5.3 Other Use-of-Force Defenses

Defense of Others

According to early common law, a defendant could use force to defend another only when the defendant and the person defended had a special relationship, such as a family connection. Most jurisdictions now reject this common-law restriction on defense of others and allow a defendant to defend anyone to the same degree that he or she could use self-defense (People v. Kurr, 2010). Thus in a majority of jurisdictions, defense of others requires the same elements as self-defense: the individual defended must be facing an unprovoked, imminent attack, and the defendant must use a reasonable degree of force with a reasonable belief that force is necessary to repel the attack.

Occasionally, a defendant uses force to defend another who has no legal right to use force in self-defense. Under the common law, the defendant could not use force legally if the individual defended could not use force legally in self-defense. However, the majority of states now allow a defendant to use force to defend another person if it reasonably appears that use of force is justified under the circumstances (Commonwealth v. Miranda, 2010). The Model Penal Code allows the defense of another when “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” (Model Penal Code § 3.05(1) (b)). Thus if the defendant has a subjective belief that the individual defended could use force legally in self-defense, defense of others is appropriate under the Model Penal Code.

Defense of Property

All jurisdictions allow individuals to use force in defense of property under certain specified circumstances. Property can be real or personal. Real property is land and anything permanently attached to it. This includes a home. However, defense of the home is discussed in Section 5.3.3 “Defense of Habitation”. Personal property is any movable object.

In the majority of states, the defendant can use force only to defend real or personal property if the defendant has an objectively reasonable belief that an imminent threat of damage, destruction, or theft will occur (California Criminal Jury Instructions, 2010). The Model Penal Code provides “the use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary: (a) to prevent or terminate an unlawful entry or other trespass upon land or a trespass against or the unlawful carrying away of tangible, movable property” (Model Penal Code §3.06(1) (a)). Thus if the defendant has a subjective belief that force is immediately necessary to protect real or personal property, force is appropriate under the Model Penal Code.

The amount of force that a defendant may legally use to protect real or personal property is reasonable force, under the circumstances (K.S.A., 2010). The defendant can also chase someone who steals personal property and take the item back (Conn. Gen. Stat., 2010). The Model Penal Code provides “the use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary…to retake tangible movable property” (Model Penal Code §3.06(1) (b)). In general, the Model Penal Code and most states do not authorize the use of deadly force to protect property (other than the home) under any circumstances (Fla. Stat. Ann., 2010).

Defense of Habitation

Defense of habitation is a defense that applies specifically to the defendant’s residence. At early common law, a person’s home was as sacred as his or her person, and deadly force could be employed to protect it. The majority of states have since enacted modern castle laws that embody this common-law doctrine. Other than the use of deadly force, defense of habitation generally follows the same rules as defense of property, self-defense, and defense of others. Thus this defense of habitation discussion focuses primarily on the use of deadly force.

The first state to expand the defense of habitation to include the use of deadly force was Colorado, with its “make my day” self-defense statute (Colo. Rev. Stat. Ann., 2010). In 2005, Florida began a wave of castle law modifications that resulted in most states revising their defense of habitation laws (Fla. Stat. Ann., 2010). Generally, three elements must be present before the use of deadly force is appropriate to defend habitation under modern castle laws. First, the intruder must actually enter or be in the process of entering the residence owned by the defendant (Fla. Stat. Ann., 2010). This excludes intruders who are outside or in the curtilage, which is the protected area around the home. Second, the residence must be occupied when the entry occurs. This excludes devices like spring-guns that protect unoccupied dwellings with deadly force (People v. Ceballos, 2010). Third, the defendant must have an objectively reasonable belief that the intruder intends to commit a crime of violence against the occupant(s) after entry (Or. Rev. Stat., 2010). The Model Penal Code provides “[t]he use of deadly force is not justifiable…unless the actor believes that…the person against whom the force is used is attempting to dispossess him of his dwelling…or…attempting to commit…arson, burglary, robbery or other felonious theft…and either…has employed or threatened deadly force…or…the use of force other than deadly force would expose the actor or another in his presence to substantial danger of serious bodily harm” (Model Penal Code § 3.06 (3)(d)).

The majority of states’ castle laws abolish any duty to retreat when inside the home (Alaska Stat., 2010). Florida’s castle law creates a presumption that the defendant has a reasonable fear of imminent peril of death or great bodily injury when the intruder makes an unlawful or forceful entry (Fla Stat. Ann., 2010). This compels the prosecution to disprove the defendant’s reasonable belief of death or great bodily injury beyond a reasonable doubt, which is extremely difficult. Additional features of many castle laws are civil immunity and criminal immunity from prosecution (720 ILCS, 2010). Immunity from prosecution means that a defendant who complies with the castle law requirements cannot be sued for damages or prosecuted for a crime based on injury or death to the intruder.

Use of Force in Arrest and Apprehension of Criminal Suspects

Occasionally, law enforcement must use force to effectuate an arrest or apprehend a criminal suspect. The appropriate use of force during an arrest or apprehension can operate as a defense to assault, battery, false imprisonment, kidnapping, and criminal homicide. At early common law, law enforcement could use reasonable, nondeadly force to arrest an individual for a misdemeanor and reasonable, even deadly force, to arrest an individual for any felony. Modern law enforcement’s ability to use deadly force is governed by the US Constitution.

The US Supreme Court clarified the constitutional standard for law enforcement’s use of deadly force in Tennessee v. Garner, 471 U.S. 1 (1985). In Garner, the Court invalidated a Tennessee statute that allowed law enforcement to exercise any degree of force to apprehend and arrest a fleeing felon. The law enforcement officer in Garner admitted that he shot and killed a suspect, reasonably believing he was unarmed. The Court held that the Fourth Amendment governed law enforcement’s use of deadly force in this situation because the use of deadly force is a seizure. Thus law enforcement’s use of deadly force must be scrutinized pursuant to the standard of constitutional reasonableness. According to the Court, the only constitutionally reasonable circumstances under which law enforcement can use deadly force to arrest or apprehend a fleeing felon is when law enforcement has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.

Currently, most jurisdictions have statutes protecting law enforcement’s reasonable use of force when effectuating an arrest or apprehending a fleeing suspect. Under Garner, these statutes must restrict the lawful use of deadly force to potentially deadly situations. If a law enforcement officer exceeds the use of force permitted under the circumstances, the law enforcement officer could be prosecuted for a crime or sued for civil damages (or both).