Model Penal Code 3.05

Uniform Laws Annotated Currentness

Model Penal Code (Refs & Annos)

Part I. General Provisions

Article 3. General Principles of Justification

3.05. Use of Force for the Protection of Other Persons.



(1) Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward the person of another is justifiable to protect a third person when:

(a) the actor would be justified under Section 3.04 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect; and

(b) under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force; and

(c) the actor believes that his intervention is necessary for the protection of such other person.


(2) Notwithstanding Subsection (1) of this Section:

(a) when the actor would be obliged under Section 3.04 to retreat, to surrender the possession of a thing or to comply with a demand before using force in self-protection, he is not obliged to do so before using force for the protection of another person, unless he knows that he can thereby secure the complete safety of such other person; and

(b) when the person whom the actor seeks to protect would be obliged under Section 3.04 to retreat, to surrender the possession of a thing or to comply with a demand if he knew that he could obtain complete safety by so doing, the actor is obliged to try to cause him to do so before using force in his protection if the actor knows that he can obtain complete safety in that way; and

(c) neither the actor nor the person whom he seeks to protect is obliged to retreat when in the other's dwelling or place of work to any greater extent than in his own.


EXPLANATORY NOTE

2001 Main Volume

Subsection (1) states the basic rule of justification for the use of force to protect other persons. In sum, the rules are the same as those that govern self-defense. There are three basic conditions to be met: force is justified if (a) the actor would be justified under Section 3.04 in using such force to protect himself against the injury he believes to be threatened to the other person; (b) under the circumstances as the actor believes them to be, the other person would be justified in using protective force; and (c) the actor believes that his intervention is necessary for the protection of the other person.

Subsection (2) assimilates the rules of Section 3.04 regarding retreat, surrender of possession, and compliance with demands to situations in which the actor is seeking to protect another person. Retreat, surrender of possession and compliance with demands are not required of the actor unless he knows that he can thereby secure the complete safety of the other person. When retreat, etc. would be required of the person the actor seeks to protect, the actor is obliged to try to cause the other person to do so if he knows that complete safety can be achieved in that manner. And neither the actor nor the other person is obliged to retreat when in the other's dwelling or place of work to any greater extent than when in his own.

For detailed Comment, see MPC Part I Commentaries, vol. 2, at 63.

LIBRARY REFERENCES

2001 Main Volume

Assault and Battery Key Number graphic68; Homicide Key Number graphic122

Westlaw Topic Nos. 37, 203

C.J.S. Assault and Battery 93; Homicide 108


NOTES OF DECISIONS

Generally 1

Arrest or acts by law enforcement officers 3

Deadly force 2

Duty to retreat 4

Ignorance of provocation by person protected 5

Instructions 8

Reasonable belief 2.5

Resisting arrest 6

Weight and sufficiency of evidence 7

 

1. Generally


Doctrine of defense of others applies if defendant reasonably believed that the person he sought to aid was unlawfully attacked and that the force used was necessary to protect the person from the attack. State v. Josephs, N.J.2002, 803 A.2d 1074, 174 N.J. 44. Homicide Key Number graphic757

Reasonableness of defendant's belief that use of force on his own part was necessary to defend another is judged from perspective of reasonable person in defendant's position under circumstances existing at time he intervened. State v. Bryant, N.J.Super.A.D.1996, 671 A.2d 1058, 288 N.J.Super. 27, certification denied 677 A.2d 761, 144 N.J. 589. Homicide Key Number graphic757

Defendant was not justified in using sword during assault allegedly to protect friend who had fled and was no longer in danger; victim and his group of friends did not threaten any type of unlawful force against defendant's friend. Com. v. Hudgens, Pa.Super.1990, 582 A.2d 1352, 400 Pa.Super. 79. Assault And Battery Key Number graphic68

Third party is entitled to come forcefully to aid of person being placed under arrest by known police officer only if officer is employing or threatening excessive force which third party reasonably believes subjects arrestee to serious bodily injury or death. Com. v. French, Pa.Super.1990, 578 A.2d 1292, 396 Pa.Super. 436, affirmed 611 A.2d 175, 531 Pa. 42. Assault And Battery Key Number graphic68

Although burden of disproving justification of defense of another is upon the State, there must be enough evidence to support its application; specifically, record must provide rational basis upon which jury could find that defendant acted in defense of another. State v. Martinez, N.J.Super.A.D.1989, 552 A.2d 232, 229 N.J.Super. 593. Criminal Law Key Number graphic330

Use of force for protection of third person is justified when actor: (1) reasonably believes that force is necessary to protect other; (2) reasonably believes that his intervention is necessary for that protection; and (3) uses only that degree of force appropriate to protect person he believes to be threatened. State v. Holmes, N.J.Super.A.D.1986, 506 A.2d 366, 208 N.J.Super. 480. Assault And Battery Key Number graphic68

A claim that homicide constitutes a justifiable defense of oneself or another requires that the slayer: (1) be free from fault in provoking or continuing the difficulty which resulted in the slaying; (2) reasonably believe that there is a danger of death or great bodily harm; and (3) has not violated any duty to retreat or avoid the danger. Com. v. Laurin, Pa.Super.1979, 409 A.2d 1367, 269 Pa.Super. 368. Homicide Key Number graphic766; Homicide Key Number graphic757

2. Deadly force


Use of deadly force in defense of self or another cannot be justified unless actor reasonably believes that such force is necessary to avoid death or serious bodily harm. Com. v. McGuire, Pa.1979, 409 A.2d 313, 487 Pa. 208. Homicide Key Number graphic795; Homicide Key Number graphic757

2.5. Reasonable belief


In order to exculpate defendant on substantive charges of attempted murder and aggravated assault, his belief in need to use force to defend his wife had to have been "reasonable"; thus, if jury found that his belief in need to use force to protect his wife was honest but unreasonable, he could not have been excused from liability for substantive offenses of attempted murder and aggravated assault. State v. Williams, N.J.2001, 774 A.2d 457, 168 N.J. 323. Assault And Battery Key Number graphic68; Homicide Key Number graphic757

3. Arrest or acts by law enforcement officers


Defendant who used force on police officers claiming that they were attacking his brother was only entitled to justification defense in aggravated assault prosecution if he reasonably believed that his intervention was necessary to protect brother from unlawful use of deadly force by officers. Com. v. Finkey, Pa.Super.1992, 603 A.2d 651, 412 Pa.Super. 419, appeal denied 620 A.2d 489, 533 Pa. 623, on remand 23 Pa. D. & C.4th 540. Assault And Battery Key Number graphic68

4. Duty to retreat


Neither defendant nor her niece violated any duty to retreat in respect to fatal incident, and defendant was not precluded from employing defense in manslaughter prosecution of acting in defense of her niece to prevent a felony, where defendant's niece stood in doorway of her own dwelling house, a "no retreat" area, and defendant, who assumed same rights and limitations as her niece, similarly had no duty to retreat; even if she had such a duty, duty was not violated where defendant could neither fall back, being obstructed by her niece, nor descend steps to face an armed attacker. Com. v. Jackson, Pa.1976, 355 A.2d 572, 467 Pa. 183. Homicide Key Number graphic802

5. Ignorance of provocation by person protected


Defendant is justified in using force to defend another if defendant reasonably believed both that person he sought to aid was unlawfully attacked and that force used was necessary to protect that person from attack; whether person defendant sought to protect was actually aggressor in situation is irrelevant if unknown to defendant. State v. Bryant, N.J.Super.A.D.1996, 671 A.2d 1058, 288 N.J.Super. 27, certification denied 677 A.2d 761, 144 N.J. 589. Homicide Key Number graphic757

Defendant can act reasonably to protect another who he believes is in need of protection when he comes upon scene unaware of "provocation" caused by person he endeavors to protect. State v. Holmes, N.J.Super.A.D.1986, 506 A.2d 366, 208 N.J.Super. 480. Assault And Battery Key Number graphic68

6. Resisting arrest


Use of force against arresting officer in self-protection or for protection of another is justified by reasonable belief that such force is immediately necessary to protect against arresting officer's use of unlawful and deadly force capable of causing death or serious bodily injury; although arresting officer's use of excessive force capable of causing less than serious bodily injury or death can be vindicated by recourse to subsequent legal remedies, one's bodily integrity is not adequately protected by those same means when arresting officer uses excessive, deadly force. Com. v. French, Pa.1992, 611 A.2d 175, 531 Pa. 42. Assault And Battery Key Number graphic67; Assault And Battery Key Number graphic68

7. Weight and sufficiency of evidence


Where fact finder indicated he did not believe victim had been the aggressor or had given anyone reason to believe that he was putting anyone in imminent danger of death or serious bodily injury and witness testified that victim did not have a gun on his person at time of fatal attack, finding that defendant's actions were not justified under this section governing use of force for protection of other persons was not contrary to weight of evidence. Com. v. Cooke, Pa.Super.1979, 405 A.2d 1290, 267 Pa.Super. 34. Homicide Key Number graphic1202

8. Instructions


Trial court properly instructed jury that defendant charged with aggravated assault, resisting arrest, and conspiracy in connection with attack on police officer arresting her boyfriend could use force only if she believed it was reasonably necessary to protect against serious bodily injury or death; however, trial court should also have instructed that only unlawful use of deadly force by arresting officer would justify defendant's use of force. Com. v. French, Pa.1992, 611 A.2d 175, 531 Pa. 42. Assault And Battery Key Number graphic68; Conspiracy Key Number graphic38; Obstructing Justice Key Number graphic8

In homicide prosecution, trial court's charge to jury correctly explained that under section 505 of this title and this section concerning use of force in self-protection or for protection of others, in order for justification of homicide, one's belief had to be reasonable, while unreasonable belief of circumstances set forth in these sections would be sufficient to sustain verdict of voluntary manslaughter. (Per O'Brien, J., with one Justice and the Chief Justice concurring and two Justices concurring in result.) Com. v. Simmons, Pa.1978, 394 A.2d 431, 482 Pa. 496. Homicide Key Number graphic1487; Homicide Key Number graphic1489

Model Penal Code 3.05, ULA PENAL CODE 3.05


Copr. (C) Thomson/West 2005. All rights reserved. Uniform Rules of
Criminal Procedure Reproduced with Permission of the National Conference
of Commissioners on Uniform State Laws; Model Penal Code Official
Text Reproduced with Permission of the American Law Institute.
Current through 2004 Annual Meeting of
American Law Institute (5/2002).
END OF DOCUMENT