Use of Force Law

Discussion in 'General Self Defense' started by Tgace, Sep 2, 2004.

  1. Tgace

    Tgace Grandmaster

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    As a source of discussion, as well as a refrence thread, I was hoping everybody would look up their state law regarding use of force. Or for those outside the US, whatever law applies.
     
  2. Tgace

    Tgace Grandmaster

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    New York State

    ARTICLE 35--DEFENSE OF JUSTIFICATION
    Section 35.00 Justification; a defense

    In any prosecution for an offense, justification, as defined in sections 35.05 through 35.30, is a defense.


    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. Such conduct is required or authorized by law or by a judicial decree, or is performed by a public servant in the reasonable exercise of his official powers, duties or functions; or

    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 rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. Whenever evidence relating to the defense of justification under this subdivision is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense.


    Section 35.10 Justification; use of physical force generally

    The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances:

    1. A parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one or an incompetent person, and a teacher or other person entrusted with the care and supervision of a person under the age of twenty-one for a special purpose, may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.

    2. A warden or other authorized official of a jail, prison or correctional institution may, in order to maintain order and discipline, use such physical force as is authorized by the correction law.

    3. A person responsible for the maintenance of order in a common carrier of passengers, or a person acting under his direction, may use physical force when and to the extent that he reasonably believes it necessary to maintain order, but he may use deadly physical force only when he reasonably believes it necessary to prevent death or serious physical injury.

    4. A person acting under a reasonable belief that another person is about to commit suicide or to inflict serious physical injury upon himself may use physical force upon such person to the extent that he reasonably believes it necessary to thwart such result.

    5. A duly licensed physician, or a person acting under his direction, may use physical force for the purpose of administering a recognized form of treatment which he reasonably believes to be adapted to promoting the physical or mental health of the patient if (a) the treatment is administered with the consent of the patient or, if the patient is under the age of eighteen years or an incompetent person, with the consent of his parent, guardian or other person entrusted with his care and supervision, or (b) the treatment is administered in an emergency when the physician reasonably believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.

    6. A person may, pursuant to the ensuing provisions of this article, use physical force upon another person in defense of himself or a third person, or in defense of premises, or in order to prevent larceny of or criminal mischief to property, or in order to effect an arrest or prevent an escape from custody. Whenever a person is authorized by any such provision to use deadly physical force in any given circumstance, nothing contained in any other such provision may be deemed to negate or qualify such authorization.


    Section 35.15 Justification; use of physical force in defense of a person

    1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:

    (a) The latter's conduct was provoked by the actor himself with intent to cause physical injury to another person; or

    (b) The actor was the initial aggressor; except that in such case his use of physical force is nevertheless justifiable if he has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or

    (c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

    2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:

    (a) He reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he knows that he can with complete safety as to himself and others avoid the necessity of so doing by retreating; except that he is under no duty to retreat if he is:

    (i) in his dwelling and not the initial aggressor; or

    (ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter's direction, acting pursuant to section 35.30; or

    (b) He reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or

    (c) He reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.


    Section 35.20 Justification; use of physical force in defense of premises and in defense of a person in the course of burglary

    1. Any person may use physical force upon another person when he reasonably believes such to be necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission by such other person of a crime involving damage to premises. He may use any degree of physical force, other than deadly physical force, which he reasonably believes to be necessary for such purpose, and he may use deadly physical force if he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of arson.

    2. A person in possession or control of any premises, or a person licensed or privileged to be thereon or therein, may use physical force upon another person when he reasonably believes such to be necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission by such other person of a criminal trespass upon such premises. He may use any degree of physical force, other than deadly physical force, which he reasonably believes to be necessary for such purpose, and he may use deadly physical force in order to prevent or terminate the commission or attempted commission of arson, as prescribed in subdivision one, or in the course of a burglary or attempted burglary, as prescribed in subdivision three.

    3. A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.

    4. As used in this section, the following terms have the following meanings:

    (a) The terms "premises," "building" and "dwelling" have the meanings prescribed in section 140.00;

    (b) Persons "licensed or privileged" to be in buildings or upon other premises include, but are not limited to, police officers or peace officers acting in the performance of their duties.


    Section 35.25 Justification; use of physical force to prevent or terminate larceny or criminal mischief

    A person may use physical force, other than deadly physical force, upon another person when and to the extent that he reasonably believes such to be necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission by such other person of larceny or of criminal mischief with respect to property other than premises.


    Section 35.27 Justification; use of physical force in resisting arrest prohibited

    A person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer or peace officer when it would reasonably appear that the latter is a police officer or peace officer.


    Section 35.30 Justification; use of physical force in making an arrest or in preventing an escape

    1. A police officer or a peace officer, in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he reasonably believes to have committed an offense, may use physical force when and to the extent he reasonably believes such to be necessary to effect the arrest, or to prevent the escape from custody, or to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force; except that he may use deadly physical force for such purposes only when he reasonably believes that:

    (a) The offense committed by such person was:

    (i) a felony or an attempt to commit a felony involving the use or attempted use or threatened imminent use of physical force against a person; or

    (ii) kidnapping, arson, escape in the first degree, burglary in the first degree or any attempt to commit such a crime; or

    (b) The offense committed or attempted by such person was a felony and that, in the course of resisting arrest therefor or attempting to escape from custody, such person is armed with a firearm or deadly weapon; or

    (c) Regardless of the particular offense which is the subject of the arrest or attempted escape, the use of deadly physical force is necessary to defend the police officer or peace officer or another person from what the officer reasonably believes to be the use or imminent use of deadly physical force.

    2. The fact that a police officer or a peace officer is justified in using deadly physical force under circumstances prescribed in paragraphs (a) and (b) of subdivision one does not constitute justification for reckless conduct by such police officer or peace officer amounting to an offense against or with respect to innocent persons whom he is not seeking to arrest or retain in custody.

    3. A person who has been directed by a police officer or a peace officer to assist such police officer or peace officer to effect an arrest or to prevent an escape from custody may use physical force, other than deadly physical force, when and to the extent that he reasonably believes such to be necessary to carry out such police officer's or peace officer's direction, unless he knows that the arrest or prospective arrest is not or was not authorized and he may use deadly physical force under such circumstances when:

    (a) He reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or

    (b) He is directed or authorized by such police officer or peace officer to use deadly physical force unless he knows that the police officer or peace officer himself is not authorized to use deadly physical force under the circumstances.

    4. A private person acting on his own account may use physical force, other than deadly physical force, upon another person when and to the extent that he reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he reasonably believes to have committed an offense and who in fact has committed such offense; and he may use deadly physical force for such purpose when he reasonably believes such to be necessary to:

    (a) Defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or

    (b) Effect the arrest of a person who has committed murder, manslaughter in the first degree, robbery, forcible rape or forcible criminal sexual act and who is in immediate flight therefrom.

    5. A guard, police officer or peace officer who is charged with the duty of guarding prisoners in a detention facility, as that term is defined in section 205.00, or while in transit to or from a detention facility, may use physical force when and to the extent that he reasonably believes such to be necessary to prevent the escape of a prisoner from a detention facility or from custody while in transit thereto or therefrom.
     
  3. Feisty Mouse

    Feisty Mouse Senior Master

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    Excellent idea. I have no idea what it is for Indiana.
     
  4. Tgace

    Tgace Grandmaster

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    Edmucate youself.....Some good search parameters are: <your state>/penal law/use of force/defense/justification.
     
  5. Feisty Mouse

    Feisty Mouse Senior Master

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    lol - I will be back when edumacated!
     
  6. laws ruin all the fun.The gist of what I understand of laws concerning defending yourself is that you are only allowed to use enough force to stop the attack,beating the dog out of em to make sure they never consider attacking you again is not allowed.
     
  7. dearnis.com

    dearnis.com Master Black Belt

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    Nice Topic; I'm away off for the weekend; will post Monday night.
     
  8. loki09789

    loki09789 Senior Master

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    That may be the general 'gist' but if you notice the details in NYS penal law/Article 35, you better be more versed than just the 'spirit of the law.' I notice many a comment about the unfairness of the law and how the law stacks the deck against the responsible citizen...well yeah. It is always harder on the person who is trying to act morally, responsible and with a respect for life and property. The guy who doesn't care will see more options everytime - because he doesn't CARE.

    Knowing the law better than 'gist' will help you stay out of jail, court and from crying 'that's not fair' because you know the 'rules of the game....'

    I may be a BB in this empty hand stuff, but Lawyers/LEO are the ranking experts in the letigious arena of self defense. Consulting them, understanding what documents/regulations they work from (ie the law) when dealing with me after or during a situation is a good thing to know.
     
  9. Sapper6

    Sapper6 3rd Black Belt

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    here is missouri state law regarding defense justification/use of force. would be neat to compare state to state to note differences :idunno:

     
  10. Tgace

    Tgace Grandmaster

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    Very similar to NY except for the battered spouse section.
     
  11. AnimEdge

    AnimEdge Guest

    Stuff i found for Texas:

    CIVIL PRACTICE & REMEDIES CODE
    CHAPTER 83. USE OF DEADLY FORCE IN DEFENSE OF PERSON
    Sec. 83.001. AFFIRMATIVE DEFENSE. It is an affirmative defense to a civil action for damages for personal injury or death that the defendant, at the time the cause of action arose, was justified in using deadly force under Section 9.32, Penal Code, against a person who at the time of the use of force was committing an offense of unlawful entry in the habitation of the defendant.

    Added by Acts 1995, 74th Leg., ch. 235, Sec. 2, eff. Sept. 1, 1995.


    Thats the uh only thing i can find so far
     
  12. 8253

    8253 Guest

    Sorry i dont have an ORC with me right now but as far as Ohio goes it is the use of force continuem, basically you can defend yourself physically up to and including deadly force only untill the threat is no longer present. Basically if a person hits you, you hit them back and they run away, you cant chase them down and commence to beating on them. One subject that i really dont agree with in the ORC is that if someone is breaking into you house to steal something, and not physically threating you, there is really nothing that you can physcally do to them. Fortunately, when you have fired several warning shots, they dont really stick around long to see if you will hurt them so they can sue you. :uzi:
     
  13. Tgace

    Tgace Grandmaster

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    [HINT]Section 9.32, Penal Code[/HINT] ;)
     
  14. Tgace

    Tgace Grandmaster

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    Thats different than NY...

    3. A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.

    The bolded part is where the lawyers will look to get ya'.
     
  15. JPR

    JPR Green Belt

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    Indiana law for any interested.

    ####################################################
    IC 35-41-3-2


    Use of force to protect person or property
    Sec. 2. (a) A person is justified in using reasonable force against another person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person is justified in using deadly force only if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.
    (b) A person is justified in using reasonable force, including deadly force, against another person if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling or curtilage.
    (c) With respect to property other than a dwelling or curtilage, a person is justified in using reasonable force against another person if the person reasonably believes that the force is necessary to immediately prevent or terminate the other person's trespass on or criminal interference with property lawfully in the person's possession, lawfully in possession of a member of the person's immediate family, or belonging to a person whose property the person has authority to protect. However, a person is not justified in using deadly force unless that force is justified under subsection (a).
    (d) A person is justified in using reasonable force, including deadly force, against another person if the person reasonably believes that the force is necessary to prevent or stop the other person from hijacking, attempting to hijack, or otherwise seizing or attempting to seize unlawful control of an aircraft in flight. For purposes of this subsection, an aircraft is considered to be in flight while the aircraft is:
    (1) on the ground in Indiana:
    (A) after the doors of the aircraft are closed for takeoff; and
    (B) until the aircraft takes off;
    (2) in the airspace above Indiana; or
    (3) on the ground in Indiana:
    (A) after the aircraft lands; and
    (B) before the doors of the aircraft are opened after landing.
    (e) Notwithstanding subsections (a), (b), and (c), a person is not justified in using force if:


    --------------------------------------------------------------------------------
    (1) the person is committing or is escaping after the commission of a crime;
    (2) the person provokes unlawful action by another person with intent to cause bodily injury to the other person; or
    (3) the person has entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action.
    (f) Notwithstanding subsection (d), a person is not justified in using force if the person:
    (1) is committing, or is escaping after the commission of, a crime;
    (2) provokes unlawful action by another person, with intent to cause bodily injury to the other person; or
    (3) continues to combat another person after the other person withdraws from the encounter and communicates the other person's intent to stop hijacking, attempting to hijack, or otherwise seizing or attempting to seize unlawful control of an aircraft in flight.

    As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.8; Acts 1979, P.L.297, SEC.1; P.L.59-2002, SEC.1.


    IC 35-41-3-3

    Use of force relating to arrest or escape
    Sec. 3. (a) A person other than a law enforcement officer is justified in using reasonable force against another person to effect an arrest or prevent the other person's escape if:
    (1) a felony has been committed; and
    (2) there is probable cause to believe the other person committed that felony. However, such a person is not justified in using deadly force unless that force is justified under section 2 of this chapter.
    (b) A law enforcement officer is justified in using reasonable force if the officer reasonably believes that the force is necessary to effect a lawful arrest. However, an officer is justified in using deadly force only if the officer:
    (1) has probable cause to believe that that deadly force is necessary: (A) to prevent the commission of a forcible felony; or (B) to effect an arrest of a person who the officer has probable cause to believe poses a threat of serious bodily injury to the officer or a third person; and
    (2) has given a warning, if feasible, to the person against whom the deadly force is to be used.
    (c) A law enforcement officer making an arrest under an invalid warrant is justified in using force as if the warrant was valid, unless the officer knows that the warrant is invalid.
    (d) A law enforcement officer who has an arrested person in custody is justified in using the same force to prevent the escape of the arrested person from custody that the officer would be justified in using if the officer was arresting that person. However, an officer is justified in using deadly force only if the officer:
    (1) has probable cause to believe that deadly force is necessary to prevent the escape from custody of a person who the officer has probable cause to believe poses a threat of serious bodily injury to the officer or a third person; and
    (2) has given a warning, if feasible, to the person against whom the deadly force is to be used.
    (e) A guard or other official in a penal facility or a law enforcement officer is justified in using reasonable force, including deadly force, if the officer has probable cause to believe that the force is necessary to prevent the escape of a person who is detained in the penal facility.
    (f) Notwithstanding subsection (b), (d), or (e), a law enforcement officer who is a defendant in a criminal prosecution has the same right as a person who is not a law enforcement officer to assert self-defense under IC 35-41-3-2.

    As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.9; Acts 1979, P.L.297, SEC.2; P.L.245-1993, SEC.1.
    ####################################################
    It seems pretty subjective to me because it is based upon what I "believe" a bad person is about to do and the level of threat they represent to me or to others. I am sure there is a ton of case law that better defines the rules.

    JPR
     
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  16. OULobo

    OULobo Senior Master

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    Then you get hit with the various discharging a firearms and endangerment charges. However I have heard a few officers tell me that they often showed up at a scene where the homeowner had apprehended and secured the suspect for the officer pre-LEO arrival. There were no charges or lawsuits against the homeowner and I would assume he use a modicum of force. Maybe the suspect didn't know he could sue.
     
  17. OULobo

    OULobo Senior Master

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    That's still better than we have here. That's the first law from NY that makes me want to move. It always seems tantamount to me to be able to defend the sanctity of a legal home by any means necessary.
     
  18. someguy

    someguy Master Black Belt

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    I'll get edumatacted after this weekend probably. If I remeber and nobody does it for me.
    Hmm Texan law I figured it would be if ya don't shoot 'em very very dead you get the chair.
     
  19. loki09789

    loki09789 Senior Master

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    I thought it was if you kill it you gotta clean it.....:)

    Seriously though, I have noticed, as has been mentioned the spirit of these laws are similiar ( I am NYS so the penal code is already up) but the specifics about what justifies (please read can keep you from being sentence for manslaughter or assault) use of force/deadly force can really indicate the 'flavor' of that particular region. Does anyone notice a 'midwest' tone to the laws of that area or a 'NorthEast' tone for that region as well?

    Tom pointed out the domestic portion having differences. Could regional culture be playing a part in that and if so how?
     
  20. Tgace

    Tgace Grandmaster

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