Attorney General: Honorable Patricia A. Wilson-Coker, Department of Social Services, 2000-010 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

March 7, 2000

Honorable Patricia A. Wilson-Coker
Department of Social Services
25 Sigourney Street
Hartford, CT 06106-5033

Dear Commissioner Wilson-Coker:

This office previously responded to an inquiry concerning the authority of a Special Deputy Sheriff to serve a capias. At that time we provided an informal advice to the effect that the "better practice" was for a regular Deputy Sheriff to serve the capias, but that a Special Deputy Sheriff could assist, and suggested that it would be advisable to obtain legislative clarification with respect to what authority a Special Deputy Sheriff had.

During the period since that informal advice the issue of what authority a Special Deputy Sheriff had in connection with serving a capias has continued to arise. Accordingly, you have asked us to issue a formal opinion on this question. We have carefully considered the relevant legal authorities. For the reasons explained below we conclude that a Special Deputy Sheriff does not have the authority to serve a capias.1

In reaching this conclusion we have determined that a capias is civil process, and that a Special Deputy Sheriff is not authorized by statute to serve civil process. Additionally, the authority of a Special Deputy Sheriff to make a criminal arrest does not authorize the service of a capias since a capias is a civil process, not a criminal arrest. Finally, although in particular exigent circumstances a sheriff has the power to command assistance or specially deputize someone to serve process, that power cannot be used in the ordinary course of business to command a Special Deputy Sheriff to serve civil process, such as a capias.

Analyzing the question you have raised requires a discussion of the following: (1) the authority of the Sheriff and the two different classes of officers subordinate to the Sheriff, Deputy Sheriffs and Special Deputy Sheriffs and their respective statutory authority; (2) distinctions in the law between civil process and criminal process; (3) the arrest authority of both types of deputy sheriffs; and, (4) an understanding of the scope of the authority of a sheriff to command assistance, or to specially deputize someone to serve particular process..

  1. Authority of Sheriffs, Deputy Sheriffs and Special Deputy Sheriffs.

    It is clear that "[t]he sheriff is an officer of very great antiquity…" Blackstone, William, Commentaries on the Laws of England, Vol. 1, p. 328 (1795). "The office is derived to us from England: but the power of it depends on statutes, which have varied it from what is in England." Swift, Zephaniah, A System of the Laws of the State of Connecticut, Vol. I, p. 90 (1795).

    The sheriff is considered as the principal officer in the county, and has great and extensive authority. It is his duty and in his power to preserve the peace of the county, and to suppress all tumults, riots, routs, and unlawful assemblies, by force and strong hand. He may officially and without warrant, apprehend all persons whom he shall find in the disturbance of the peace, and them carry before proper authority…

    * * *

    He is authorized to serve and execute all lawful writs, to him directed, by lawful authority… He is bound to receive all lawful writs, when they are tendered to him without his county, and make return according to law, and the direction therein given…

    Swift, Zephaniah, A System of the Laws of the State of Connecticut, Vol. I, p. 91 (1795).

    The Sheriff's authority to serve all writs directed to him has long been recognized in Connecticut judicial decisions. See, e.g., Dow v. Kelly, 1 Root 552, 552 - 553 (Conn. 1793) (city sheriff possessed same power as county sheriff to "obey all lawful writs directed to them…"). The authority of the sheriff is presently codified in Conn. Gen. Stat. § 6-31.2

    The historical authority of the Sheriffs themselves is quite broad.3 In fact, the authority of Sheriffs is used to describe the powers of other law enforcement officers, such as: (1) state police4; (2) constables5; and, (3) local police officers.6 The root authority that serves as the basis for understanding what powers other officers have, absent specific statutes conferring specific powers, is the authority of the Sheriff.

    Under these legal provisions there is no question whatsoever that the Sheriff himself may serve a capias since he is clearly authorized by common and statutory law to serve all lawful process. The question that remains is what authority a Deputy Sheriff and a Special Deputy Sheriff have to serve a capias.7

    The problem in evaluating what authority officers subordinate to the Sheriff have in Connecticut is that over time two entirely separate categories of officers subordinate to the Sheriff have been created. The positions of Deputy Sheriff and Special Deputy Sheriff evolved differently. The position of Deputy Sheriff has existed for a considerable period of time, while the position of Special Deputy Sheriff did not come into being until early in the 20th Century.

    The position of Deputy Sheriff existed at least as far back as the 1824 revision to the Connecticut General Statutes. During most of Connecticut's history the Sheriff has been authorized to appoint Deputy Sheriffs who were given the same power as the Sheriff.8 The authority to appoint one of the Deputy Sheriffs as Chief Deputy Sheriff was added in 1925. 1925 Conn. Public Acts ch. 69.

    Sheriffs have long had the authority to depute any proper person to serve process on special occasions9 — authority which is presently codified at Conn. Gen. Stat. §§ 6-38, 52-53. This authority of the Sheriff is a limited one, as pointed out in part IV of this opinion and is different from the position of Special Deputy Sheriff as we know it today.

    The position of Special Deputy Sheriff as we know it actually originated in the 20th Century. In 1903 the General Assembly authorized the Sheriff to appoint Special Deputy Sheriffs in the event of riot or civil commotion who were provided with all of the powers of the Sheriff except as to the service of civil process.10 1903 Conn. Public Acts ch. 174. The circumstances in which the Sheriff could appoint Special Deputy Sheriffs were expanded in 1925 to include prevention or investigation of crime. 1925 Conn. Public Acts ch. 69. This provision was further expanded in 1959 to include attendance at court. 1959 Conn. Public Acts #362, § 2. The apparent purpose of the expanded role of Special Deputy Sheriffs in 1959 was to attend the former Circuit Courts11 which had just been established.12

    The Deputy Sheriffs and the Special Deputy Sheriffs each have a different subset of the very broad authority of the Sheriff. Each Deputy Sheriff "shall have the same powers as such sheriff to serve civil process…"13 Conn. Gen. Stat. § 6-37. Each Special Deputy Sheriff has "all of the powers of the sheriff as provided by law, except as to service of civil process…" Conn. Gen. Stat. § 6-43. In addition, both Deputy Sheriffs and Special Deputy Sheriffs are separately empowered to make arrests without warrant. Conn. Gen. Stat. §§ 53a-3(9), 54-1f(a).

    Taking the Deputy Sheriff first, it is fair to say that the customary understanding in Connecticut is that Deputy Sheriffs are authorized to take persons into custody on appropriate civil process.14 The legal basis for doing so would either be: (1) that this is within the scope of the Sheriff's power to serve civil process, and therefore also the Deputy Sheriff's power; and/or (2) that this is within the scope of the authority of a Deputy Sheriff to make an arrest.

    As far as the Special Deputy Sheriff is concerned, the act of a Special Deputy Sheriff actually making an arrest on a capias, as distinguished from assisting a Deputy Sheriff, appears to be of relatively recent origins. Our research has not disclosed reported judicial decisions in which the arrest on a capias, body attachment or writ of ne exeat (to take the most obvious examples of civil process authorizing an individual to be placed in custody) was effected by a Special Deputy Sheriff. The ability of a Special Deputy Sheriff to make an arrest on a capias would have to come either from the authority of the Sheriff excluding the authority to serve civil process15 or the authority of a Special Deputy Sheriff to make an arrest.

    The next parts of this opinion analyze the extent to which legal distinctions between civil and criminal process aid in determining who is authorized to serve a capias. This includes whether the arrest authority of Deputy Sheriffs and Special Deputy Sheriffs authorizes service of a capias.16

  2. Connecticut Law Distinctions Between Civil and Criminal Process.

    In addressing the ability to serve a capias it is important to understand what the process actually is. While we have not identified any Connecticut case law specifically explaining the nature of a capias, the situations in which a capias is customarily used shed a great deal of light on its purpose in the judicial system.

    There are two primary purposes for issuing a capias, both of which involve bringing someone to court by taking the person into custody. First, when a witness fails to appear in court in response to a subpoena a capias may be issued "to arrest the witness and bring him before the court to testify."17 Conn. Gen. Stat. § 52-143(e); State v. Frye, 182 Conn. 476, 483 (1980); DiPalma v. Wiesen, 163 Conn. 293, 298 (1972). Issuance of the capias is in the discretion of the court. DiPalma, 163 Conn. at 298. While the capias does result in a person being taken into custody in order to appear in court (which may involve temporary incarceration until court is in session), it is only after the witness refuses to testify that the court would find the witness in contempt and coercively incarcerate the witness until the testimony is provided.

    Similarly, in the family relations area a capias may be issued when a person required to pay a child support order has failed to appear in court following service of a summons, subpoena or citation. Conn. Gen. Stat. §§ 17b-745(a), 46b-231(m)(1). Again, the purpose of the capias is to bring the person to court. The coercive incarceration of a person required to pay a child support order would come under the court's contempt power, following a finding that the obligor is in contempt by having failed to comply with the support order. Conn. Gen. Stat. §§ 17b-745(a), 46b-231(m)(7).

    The capias is coercive in nature, being intended merely to bring the person to court either to testify or to answer the summons or citation concerning child support. A capias neither charges nor adjudicates any offense. In this respect a capias is actually very different from an "arrest warrant" which flows from a judicial finding of probable cause based upon a charge by a prosecutorial official that an offense has occurred, as substantiated by the affidavits supporting the warrant application.

    Connecticut law has long recognized a distinction between criminal process and civil process with respect to arrests.18 "There is one important distinction, however, between criminal process and civil process as to arrests, as an officer can not break open outer doors to take a person on civil process; but when a warrant is granted on complaint for a crime, amounting to felony, or accompanied by violence, the officer has power to break open doors if necessary…" Joy, John W., Connecticut Civil Officer, 19th Edition, p. 310 (1948). This distinction derives from the common law rule to the same end which has been applied in several older Connecticut cases.19 E.g.: Fourette v. Griffin, 92 Conn. 388, 391 (1918) (not permissible to break outer door to serve civil process of replevin); Shaw v. Shaw and Six Others, 1 Root 134 (Conn. 1789) (officer may break down door to make criminal arrest); Fitch v. Loveland, 1 Kirby 380, 386 - 387 (Conn. 1788) (Ellsworth, J., dissenting) (while outer door may not be broken open to effect civil arrest, inner door should have been). The important thing to be gleaned from this common law rule is that an arrest on civil process is different from an arrest on criminal process, and that Connecticut has preserved this distinction.

    The capias is not the only form of process that does not initiate criminal charges but does result in the arrest of a person. The body attachment is one such example. While body attachment is no longer authorized, it was clearly a form of process well recognized in the formative years of Connecticut law. E.g.: Swift, Zephaniah, A System of the Laws of the State of Connecticut, Vol. II, pp. 189 - 191 (1796); Joy, John W., Connecticut Civil Officer, 19th Edition, p. 245 (1948).

    Another such example is the writ of ne exeat — a common law writ which may still be issued by Connecticut courts. Conn. Gen. Stat. § 52-489. "[A] writ of ne exeat is an order, directed to the sheriff, commanding him to commit a party to custody until he gives security in the amount set by the court to guarantee his appearance in court. National Auto & Casualty Ins. Co. v. Queck, supra, 1 Ariz.App. 600, 405 P.2d 905. The writ of ne exeat is executed in all respects like an ordinary capias, and the bond is taken in the same way. The defendant, if arrested under the writ, may give bond at any time and be discharged. Griswold v. Hazard, 141 U.S. 260, 280-81, 11 S.Ct. 972, 35 L.Ed. 678 (1891)." Beveridge v. Beveridge, 7 Conn. App. 11, 16 - 17 (1986) (emphasis added).

    Yet another example of civil process to take someone into custody is the former statutory bastardy procedure. Bastardy proceedings in Connecticut were long settled to be a civil in nature. Hamden v. Collins, 85 Conn. 327, 330 (1912). The "civil" nature of a warrant in bastardy is very clear.

    The plaintiff characterizes the action commanded by the warrant as an arrest, and argues therefrom that, while the proceeding may be civil in its nature the warrant was not a civil process. This contention rests upon a misunderstanding of the scope and meaning of "arrest." It fails to distinguish between a civil and criminal arrest, and to appreciate that the word "arrest" is as appropriately used to designate the former as the latter. [Citations omitted].

    Hamden v. Collins, 85 Conn. 327, 331 (1912) (emphasis added).

    The reason why it is necessary to look at whether a capias is civil or criminal is the statutory text that distinguishes the authority of a Deputy Sheriff from the authority of a Special Deputy Sheriff. A capias is certainly not a criminal arrest warrant as we understand it. The well established existence of several forms of process requiring a person to be taken into custody that are clearly civil in nature, as well as the ancient common law distinction between civil and criminal arrests with respect to the steps that an officer can take to execute the process, surely highlights the fact that a civil arrest is well known to Connecticut law.

    Connecticut law clearly distinguishes between civil arrests and criminal arrests. The distinguishing characteristic of a criminal arrest is that it results in a person being charged with an offense for which a sentence of incarceration for a definite term and/or a fine may follow. A civil arrest merely brings a person to court to testify or to respond to a civil claim.20 It seems clear to us, under this analysis, that a capias is civil process. The consequence of this is also the conclusion that service of a capias is within the authority of a Deputy Sheriff and outside of the authority of a Special Deputy Sheriff.

  3. Arrest Authority of Deputy Sheriffs and Special Deputy Sheriffs.

    Both Deputy Sheriffs and Special Deputy Sheriffs are empowered to arrest without warrant as peace officers. Conn. Gen. Stat. §§ 53a-3(9), 54-1f(a). Their authority in this regard is identical, and it extends to making an arrest for any "offense." The term "'offense' means any crime or violation which constitutes a breach of law … for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction." Conn. Gen. Stat. § 53a-24(a) (emphasis added). An arrest under a capias is clearly not an arrest for an offense within the scope of this arrest authority. Accordingly, this authority cannot be the basis for either a Deputy Sheriff or Special Deputy Sheriff to execute a capias.

    This brings us back to the Deputy Sheriff and Special Deputy Sheriff having mutually exclusive authority with respect to civil process — the Deputy Sheriff clearly has all of the power of the Sheriff with respect to civil process; the Special Deputy Sheriff has none. Therefore, it is only the Deputy Sheriff that has authority to execute a capias, because of its inextricable connection to the service of civil process.

  4. Authority To Command Assistance or Deputize Someone to Serve Process.

    The final legal doctrine to examine in analyzing whether there is any basis in law for a Special Deputy Sheriff to make an arrest with a capias is the authority of an officer to command assistance or deputize someone to serve process. Each Sheriff has the authority "to raise the power of the county and command any person to assist him in the execution of his office."21 Conn. Gen. Stat. § 6-31. Similarly, each Sheriff has the authority to "depute any proper person to execute any process." Conn. Gen. Stat. § 6-38; see also Conn. Gen. Stat. § 52-53.

    Failure to assist the Sheriff when commanded to assist him in the execution of his office is within the scope of the misdemeanor set forth at Conn. Gen. Stat. § 53a-167b. The power to command assistance is ancient in origin, "derived from a time in which the public peace depended upon the ability of the populace to summon their neighbors, through the raising of the 'hue and cry,' to come to their assistance when a crime had occurred. [Citations omitted]." State v. Floyd, 217 Conn. 73, 90 - 91 (1991).

    [The sheriff] may command all proper persons within his county, to aid and assist him in the execution of his office. This is the same power that they have in England, and is called raising the posse commitatus, or power of the county.

    Swift, Zephaniah, A System of the Laws of the State of Connecticut, Vol. I, p. 91 (1795).

    The sheriff has the liberty of deputing some meet person on special occasions, to serve and execute any particular process, which deputation, must be on the back of the writ… The only instances where it is usual for sheriffs to make such special deputies are where no legal officer can conveniently be had, or the person against whom the writ is, secretes himself, and keeps himself out of the way of known officers. In such cases, he deputes some person for that special purpose, so that there be no failure of justice…

    Swift, Zephaniah, A System of the Laws of the State of Connecticut, Vol. I, p. 92 (1795) (emphasis added).

    Judge Swift's understanding of the ability of the Sheriff to command assistance or specially authorize someone to serve particular process is that this authority was limited. The limited nature of this authority is also reflected in sparse caselaw authority concerning this practice. "It is the wise policy of the law that its process shall be directed to known public officers, and the law sanctions a departure from this policy only in cases of supposed necessity. Statutes authorizing such departure should receive a strict construction. Eno v. Frisbie, 5 Day 122, 127 [(Conn. 1811)]." Kelley v. Kelley, 83 Conn. 274, 276 (1910) (emphasis added).

    Similarly, the modern understanding of the authority to command assistance is consistent with Judge Swift's views early in Connecticut history. Statutes authorizing an officer to command assistance "have not been construed to confer unbounded discretion upon the peace officer." State v. Floyd, 217 Conn. 73, 92 (1991). These statutes authorize "a peace officer to command the assistance of a civilian[22] only when such assistance is both demonstrably necessary and reasonable under all of the circumstances." State v. Floyd, 217 Conn. at 92 - 93. Determining the reasonableness of a command to assist an officer looks at the following factors, at a minimum:

    the urgency of the situation giving rise to a command for assistance; the availability of other trained law enforcement officers, rather than untrained civilians, to come to an officer's aid; the nature of the assistance sought; the appropriateness of commandeering the assistance of these individuals; the provocativeness of the situation in which aid is sought; the presence or threat of the use of weapons; and the risk of injury or death to the officer, to the individual being ordered to assist, and to any other parties present…

    State v. Floyd, 217 Conn. 73, 92 (1991) (footnotes omitted).

    The above legal authorities make it clear that the authority to command assistance or to specially deputize any person to serve any particular process is relatively narrow. A general authorization to a Special Deputy Sheriff to serve any capias that comes in through the ordinary flow of sheriff business23 does not come within the Sheriff's authority either to command assistance or to specially deputize someone to serve specific process.

  5. Conclusion.

    For the above reasons we feel that the better reading of the law is and accordingly conclude that a Special Deputy Sheriff may not actually make an arrest under a capias. Of course, this could be changed with appropriate legislation.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Robert B. Teitelman
Assistant Attorney General

RB/RBT


1 A Special Deputy Sheriff would continue to be able to assist a regular Deputy Sheriff, provided that the regular Deputy Sheriff actually makes the arrest on the capias. The purpose of utilizing a Special Deputy Sheriff in this circumstance would be to help in preserving the peace while the regular Deputy Sheriff executed the process.

2 "Each sheriff may execute in his county all lawful process directed to him, shall be conservator of the peace and may, when necessary, with force and strong hand, suppress all tumults, riots, unlawful assemblies and breaches of the peace and may raise the power of the county and command any person to assist him in the execution of his office." Conn. Gen. Stat. § 6-31.

3 That the authority is broad does not mean that it is unlimited. Portions of this opinion identify limitations on the powers of the Sheriff which were first recognized early in the history of the State of Connecticut.

4 "All state policemen shall have, in any part of the state, the same powers with respect to criminal matters and the enforcement of the law relating thereto as sheriffs, policemen or constables have in their respective jurisdictions…" Conn. Gen. Stat. § 29-7 (emphasis added).

5 "Constables shall have the same power in their towns to serve and execute all lawful process legally directed to them as sheriffs have in their respective counties and shall be liable in the same manner for any neglect or unfaithfulness in their office." Conn. Gen. Stat. § 7-89 (emphasis added).

6 "Active members of any legally organized police force in a town, city or borough shall have the same authority to execute criminal process in their respective towns, cities or boroughs as constables have in their respective towns…" Conn. Gen. Stat. § 7-281 (emphasis added). The power of constables is itself derivative of the power of sheriffs, as noted in the previous footnote.

7 The issue of assisting in the service of a capias is an entirely differently issue which is not addressed at length in this opinion since the authority of a Special Deputy Sheriff to assist in the service of a capias is not seriously in dispute. A Special Deputy Sheriff clearly has criminal enforcement authority. If the Sheriff or any Deputy Sheriff has any reasonable concern about possible interference with the officer serving a capias, breach of peace, public commotion, etc. — all of which are reasonable concerns just about any time a person is taken into custody — the Sheriff's general criminal authority (like the authority of a local police department which is actually derivative of the Sheriff's authority) would justify assigning Special Deputy Sheriffs to be present to insure that the Deputy Sheriff serving the capias is able to do his job effectively. This opinion only addresses the scope of this authority. It goes without saying that any officer performing law enforcement functions also needs to be properly trained in those duties. Only Special Deputy Sheriffs who have suitable training should assist Deputy Sheriffs in serving a capias.

8 E.g.: Conn. Gen. Stat. § 91-10 (1824 Revision); Conn. Gen. Stat. § 56-13 (1866 Revision); Conn. Gen. Stat. § 1763 (1902 Revision); Conn. Gen. Stat. § 213 (1918 Revision); Conn. Gen. Stat. § 230 (1930 Revision); Conn. Gen. Stat. § 456 (1949 Revision).

9 This authority has been codified in virtually all of the compilations of the Connecticut General Statutes. E.g.: Conn. Gen. Stat. § 92-14 (1824 Revision); Conn. Gen. Stat. § 56-19 (1866 Revision); Conn. Gen. Stat. § 1763 (1902 Revision); Conn. Gen. Stat. § 216 (1918 Revision); Conn. Gen. Stat. § 233 (1930 Revision); Conn. Gen. Stat. § 457 (1949 Revision).

10 A separate category of Special Deputy Sheriff, appointed on the request of any town, city, borough, district or corporation was first created in 1917. 1917 Conn. Public Acts ch. 369. This category of Special Deputy Sheriff still exists. Conn. Gen. Stat. § 6-44. This opinion does not address the authority belonging to this category of Special Deputy Sheriff.

11 This was pointed out in the sparse legislative history of this act. As Rep. Shea noted: "Mr. Speaker, this act simply allows the appointment of special deputy sheriffs; these are not men who serve process but who will be able to appear in court upon [sic] the needs of the Circuit Court…" 1959 Conn. House Proc., p. 3388 (May 14, 1959).

12 The Circuit Courts were created during 1959 by act of the General Assembly. 1959 Conn. Public Acts #28.

13 Interestingly the limitation of the authority of the deputy sheriffs to serving civil process did not happen until recently. This limitation is derived from 1982 Conn. Pub. Acts 82-307, § 7. Prior to the 1982 public act Deputy Sheriffs had all of the authority of the Sheriff. The legislative history of the 1982 change is limited. See 1982 Conn. Senate Proceedings, pp. 1786 - 1791, 1833; 1982 Conn. House Proceedings, pp. 6301 - 6308; 1982 Conn. Judiciary Committee Proceedings, pp. 1008 - 1009. None of this legislative history addresses this change — portions address changes in laws regarding jurors and other portions address shifting the liability for Deputy Sheriff misconduct from the Sheriff to the Deputy Sheriffs.

14 In fact, prior to the modern trend of directing all legal process "To any proper officer" the customary form for a capias was directed "To the Sheriff of the county of … his Deputy, or either Constable of the town of … within said county." Joy, John W., Connecticut Civil Officer, 19th Edition, p. 159 (1948) (form for capias; emphasis added). During this time period the office of Special Deputy Sheriff also existed. Conn. Gen. Stat. § 459 (Revision of 1949). Similarly, the customary form for a body attachment was directed "To the Sheriff of the county of H— his deputy, or to either of the constables of the town of G— in said county…" Swift, Zephaniah, A System of the Laws of the State of Connecticut, Vol. I, p. 443 (1795) (emphasis added).

15 If this was the basis for the authority to serve a capias then the regular Deputy Sheriff would not have such authority. In this regard the authority of a Deputy Sheriff and a Special Deputy Sheriff are mutually exclusive.

16 In addition, the final part of this opinion looks at the "power to command assistance" and at the Sheriff's authority to specially deputize a person to serve specific process as a basis for permitting a Special Deputy Sheriff to serve a capias.

17 A capias may also be used to bring a witness to court for a criminal case who failed to appear in response to a subpoena or to bring a non-appearing criminal defendant to court. Conn. Gen. Stat. §§ 54-1h, 54-2a(a)(3).

18 The court's contempt power is another area where the distinction between "civil" and "criminal" is often drawn. Contempt remedies that are coercive or compensatory are civil while those that are punitive are criminal. Ullmann v. State, 230 Conn. 698, 710 (1994). Incarceration for contempt which is coercive in nature, whether to imprison someone until an order is complied with or for a fixed term with an opportunity for earlier release upon compliance, is civil in nature, while incarceration for contempt for a fixed term for a completed act of disobedience is criminal in nature. International Union, UMWA v. Bagwell, 512 U.S. 821, 828 - 829, 114 S.Ct. 2552, 2557 (1994). Similarly, contempt fines that are not compensatory must afford the contemnor the opportunity to purge the contempt to be considered civil, while a flat unconditional fine is criminal contempt. International Union, UMWA v. Bagwell, 512 U.S. at 829, 114 S.Ct. at 2557; Ullmann, 230 Conn. at 698. This is another area where the essential distinction between "civil" and "criminal" is coercion as opposed to punishment. By analogy, the capias, being intended to coerce the appearance of a person in court, would be a civil arrest, while an arrest warrant, starting the process by which a person might be punished, would be a criminal arrest.

19 There is also a constitutional dimension to this distinction. The U.S. Supreme Court has noted the existence of this ancient common law rule. Miller v. U.S., 357 U.S. 301, 306 - 307, 78 S.Ct. 1190 (1958). Similarly, the Court has noted in dictum that the justification for a forcible entry to serve a civil capias may be weaker than the justification for forcible entry to serve an arrest warrant. See Pembaur v. Cincinnati, 475 U.S. 469, 488, 106 S.Ct. 1292 (1986) (Stevens, J., concurring). Of course, whether or not action of an officer is constitutional is not necessarily probative of whether the officer is authorized to take that action by statute or common law.

20 While the consequences of the person not adhering to the court's orders in connection with the civil claim could involve incarceration, it is very clear under the law that coercive incarceration under the court's contempt power is civil in nature rather than criminal. E.g., International Union, UMWA v. Bagwell, 512 U.S. 821, 828 - 829, 114 S.Ct. 2552, 2557 (1994).

21 Similarly, each Deputy Sheriff and Special Deputy Sheriff, having all of the powers of the Sheriff as to certain specified matters, would have the power to command assistance with respect to whatever they were each authorized to do, and are also within the purview of Conn. Gen. Stat. § 53a-167b. However, this just begs the question of determining the scope of authority that each category of officer possesses since the officer could not command assistance for an act the officer was not authorized to perform.

22We have not found any legal authority addressing a circumstance where an officer commanded the assistance of another officer, thereby increasing the authority of the latter.

23 The way in which a person is specially deputized is by the Sheriff endorsing his action on the original process itself. Conn. Gen. Stat. § 52-53. It is significant that the failure to endorse this deputation on the copy served is a material irregularity which vitiates the service. Kelley v. Kelley, 83 Conn. 274, 277 (1910). That the deputation itself needs to be endorsed on the original process and on the copy served would prevent the Sheriff from providing any general authorization for Special Deputy Sheriffs to perform the task of serving capias. It is also clear that prior to making such a special deputation for a particular process the Sheriff would have to determine the necessity of doing so, in light of the legal principles that are addressed in this opinion.


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