CHAPTER THREE

This section covers the elements necessary for the lawful use of both deadly and non-deadly force as they relate to self-defense; defense of other persons, premises, or property; or when making an arrest. The law is examined as it applies both to private citizens and to law enforcement officers.

I. Justification Defense.

A. Generally conduct which is otherwise criminal can be justified and thus non-criminal because of the circumstances in which it occurs.

OBJECTIVE #12 -

Identify the basics of civil liability and how civil remedies can be unaffected by the criminal code. MCCH - Ch.3.2 THE JUSTIFICATION RULES APPLY ONLY TO CRIMINAL LIABILITY AND ARE A DEFENSE TO A CRIMINAL CHARGE. MAY BE CIVIL LIABILITY.

1. To satisfy Missouri law, conduct which would otherwise constitute any crime other than a Class A Felony or murder is justified and not criminal when it is "necessary" as an:

Elements:

A. Emergency measure taken to avoid

B. An imminent (i.e., time factor, no reasonable alternative available) public or private injury which developed

C. Through no fault of actor

D. And the situation is of such gravity and

E. According to ordinary standards of morality and intelligence.

2. Worksheet Question No. 1. Actual case State v. Wyatt , 800 S.W.2d 480 (Mo. App. 1990). Defendant argues no one else available to drive son, that he was driving only to prevent his son from driving while drunk. What do you think? Court says not necessary for Defendant to drive.

3. Example - Defendant sees a forest fire bearing towards a town. Believes only way to stop fire is to set backfire which would destroy a victims home. Defendant sets fire. Does Defendant have a defense if he is charged with arson? Yes. Burning of home only way to prevent greater harm. Necessity defense.

II. Public Duty Defense (3.3 in book)

A. Example - You are in possession of what you reasonably believe is a valid search warrant. As a police officer, you serve the warrant. Though no fault of yours, the wrong address is on the warrant and now the owner of the home, mistakenly searched wants the prosecutor to prosecute you for trespassing. Do you have a defense? Yes.

B. Your conduct is not criminal if you reasonably believe:

1. Conduct required or authorized by court or

2. Conduct required or authorized to assist public servant in performance of duties.

Note that the justifications which appear in the Criminal Code apply only to criminal liability. May still be liable civilly.

III. Use of Force. Justified under the law. Note: This is in the justification chapter because every use of force would constitute an offense except the law defines when justified by defining a defense.

OBJECTIVE #1 -

Use of force in defending persons - Identify the basic requirements for the legal use of non-deadly force in self-defense or the defense of other persons. MCCH - Chs. 3.4 and 3.5

1. Non-deadly force - When is any citizen justified in using non-deadly force against another person?

Question 2:

a. General Rule - A person may use physical force upon another when and to the extent he reasonably believes such is necessary to defend himself or a third party from what he reasonably believes to be the use of the immediate risk of unlawful force by such other person.

Answer: Did S reasonably believe such force was necessary to defend from immediate risk of unlawful force. Yes.

a. No, not reasonable to use deadly force in this situation.

Exceptions to general rule.

OBJECTIVE #14

1. The actor was the aggressor. Example - Don goes to Victor's house to buy some dope. While there, he tells Donna he wants her to leave with him and spend the night. Donna says no. Don says I'll be back to pick you up. Don goes and gets a shotgun. Goes back to the house. From the front porch he yells for her to come out but she did not come out. He fires a shotgun blast through the front door, and leaves. Don calls Victor back and says if Donna does not come out, I'll take her out by force. This is war. Don goes back to the house. Gets out carrying his shotgun. A friend of Victor's, who was inside, ends up dead. Can Don claim self defense? He provoked the use of force (a) shotgun blast (b) threats to Donna (c) entered property carrying weapon. 610 S.W.2d 1.

Note - Works same way in use of non-deadly. If the actor is the initial aggressor then he cannot claim use of force was justified.

But there are two exceptions to the exception. Even if the actor was the initial aggressor a use of force is still justified if:

Exception 1:

1. Actor has withdrawn from the encounter;

2. And has effectively communicated the withdrawal to the others but

3. D. later persists in continuing the incident by use of or threatening the use of unlawful force i.e. revenge.

Take the guns out of our example. Let's say it's all just words and Don gets out of the car and Victor meets him on the sidewalk. Don says Okay, Okay, I'm leaving and Victor says, "no you're still threatening me" and grabs Don as he is getting in the car and hits him. Can Victor still say I was justified to hit Don because I thought he was still a threat? No. Don had withdrawn.

Exception 2:

The original aggressor is a police officer. Police officers can be the aggressor and need not retreat or withdraw to effect arrest of one he reasonably believes committed the offense.

OBJECTIVE #2 -

Use of Deadly Force in Defense of Persons (all citizens) - Identify the requirement(s) for the legal use of deadly force in either self-defense or the defense of other persons. MCCH - Ch. 3.5

a. A person may not use deadly force upon another unless he reasonably believes such force is necessary to protect himself or another against death, serious physical injury, rape, sodomy or kidnaping or serious physical injury through robbery, burglary or arson.

OBJECTIVE # 3 -

Use of Force in Defending Premises - Identify the requirements for the legal use of deadly and non-deadly force in the defense of premises. MCCH - Ch. 3.7

1. Non-Deadly -

a. Applies to person in possession of or control of premises or a person who is licensed or privileged to be there.

b. May use non-deadly force to extent that he reasonably believes it is necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of trespass.

2. Deadly Force - Only if actor.....

a. Reasonably believes necessary to prevent what he reasonably believes to be an attempt by the trespasser to commit arson or burglary upon his dwelling. See Page 29

b. But remember - If you are lawfully repelling a trespasser, other self defense provisions apply. Deadly force may be justified to defend oneself even if not justified to defend the premises.

c. Example - Worksheet Question 3.

3a: What is the defense Defendant will try to use? Self-defense. All Robert did was try to hit Daniel. How is deadly force not excessive force?

Answer: There is no privilege to use deadly force against non-deadly attack. In Missouri, Defendant must have done everything in power - consistent with his own safety - to avoid the danger. Defendant ran out of the house, didn’t retreat.

3b: But what about if Defendant Robert was at the doorway or trailer trying to force his way back in. Daniel says, "I though he had a gun." There is not a retreat rule in defense of premises. May have made Defendant's defense more valid. Deadly force because of burglary. Reasonably because of everything else. This is what actually happened. Court reversed conviction, ordered new trial and ordered jury be instructed differently.

3c: Even cleaner - preventing arson.

OBJECTIVE #4 -

Use of Force to Defend Personal Property - Identify the requirements for the legal use of deadly and non-deadly force in the defense of property. MCCH - Ch. 3.8

Justified in using non-deadly force to protect property if he reasonably believes another is committing or attempting to commit stealing, property damage or tampering...

1. Worksheet Question 4a - How many believe Donald is guilty of assault? How can he be "not guilty" if there is not a commission or attempted commission of stealing, property damage or tampering. Tampering. All this guy is doing is sitting in the car.

b. Justified in defense of personal property if actor reasonably believes it is necessary to prevent what he reasonably believes to be the commission of stealing, property damage or tampering. Defendant may have been reasonable in his acts, but there may be some problems with technically whether a crime was being committed, stealing, etc. Best bet is use legal process. Still his acts were probably reasonable.

What if Donald had used deadly force to retake property?

1. Deadly force never justified simply to protect personal property. General rule is that amount of force must be reasonable in relation to the harm to be avoided. Deadly force never authorized unless it becomes necessary under other provisions (defense of persons or self-defense)

OBJECTIVE #9 -

Identify when a private person is justified in using deadly and non-deadly force in making an arrest. MCCH - Ch. 3.11

Private Citizen's Use of Force in making arrest (or preventing escape)

1. Private Citizen justified to use non-deadly force in making an arrest if officer asks for his assistance, or private citizen may arrest on his own and use non-deadly force to make the arrest if be has a reasonable belief crime was committed and suspect in fact did commit crime. How does that differ from Police Officer? An officer need only reasonable believe to justify force in making an arrest.

2. Private citizen may only use deadly force if directed by a law enforcement officer AND if he reasonably believes the use of deadly force is authorized under the circumstances or if acting alone, can use it to effect an arrest or prevent an escape only if he reasonably believes it immediately necessary to effect an arrest of someone who at that time and in his presence (a) committed or attempted to commit murder or a Class A felony or is attempting to escape by using a deadly weapon.

E. Review:

1.Question (B.1.a) False

Question (B.1.b) Yes.

OBJECTIVE #5 -

Use of Force by Law Enforcement Officer in making arrest. Identify the requirements for the legal use of deadly and non-deadly force when a law enforcement officer is making an arrest. MCCH - Ch. 3.9

1. Non-Deadly Force - Officer (like anyone else) can use it in self-defense. THE difference is what? Officer justified in being the aggressor when undertaking a lawful arrest or preventing escape from custody. Need not retreat or withdraw to effect arrest of one he reasonably believes to have committed the offense.

a. Amount - As much as he reasonably believes is necessary so long as not excess. You will be trained as to what is our policy which helps define reasonable.

2. Deadly Force - Example (4a) How many believe this is justified?

OBJECTIVE #6 -

State the Supreme Court ruling (Tennessee v. Garner, 3/27/85) regarding the use of deadly force against a fleeing felon. MCCH - Ch. 3.9 / NOTE

a. The U.S. Supreme Court decided Tennessee v. Garner in 1985. Civil suit by family. Old Tennessee law said "If after notice of intention to arrest a suicidal fellow; and fellow flees, officer may use all necessary means to effect arrest." Supreme Court says that deadly force is seizure under Fourth Amendment.

Force is reasonable only if the intrusion (killing) outweighs the government's interest. Thus, Court said; "Deadly force may be used to prevent escape where reasonably necessary to prevent escape and officer has probable cause to believe suspect poses threat of serious physical injury to others and no other means of capture is available and warning has been given."

b. Supreme Court says:

(1) Death defeats system of justice;

(2) Effect on violence - not better that all felons die rather than escape

(3) Common law rule irrelevant as concept from England was all felonies punishable by death

(4) Bottom line - police cannot seize unarmed suspect by shooting him dead. May use deadly force to arrest if circumstances fit within definitions of all self defense or defense of another.

OBJECTIVE #7 -

Explain why Missouri Revised Statute 563.046 is probably in violation of the 4th Amendment of the United States Constitution. MCCH - Ch. 3.9 / NOTE

c. The current Missouri statute probably is unconstitutional and in violation of the Fourth Amendment. It allows deadly force merely if the officer reasonably believes that the person has committed a felony. Would only apply to charging officers with crime - not to civil liability.

OBJECTIVE #11 - Remember department policy also - you may not go to jail but you will not have a job either if you violate our policy. Officers must conform to a more restrictive department policy even if the law allows more. Both state and federal court decisions have ruled that when a more restrictive departmental policy is in effect, officers must conform to the more restrictive departmental policy.

OBJECTIVE #10 -

Identify when deadly and non-deadly force may be used legally to prevent an escape from confinement. MCCH - Ch. 3.16

Use of Force to Prevent Escape from Confinement - Law Enforcement:

1. Non-deadly - Reasonable belief such is necessary immediately to prevent escape from confinement or in transit thereto or there from.

2. Deadly - Unless self-defense or defense of others officers must have reasonable belief that there is substantial risk that the escape will endanger human life or cause serious physical injury unless escape is prevented. Question 4b.

Private Citizen - see D. above

OBJECTIVE #8 -

State a law enforcement officer's powers of arrest jurisdictionally, and when may an officer possess a firearm outside of their jurisdictional boundaries. MCCH - Chs. 3. 10 and 10.3 to 10.4

Arrest powers - General rule used to be that you must be inside your jurisdiction or no power of arrest. But, new statute that allows officers in fresh pursuit of certain people to leave their jurisdiction as long as they do not lose sight of the person and arrest them just as if they were in their own city. Read Legal Bulletin on this subject.

According to the Missouri Attorney General, officers carry a concealed weapon anywhere in the state.

OBJECTIVE #13 -

Go over the Procedural Instruction on Use of Force.

Identify provisions of his/her department’s policy regarding the use of deadly and non-deadly force. Based on learner’s department policy or the IACP use of Force Police. Bring a copy to class (should be an assignment prior to this section.)

Note - Objective #14 (Given a variety of classroom role play scenarios, describe the appropriate reaction to the situations and the appropriate amount of force to be used in response to the perceived threat. Performance objective based on application of material from the previous objectives. Roles are played by class members or are presented in written form and trainees are asked to analyze the situation, describe an appropriate response, including a decision regarding appropriate force.)

For this objective, see the Practical Application section taught by the Academy Staff.

Revised 4/01