COMMONWEALTH vs. RYAN J. CABRAL (and thirty-six companion cases [Note 1]).

MARSHALL, C.J. We granted the defendants' application for direct appellate review of two questions a Superior Court judge reported to the Appeals Court [Note 2] in connection with his reconsideration of his earlier decision denying the defendants' motions to dismiss the indictments:

1. Whether the defendants, either acting as a Massachusetts surety posting bail for a principal or acting as agents for that surety, may raise as an affirmative defense that they possess the lawful authority to apprehend, detain, and deliver the principal to the court house?

2. If the surety and his agents have the authority to apprehend, detain, and deliver the principal to the court house, what are the standards for determining whether they acted within the bounds of that authority?

For the reasons discussed below, the answer to Question 1 is "Yes." As to Question 2, a surety [Note 3] and his agents may use only such force as is reasonable in the circumstances to apprehend, detain, and deliver the principal to the court house, which shall in any event not exceed the force a police officer would be justified in using to execute an arrest warrant in analogous circumstances. Moreover, any use of force must be preceded by sufficient notice to the principal.

1. Background. The Commonwealth has charged the defendants, a surety and his alleged agents, with kidnapping, G. L.

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c. 265, § 26; conspiracy to commit kidnapping, G. L. c. 274, § 7; assault by means of a dangerous weapon, G. L. c. 265, § 15B; and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A. In addition, two defendants are charged with assault and three with assault and battery, G. L. c. 265, § 13A (a). The charges stem from the defendants' apprehension, detention, and delivery to Superior Court of a principal to exonerate bail after the principal did not appear at a court hearing. The primary facts of record, which were the only facts before the judge as he ruled on the defendants' motions to dismiss, are the grand jury minutes, which we summarize. [Note 4], [Note 5]

On June 29, 2001, the defendant Phillipe Lima, and on November 9, 2001, Michael Correia, not a defendant in this case, posted $10,000 cash bail each as sureties for charges then pending against the principal. [Note 6] On February 28, 2002, the principal failed to appear at a court hearing in his case. He claims he was not present because his lawyer had told him he need not appear on that date. The record does not indicate whether the principal's absence resulted in a default.

On the evening of March 6, 2002, after playing basketball, the principal left a recreation center with a friend and one of the defendants, Sharik Mendes. They stopped at the house where Mendes's brother lived. As the principal entered the kitchen, the defendant Brandin Gonsalves lunged at him, pointed a gun at

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his chest, and said, "Oh, you're going to run on my bail? [Expletive] that." Several other people grabbed the principal, slammed him face down to the ground, and handcuffed him with his arms behind his back. Several of the defendants, including Ryan Cabral, John Ferreira, Robert Feliciano, and Mendes, were present during, or participated in, this encounter. Various of the defendants later participated in moving the principal to two other locations, [Note 7] detaining him overnight. During this time, the defendants kept the principal handcuffed, at all times in the presence of at least one person armed with a gun. The following day the defendants surrendered the principal at the court house. [Note 8]

2. A surety's lawful authority. To answer Question 1, we must resolve two related questions. First, do a surety and his agents have the lawful authority to apprehend, detain, and deliver the principal to the court house? As to that, the Commonwealth argues that no such authority exists because the Legislature has statutorily abrogated the common law that recognized such authority. Second, assuming such lawful authority exists, implicit in the judge's use of the phrase "affirmative defense" is a second question: how should a court allocate between the parties the burden of proving whether a defendant is or is not a surety or surety's agent? We address each in turn.

(a) Existence of lawful authority. We commence our discus-

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sion with a brief overview of the common law concerning the authority of a bail bondsman or surety to surrender his principal. See note 3, supra. At common law, a surety had "the custody of the principal, and may take him at any time, and in any place." Commonwealth v. Brickett, 8 Pick. 138, 140 (1829). He was permitted to seize the principal himself or to engage an agent to do so, without resort to the legal system. Id. Accord Tailor v. Trainor, 83 U.S. (16 Wall.) 366, 371 (1872). See Commonwealth v. Wilkinson, 415 Mass. 402, 404 (1993). [Note 9] The surety could use such force as might otherwise result in civil or criminal liability: "If the door [to the principal's dwelling] should not be opened on demand at midnight, the bail may break it down, and take the principal from his bed, if that measure should be necessary to enable the bail to take the principal." Commonwealth v. Brickett, supra. The principal was presumed to consent to, and the State presumed to authorize, the surety's use of such force. See, e.g., Commonwealth v. Stuyvesant Ins. Co., 366 Mass. 611, 614-616 (1975) (explaining that "the surety legally obtains sufficient control over the principal to . . . surrender the principal in discharge of the surety's obligation to the Commonwealth" and that "[t]here is an implied term in the contract that the Commonwealth will not interfere with the surety's custody of the principal"); Commonwealth v. Brickett, supra at 140-142. See also note 12, infra.

The Commonwealth argues that two statutes originally enacted in 1863 have supplanted the common law just described. See G. L. c. 276, § 68 [Note 10] (concerning surety's right to surrender

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principal before default); G. L. c. 276, § 69 [Note 11] (concerning surety's right to surrender principal after default). In the Commonwealth's view, Commonwealth v. Brickett, supra, "is no longer good law in Massachusetts" and, while a surety is "entitled" to return of any money posted as bail when he surrenders the principal to an appropriate official, "this entitlement does not give to a surety the right to arrest," which, according to the Commonwealth, "except in the rarest of cases, the Commonwealth reserves for itself."

We do not agree for several reasons. Neither statute expressly codifies, modifies, or abrogates the scope of the common-law right of a surety to apprehend and detain the principal in order to exonerate bail. Nor does either statute place any limits on a surety's actions while effecting a surrender. Stated differently, the statutes leave unexplained how the surety is to "obtain [] sufficient control over the principal" so as to complete the surrender. Commonwealth v. Stuyvesant Ins. Co., supra at 615. Rather, the statutes describe the administrative protocol that the surety must follow to recover his deposits. The statutes address aspects of the relationship between the Commonwealth and the surety; they do not address the relationship between the principal and the surety or purport to govern how the surety may exercise custody over his principal. [Note 12]

Our conclusion is consistent with the settled rule of statutory construction that "[a] statute is not to be interpreted as effecting

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a material change in or a repeal of the common law unless the intent to do so is clearly expressed." Eyssi v. Lawrence, 416 Mass. 194, 200 (1993), quoting Riley v. Davison Constr. Co., 381 Mass. 432, 438 (1980). We see no clear expression of legislative intent to abrogate the common law concerning the surety's right to exercise custody over his principal. [Note 13] To the contrary, as recently as 1999, members of the Massachusetts House of Representatives implicitly recognized that a surety has a broad right to capture and detain his principal, and proposed legislation to limit it. See An Act Relative to Bounty Hunters, So-Called, 1999 House Doc. No. 1481 (providing that individuals "engaged in the business of recapturing prisoners released on bail who have defaulted shall register with the Department of Public Safety prior to undertaking any such activity," requiring such individuals to "notify the local police department and request its assistance prior to such undertaking," and affording such prisoner "all the constitutional and statutory rights he would be entitled to if arrested by a police officer"). [Note 14]

It is therefore to the common law that we look to answer the reported questions. It is beyond dispute that the common law provides that the surety may raise as a defense to a charge of criminal conduct his right to apprehend his principal and deliver him to the court house. See, e.g., Commonwealth v. Wilkinson, supra at 408. Of course, a surety's right to use force in exercising custody over a principal is not unfettered, an issue we address in our answer to Question 2.

We recognize that there are compelling public policy reasons why the Legislature may seek to curtail further the common-law authority of a surety to apprehend and detain his principal in order to exonerate bail. The Legislature has already made such a determination with respect to the apprehension and detention

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of individuals in response to a request that they be surrendered to another State. See Uniform Criminal Extradition Act, G. L. c. 276, §§ 11-20R. The Legislature also has had before it proposed legislation to curtail the authority of a surety to apprehend his principal unless he acts in concert with a local police department. In our response to Question 2 we explicate limits imposed by the common law on the surety's authority, limits designed to minimize harm both to the principal and to the public. But we have no authority, for example, to order sureties to register with the Department of Public Safety or to order local police to assist sureties in the exoneration of their bail. Cf. 1999 House Doc. No. 1481; note 20, infra. Further limitations to that effect must be imposed by the Legislature.

(b) Allocation of burdens. The reporting judge asks whether the defendants may raise their lawful authority as surety or agents as an "affirmative defense" to the charged offenses. This necessarily requires resolution of whether a claim of "lawful authority" is an affirmative defense and, if so, the proper allocation of burdens that such a defense may raise in these criminal proceedings. [Note 15] We have not previously been asked to consider the question in the context of bail exoneration and take this occasion to address the allocation of the burdens of production and persuasion in such cases.

The phrase "affirmative defense" is a term of art. The Model Penal Code (code), which we on occasion have used to guide our interpretations of Massachusetts law, see, e.g., Commonwealth v. Klein, 372 Mass. 823, 830 (1977), defines an af-

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firmative defense as one that "involves a matter of . . . justification peculiarly within the knowledge of the defendant on which he can fairly be required to adduce supporting evidence." Model Penal Code § 1.12(3)(c) (1985).

Because the absence of lawful authority or justification is an element of each of the crimes charged, the Commonwealth must prove beyond a reasonable doubt that each defendant acted without lawful authority or justification. [Note 16], [Note 17] Cf. Commonwealth v. Rodriguez, 370 Mass. 684, 687-689 (1976) (in murder cases, Commonwealth has burden of proving that killing was "unlawful"). However, where a defendant asserts an "affirmative defense," he takes on a burden of production, because the Commonwealth has no burden of disproving an affirmative defense "unless and until there is evidence supporting such defense." Model Penal Code § 1.12(1), (2). If the defense is "affirmative," once a defendant raises the defense to a charge and the defense is supported by sufficient evidence, the defendant is entitled to have a jury instruction on the defense, and the Commonwealth has the burden of disproving the

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defense. [Note 18] Cf. Commonwealth v. Lopes, 440 Mass. 731, 740 (2004) (self-defense in murder case); Commonwealth v. Epsom, 399 Mass. 254, 257 (1987) (same); Commonwealth v. Klein, supra at 831 (deadly force during citizen arrest).

We cannot say that the "lawful authority" of the surety himself (as opposed to his agents) to apprehend, detain, and deliver his principal is an affirmative defense to kidnapping. When a defendant in a criminal case is released on bail, the person authorized to take bail -- a clerk, magistrate, or bail commissioner -- retains a copy of the recognizance form signed by the surety and the principal, and by signing the form he attests that he has furnished the principal with a copy. Because a recognizance is a matter of record, the prosecution reasonably can be expected to produce a copy of the form indicating who posted a principal's bail. See, e.g., G. L. c. 276, § 61 (providing, in pertinent part, that "[i]f bail is taken out of court, the person authorized to admit to bail in criminal cases" must return "a proper recognizance to the proper court"); Modern Fin. Co. v. Martin, 311 Mass. 509, 510 (1945) ("A recognizance is an obligation of record . . ."). The existence of a surety relationship therefore is not "peculiarly within the knowledge of the defendant." Model Penal Code § 1.12(3)(c). A defendant claiming lawful authority as a surety, such as the defendant Lima in this case, therefore bears only the burden of raising the defense.

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Once the surety raises the defense, the Commonwealth must prove beyond a reasonable doubt that he was not a surety. [Note 19]

In contrast, a defendant claiming lawful authority as a surety's agent does raise an affirmative defense because it "involves a matter of . . . justification peculiarly within the knowledge of the defendant on which he can fairly be required to adduce supporting evidence." Id. It would be peculiarly difficult for the Commonwealth to prove that a defendant was not an agent of a surety, particularly if neither the defendant nor the surety testifies. [Note 20] It is therefore entirely appropriate to require a defendant claiming to act as the agent of a surety to produce evidence of the agency relationship, including the scope of the agency relationship. See id., comment 3 (where basis for defense "is so specially within the cognizance of the defendant, . . . it is fair to call on him to offer evidence if the defense is claimed"). In short, a defendant claiming to have the lawful authority to apprehend, detain, and deliver a surety's principal because he is acting as an agent of the surety is entitled to a jury instruction on this defense only if there is evidence sufficient for a rational jury to find that he was a surety's agent. Cf., e.g., Commonwealth v. Lopes, supra ("A defendant is entitled to an instruction on the use of nondeadly force if any view of the evidence . . . would support a finding that nondeadly

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force was, in fact, used in self-defense"). With respect to a defendant who claims to be an agent, if he satisfies this burden of production, the Commonwealth must prove beyond a reasonable doubt that the agency relationship did not exist or that the defendant acted outside the scope of the agency relationship. Here, as with a surety, the Commonwealth may prove that the agent acted beyond his "lawful" authority, which we next address.

3. Scope of lawful authority. The common law places limits on the extent of the force a surety may use to apprehend, detain, and surrender his principal. As we have previously noted, a surety may not "shackle[], confine[], or impede[] [the principal] in his daily movements," even though the Commonwealth may so restrict defendants in its custody. Commonwealth v. Stuyvesant Ins. Co., 366 Mass. 611, 615 (1975). Rather, the bail arrangement "implies only that the surety obtains sufficient control over the principal to assure his appearances, to prevent disappearances, and to surrender the principal in discharge of the surety's obligation to the Commonwealth." Id. Our cases therefore have authorized only those measures "necessary" to obtain "sufficient control over the principal" to enable the surety to conduct the surrender. Commonwealth v. Brickett, 8 Pick. 138, 141 (1829). See Commonwealth v. Stuyvesant Ins. Co., supra. Because the extent of a surety's use of force was not an issue in those cases, we did not explicate the standard for determining the bounds of a surety's lawful authority for the use of force in apprehending and delivering a principal. To do so now, we may look to analogous situations.

One such analogous situation concerns the arrest of a person by a private citizen. [Note 21] Two years after our decision in Commonwealth v. Stuyvesant Ins. Co., supra, this court incorporated

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into law Model Penal Code § 3.07 governing the use of force by private citizens in law enforcement. Commonwealth v. Klein, 372 Mass. 823, 830 (1977) (citizen's use of deadly force in making arrest). [Note 22] Among other things, the code restricts the use of force to what the actor "believes . . . is immediately necessary to effect a lawful arrest." Id. We adopted that section of the code to guard "against the dangers of uncontrolled vigilantism and anarchistic actions." Id. at 829.

The same standard is applicable in the context of a surety's apprehension and detention of a principal. Although the code's test for whether the use of force is justified appears on its face to be subjective, in practice it is applied objectively. The comments to the code explain that beliefs arrived at through negligence or recklessness do not justify the use of force. [Note 23] The comments also state that the unreasonableness of an actor's asserted

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belief is evidence that it was not actually held. We have cast the test objectively, as have other courts. See Julian v. Randazzo, 380 Mass. 391, 396 & n.1 (1980) (implicitly applying code to police officers and concluding trial judge properly instructed jury that "[a] law enforcement officer authorized to make an arrest . . . may use such force as is reasonably necessary to effect the arrest . . ."); Landrum v. Moats, 576 F.2d 1320, 1329-1331 (8th Cir. 1978) (implicitly approving of jury instruction that explained code language by stating, "[i]n making an arrest, a police officer may use whatever force is reasonably necessary. Reasonable force is generally that amount of force which an ordinary, prudent and intelligent person with the knowledge and in the situation of the police officer would have deemed necessary under the circumstances . . ."); Wagner v. Omaha, 236 Neb. 843, 847-848 (1991) (construing identical language to mean that "a police officer in making an arrest must use only reasonable force, which is that amount of force which an ordinary, prudent, and intelligent person with the knowledge and in the situation of the arresting police officer would have deemed necessary under the circumstances"). Furthermore, as noted in Commonwealth v. Klein, supra at 831 n.7, the American Law Institute adopted an objective "reasonably necessary" test in the Model Code of Pre-Arraignment Procedure § 120.7 that "carries forward . . . Section 3.07 of the Model Penal Code," although "the wording of the Model Penal Code provision has been changed slightly to adapt it to the present context." Model Code of Pre-Arraignment Procedure § 120.7 (1975). [Note 24]

Accordingly, in apprehending, detaining, and delivering a principal to a court or jailer, see G. L. c. 276, §§ 68, 69, a surety and his agents may use only such force as an ordinary, prudent, and intelligent person with the actor's knowledge would have believed necessary in the circumstances, which may in any event never exceed the force a police officer would be justified in using in executing an arrest. [Note 25] For the same reasons

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that this general rule concerning the use of force in law enforcement applies to the capture of a principal by a surety and his agents, so should the specific rule that requires the actor to explain his actions before resorting to the use of force. See Model Penal Code § 3.07(2)(a)(1). [Note 26] This rule mitigates the danger of self-defense reactions that could result in injury to the surety, his agents, the principal, or even innocent third-party bystanders.

In summary, assuming that any defendant is entitled to a jury instruction on "lawful authority," to prove as to each defendant that he did not act within the bounds of his lawful authority as a surety or surety's agent, the Commonwealth must prove beyond a reasonable doubt that the defendant used more force than an ordinary, prudent, and intelligent person with the defendant's knowledge would have believed necessary in the circumstances to capture and surrender the principal. Alternatively, the Commonwealth may prove that a defendant did not make known the purpose of the capture, did not believe that the purpose was otherwise known by the principal, and could have reasonably made the purpose known to the principal. See id. [Note 27]

We answer Question 1 in the affirmative. We answer Question

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2 as explicated above. The cases are remanded for further proceedings consistent with this opinion.

So ordered.