§ 18.06 Model Penal Code

§ 18.06 Model Penal Code

[A] General Rules

[1] Force, in General

[a] Permissible Use

Subject to various limitations, a person is justified in using force upon another person if he believes that such force is immediately necessary to protect himself against the exercise of unlawful force184 by the other individual on the present occasion.185 Special issues relating to use of deadly force in self-protection are considered in subsection [2].

This rule diverges from the common law in two noteworthy ways. First, it is drafted in terms of the actor's subjective belief in the need to use force; his belief need not be reasonable. However, nearly all of the Code justification defenses, including the defense of self-protection, are modified by Section 3.09, which reincorporates a reasonableness component, although not in the fashion of the common law. This important feature of the Code is discussed in subsection [B] below.

Second, and quite significantly, the Code substitutes the phrase "immediately necessary . . . on the present occasion," for the common law imminency requirement. This shift in language authorizes self-protective force sooner than may be allowed at common law. This is because the issue under the Code is not how soon the aggressor's force will be used, but instead whether the innocent person's need to use defensive force exists immediately. For example, suppose that V, an abusive husband, tells D, his wife, while they are in the kitchen, that he is going to the bedroom to get a gun and kill her. In response, V picks up a kitchen knife and, when V turns his back on her to go to the bedroom to obtain the gun, she stabs him to death. Under traditional common law principles, D's self-defense claim would likely fail because V did not yet represent an imminent threat: he is unarmed; therefore, she would likely have to wait until he returned with the weapon. In contrast, under the Code, D's self-defensive act of stabbing V in the back would be justifiable if she believed that she could not afford to wait until V returned with the weapon—i.e., that force was immediately necessary ("it's now or never").186

[b] Impermissible Use: Resisting an Unlawful Arrest

In a departure from common law principles but in accord with the modern trend, a person may not use force to resist an arrest that he knows is being made by a police officer (thus, arrests by undercover officers do not apply), even if the arrest is unlawful (e.g., without probable cause).187 However, this rule, which was opposed by a substantial minority of the members of the American Law Institute,188 does not prohibit use of force by an arrestee who believes that the officer intends to use excessive force in effectuating the arrest.189

[2] Deadly Force, in General

[a] "Deadly Force": Definition

Section 3.11, subsection (2), of the Code provides that "deadly force" is force used for the "purpose of causing or that [the actor] knows to create a substantial risk of causing death or serious bodily injury." The section expressly provides that the act of purposely firing a gun in the direction of a person or at a vehicle that the actor believes is occupied constitutes "deadly force." However, courts applying the Code have generally held that a mere threat (without the purpose) to cause death or serious injury to another is not "deadly force," even if the actor brandishes a weapon to back up his spurious threat.190

[b] Permissible Use

Deadly force is unjustifiable unless the actor believes that such force is immediately necessary to protect himself on the present occasion against: (1) death; (2) serious bodily injury; (3) forcible rape; or (4) kidnapping.191

The first three categories in which deadly force may be used are not problematic. The provision regarding kidnapping, however, is controversial. As the Commentary concedes,192 the appropriateness of its inclusion in the Code will depend on how kidnapping is defined by state law. A kidnapping need not involve a threat of death or great bodily injury to the kidnap victim as, for example, when a parent takes a child from the custody of another parent.

[c] Impermissible Use

Even if deadly force is otherwise permitted, as described immediately above, the Code prohibits its use in two key circumstances.

[i] Deadly Force by Aggressors

The Code...

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