§ 20.05 MODEL PENAL CODE

• Jurisdiction: North Carolina

§ 20.05. Model Penal Code

[A] Permissible Use of Nondeadly Force

[1] Force to Protect Property

Subject to the limitations described in subsection [B], the Code provides that a person may use nondeadly force upon another person to prevent or terminate an entry or other trespass upon land, or to prevent the carrying away of personal property, if he believes³⁶ that three conditions exist: (1) the other person's interference with the property is unlawful; (2) the intrusion affects property in the actor's possession, or in the possession of someone else for whom he acts; and (3) nondeadly force is immediately necessary.³⁷ In general, this provision conforms with the common law.

[2] Force to Recapture Property

Subject to the limitations described in subsection [B], the Code provides that a person may use nondeadly force to re-enter land or to recapture personal property if: (1) he believes that he or the person for whom he is acting was unlawfully dispossessed of the property; and either (2a) the force is used immediately after dispossession; or (2b) even if it is not immediate, he believes that the other person has no claim of right to possession of the property. In the (2b) situation, however, re-entry of land (as distinguished from recapture of personal property) is not permitted unless the actor also believes that it would constitute an "exceptional hardship" to delay re-entry until he can obtain a court order.³⁸

This recapture provision is broader than the common law. It extends the right to use nondeadly force to circumstances in which hot pursuit of the dispossessor has ended, namely, when the actor believes that he was dispossessed at an earlier time by one who had no claim of right to the property. In this situation, the American Law Institute believes that the law "should not deny a privilege that a well conducted person would expect to have."³⁹ However, force may not be used to regain property if the dispossessed party believes that the dispossessor acted on the basis of a claim of right to the property, even if the dispossessed party believes that the other's claim ultimately will be rejected by the courts. In the latter circumstance, the Institute agrees with the common law that absent immediacy, the best approach is for the parties to resolve their conflicting claims in court.

[B] Impermissible Use of Nondeadly Force

Nondeadly force that is otherwise permitted in defense of property is unjustified in three circumstances. First, force is not "immediately necessary" unless the defender first requests desistance by the interfering party. A request is not required, however, if the defender believes that a request would be useless, dangerous to himself or to another, or would result in substantial harm to the property before the request can effectively be made.⁴⁰

Second, a person may not use force to prevent or terminate a trespass to personal or real property if he knows that to do so would expose the trespasser to a substantial risk of serious bodily injury.⁴¹ For example, it would be impermissible to evict a trespasser from a moving vehicle.⁴²

Third, the...