The Statutory Standard: Self-Defense

Note the stress on reasonable belief, proportionality, imminence, retreat, and forcible felony in the Utah self-defense statute.

Utah Code Annotated Section 76–2-402. Force in Defense of Person—Forcible Felony Defined

(1) A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that force is necessary to defend himself or a third person against such other’s imminent use of unlawful force. However, that person is justified in using force intended or likely to cause death or serious bodily injury only if he or she reasonably believes that force is necessary to prevent death or serious bodily injury to himself or a third person as a result of the other’s imminent use of unlawful force, or to prevent the commission of a forcible felony.

(2) A person is not justified in using force . . . if he or she . . .

(a)(i)    was the aggressor or was engaged in combat by agreement unless he withdraws from the encounter and effectively communicates to the other person his intent to do so and notwithstanding, the other person continues or threatens to continue the use of unlawful force. . . .

(3) For purposes of this section, a forcible felony includes aggravated assault, mayhem, aggravated murder, murder, manslaughter, kidnapping, and aggravated kidnapping, rape, forcible sodomy, rape of a child, object rape, object rape of a child, sexual abuse of a child, aggravated sexual abuse of a child, and aggravated sexual assault . . . [and] any other felony offense which involves the use of force or violence against a person so as to create a substantial danger of death or serious bodily injury. . . .
 

The Statutory Standard: Police Use of Force

Statutory Provision: The Missouri Statute that addresses the use of force by a police officer in making an arrest is fairly representative of laws governing the execution of public duties.

Missouri Revised Statutes Section 563.046. Law Enforcement Officer’s Use of Force in Making an Arrest

(1) A law enforcement officer need not retreat or desist from efforts to effect the arrest, or from efforts to prevent the escape from custody, of a person he reasonably believes to have committeed an offense because of resistance or threatened resistance of the arrestee. In addition to the use of physical force authorized under other sections of this chapter, he is . . . justified in the use of such physical force as he reasonably believes is immediately necessary to effect the arrest or to prevent the escape from custody.

(2) The use of any physical force in making an arrest is not justified . . . unless the arrest is lawful or the law enforcement officer reasonably believes the arrest is lawful.

(3) A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only. . . .

      . . .

(4) When he immediately believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested:

(a)      Has committed or attempted to commit a felony; or

(b)     Is attempting to escape by use of a deadly weapon; or

(c)      May otherwise endanger life or inflict serious physical injury unless arrested without delay.

(5) The defendant shall have the burden of injecting the issue of justification under this section.

 

Statutory Standard: Resisting Illegal Arrest

Consider the Arizona statute on resisting an illegal arrest.

Arizona Revised Statutes Annotated Section 13–404. Justification: Self-Defense

    . . .

B.  The threat or use of physical force against another is not justified:

    . . .

2. To resist an arrest that the person knows or should know is being made by a peace officer or by a person acting in a peace officer’s presence and at his direction, whether the arrest is lawful or unlawful, unless the physical force used by a peace officer exceeds that allowed by law. . . .

 

DEFENSE OF THE HOME

California, Homeowners Bill of  Rights.

Section 198.5: Excusable homicide.

Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred. 

As used in this section, great bodily injury means a significant
or substantial physical injury.

 

Fla. Stat. § 776.013 (2011)

776.013.  Home protection; use of deadly force; presumption of fear of death or great bodily harm

   (1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

   (a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and

   (b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

   (a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

   (b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

   (c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

   (d) The person against whom the defensive force is used is a law enforcement officer, as defined in § 943.104 (14) who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

(4) A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(5) As used in this section, the term:

   (a) "Dwelling" means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

   (b) "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

   (c) "Vehicle" means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

The Statutory Standard: Necessity

The Model Penal Code provision is followed by more than twenty states. Compare the Model Penal Code to the Wisconsin statute:

Wisconsin Statutes Section 939.47. Necessity

Pressure of natural forces which causes the actor reasonably to believe that his or her act is the only means of preventing imminent public disaster or imminent death or great bodily harm to the actor or another and which causes him or her so to act, is a defense to a prosecution for any crime based on that act, except that if the prosecution is for first-degree intentional homicide, the degree of the crime is reduced to second-degree intentional homicide.

Another approach is illustrated by the complex New York statute. Note the prohibition of the reliance on necessity by individuals motivated by social and political considerations.

New York Penal Law Section 35.05. Justification; Generally

Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when:

(1)   . . .

(2)  Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not result upon considerations pertaining only to the morality and advisability of the statute . . . [T]he court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense.

The Statutory Standard: Consent as a Defense

The Montana Criminal Code provision vests considerable discretion in courts concerning the justification defense of consent.

Montana Code Annotated Section 45–2-211. Consent as a Defense

(1) The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense.

(2) Consent is ineffective if:

(a)      it is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense;

(b)     it is given by a person who by reason of youth, mental disease or defect, or intoxication is unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense;

(c)      it is induced by force, duress, or deception; or

(d) it is against public policy to permit the conduct or the resulting harm, even though consented to.