making an arrest is criminal is beyond its scope. Likewise the Restatement of this Subject does not consider the question whether the arrest is made under such circumstances as to entitle the person arrested to be released under habeas corpus proceedings, or to render invalid the judicial proceedings in the course of which the arrest is made.
In most jurisdictions the power of an officer or a private citizen to arrest is now governed by statute. The rules stated in §§ 119-132 are the prevailing rules of the common law, which are applied where for any reason the statutes are found to be inapplicable, or sometimes in interpretation of the statutes themselves.
b. "False arrest." An arrest usually involves a confinement (see § 112) and, in such case, the actor unless privileged is liable for "false imprisonment" under the rules stated in §§ 35-45 A. An arrest, whether with or without a warrant, usually involves conduct which, unless privileged, is an "assault" or "battery" as well as a "false imprisonment." If an arrest is made by a mere touching without confinement, as in the execution of a valid warrant, the touching is offensive and, unless privileged, is a "battery" under the rules stated in §§ 18-20. Where a privilege to arrest exists, it justifies not only the confinement but also any conduct which is reasonably necessary to effect the arrest.
c. If the arrest is made without a warrant, the conditions stated in one or another of §§ 119, 120, and 121 and in §§ 122-132 must be satisfied in order that the arrest be privileged.
d. If the arrest is made under a warrant, the conditions stated in §§ 122-132 must be satisfied in order that the arrest be privileged.
e. For convenience it is constantly said, in the subsequent Sections dealing with the privilege to arrest, that the actor is "privileged to arrest," no mention being made of the acts done for that purpose. The "privilege to arrest" so used includes the privilege to use force not only in making but in attempting to make an arrest.