The Law Governing the Use of Force

The Use of Force The use of force on another is unlawful unless it is justified Justification requires a showing that a legally sufficient reason exists for the use of force Legally sufficient reasons generally require proof that: A. The other person is using or threatening to use unlawful force; B. The use of force is necessary; and C. The amount of force used is reasonable

“Unlawful” Force The unlawful force must be such as would constitute either a crime or a tort A. Unlawful force must be “imminent” Examples: No justification for immediate use of force in response to statement “I will beat you up tomorrow”; no defense to charge of carrying a concealed weapon that defendant worked in a high-crime area. Force used against known police officer in making arrest is not justified, even if arrest is illegal A. If officer uses excessive force, force becomes unlawful and response with force can be justified

Necessity The person using force must have reasonable belief force was necessary response to unlawful force A. An honest but unreasonable belief does not permit use of force B. A reasonable belief that is in fact in error may still justify the use of force Example: If a person has a reasonable belief an attacker has a weapon in his pocket and means to use it, he may use force, even if in fact no such weapon exists Most courts determine “reasonable” from the circumstances surrounding the person using force Example: The fact that a person had been repeatedly attacked in past is a factor in evaluating the belief an attack is imminent

Amount of force Non-deadly force may be used in response to unlawful force A. No duty to retreat B. May be used in self-defense and defense of others, and in most jurisdictions in defense of property Deadly force may be used only in response to deadly force or threat of serious bodily injury A. In significant minority of states must retreat before using deadly force, though even there only if retreat can be done in complete safety (1) “Stand your ground” laws permit use of force, including deadly force if necessary, with no duty to retreat B. No duty to retreat if attacked in one’s home (1) While in theory a reasonable belief that the unlawful force threatens death or serious bodily injury is required, many (perhaps most) states presume unlawful entry to a home presents such a threat C. Generally can’t be used in defense of property (other than a dwelling) unless unlawful force presents threat of death or bodily injury

Use of Force by Wrongdoer One who begins an unlawful attack is not justified in using force in response to force used by victim. The victim’s force is not unlawful If a victim of a non-deadly force responds with deadly force the original wrongdoer regains the right to use necessary force A. Former aggressor has duty to retreat B. If the original wrongdoer has clearly withdrawn from the confrontation, the right to use necessary force is restored If one intentionally provokes another to use of unlawful force, many state statutes provide the right of self-defense is lost

The Battered Woman Defense Force used, deadly or non-deadly, is not justified based only on past unlawful attacks A. Threat of attack must be imminent at time force is used B. Past attacks relevant to determination if battered spouse’s belief in threat of force is reasonable Though not a complete defense, in homicide case the “battered woman” defense, often called “imperfect self- defense”, can be used to reduce the crime to manslaughter

Mary Winkler was accused of murdering her husband, a preacher, with a shotgun and was tried for first-degree murder. At her trial she admitted shooting her husband but testified in her defense that her husband psychologically and sexually abused her. The jury found her guilty of voluntary manslaughter on April 19, Winkler was sentenced to three years in prison, which under state law required her to serve at least 210 days. The defense of spousal abuse, although usually not a complete defense to a crime charged, can often lead to a reduced charge or conviction for a lesser crime, as it did in Winkler’s case.

Use of Force Prior to Arrest Generally speaking, police officers may use reasonable, necessary force in dealing with the public, including making arrests, controlling crowds, and so forth Deadly force may not be used by police to make an arrest unless they have a reasonable belief the person presents an imminent risk of death or bodily harm to the police officer or others A. Police may not use deadly force merely to stop a fleeing suspect unless (1) The suspect is armed and has threatened the police officer, or (2) There is probable cause to believe the suspect committed a crime that caused serious bodily injury; (3) Duty to warn only if “feasible”

Use of Force After Arrest Once in custody, police use of force is generally determined by rules applicable to self defense and defense of others A. Need for police to enforce discipline and maintain order is a factor in amount of force lawful Where offenders are in prison or otherwise detained: A. Same force justifiable in making arrest is justifiable to prevent escape of arrested person B. Prison or jail guards may use any force, including deadly force, to prevent an escape

Crime Prevention Any person, not only police officers, may use reasonable force to prevent a crime from being committed Deadly force may only be used to prevent the commission of “dangerous” felonies A. “Dangerous” felony often held to refer to type of crime that includes violence or bodily injury, i.e., murder, rape, arson, kidnapping Example: One could use deadly force to prevent burglary, because it involves the threat of violence or serious bodily injury B. Some courts follow the Model Penal Code’s approach, which limits use of deadly force to those crimes where the person committing the crime is reasonable believed to present a threat of death or serious bodily harm if the crime is not prevented Example: If a person is confronted in the process of burning a building known to be empty, even though arson is a “dangerous” crime, rules like the Model Penal Code would say deadly force is not justified

Specific Police Actions Reasonable force can be used to compel suspect to give blood or urine sample A. Must have reasonable cause to believe suspect violated law B. Must use reasonable means to obtain sample Use of mechanical or other devices in making arrests A. Handcuffs may be used, and reasonable force used to apply them B. Choke-holds may be used where reasonably necessary, but only by those with training C. Tasers may be used to incapacitate a suspect, but only if reasonably necessary to aid the officer in the arrest or investigation

Disciplining Children Parents or others who have custody of minor children may use reasonable force for discipline purposes Schools may use reasonable force to discipline children A. Prohibited by statute in many states B. Where permitted must follow strict procedures such as informing school officials, and dispensed under supervision C. Only for violations of school regulations, and on school premises