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Lecture: 12-2005
JUSTIFICATION: USE OF FORCE.
By: Skip Gochenour
I.
Self-defense
A.
Self-defense
is a concept that explains in short-hand form the use of lawful force towards
another person or persons who are engaged in unlawful activities.
B.
It is
not a legal term that defines the circumstances under which an actor may use
force.
1.
The
legal principle that describes the lawful use of force is referred to as
“Justification”.
II.
Justification
is a legal defense to an action that would otherwise be unlawful.
A.
Justification
is an “affirmative” defense.
1.
An
affirmative defense requires the actor to acknowledge all of the elements of an
unlawful act, but to assert that the actor was justified to engage in those
acts due to a set of circumstances that made the employment of those actions
necessary.
2.
If the
asserted affirmative defense of justification is rejected by a finder of fact,
the actor is subject to conviction for the underlying criminal acts.
3.
Justification
is not a “rule” it is a set of “principles”.
4.
As
“principles” there is sufficient “wiggle room” to allow the prosecuting
authorities and finders of fact to review the instant occurring circumstances
to determine if the actor responded “reasonably” to the circumstances
confronting him.
5.
There
are no fact circumstances that provide an unqualified grant of authority to use
force towards another person.
III.
Principles
Regarding the Justification of the Use of Force.
A.
Justification
principles operate at the state level within the 50 states of the U. S.
1.
There
are variations in the principles from state to state.
2.
The
variations tend to fall into categories.
a.
eg. Some states require the actor to “flee to
the wall” before resorting to the use of force even in defense of the actor’s
life.
b.
Florida
recently enacted a law that allows actors to meet force with force without
fleeing.
c.
Pa. law
requires the actor to flee an imminent assault if the flight can be
accomplished in “complete safety”.
d.
Some
states reject the “castle doctrine” and require the actor to flee his domicile
in order to avoid using force.
3.
In
general, there are many similarities in the justification principles used by
the several states.
4.
Justification
principles for specific states are usually found in the Crimes Code of the
state. Practitioners should consult the
Justification section of the code for the specific state that is relevant to
their operations.
B.
The use
of force, in its various guises, (restraint, physical force, confinement, etc.)
is generally a police power sequestered for the use of the state.
1.
Exigent
circumstance can create an occurrence where police are not available to
intervene on behalf of a citizen and form a necessity for the citizen to use
force.
2.
Key
requirements for a justified use of force are exigency and necessity.
C.
In
general, the use of any form of force towards another person can only be
justified if the employment of the force is necessary to prevent a greater harm
imminently employed by the aggressor.
D.
The
amount of force employed may not be greater than is required to reduce the
threat.
1.
Restraint
and confinement are forms of force.
2.
Non-lethal
force.
3.
Lethal
force.
E.
Justification
Principles are applied using a standard of the “reasonable and prudent man”.
1.
The
reasonable and prudent man is a legal fiction that attempts to create an
“objective” standard to measure the “subjective” evaluations of the actor.
2.
The
question the law asks is, “Would a reasonable and prudent man, confronted with
the circumstances the actor found, respond in a similar fashion?”
3.
Using an
R&P standard, how did the actor come to be in the situation he was in when
he applied the subjective standards he employed to decide the use of force was
necessary?
a.
General
avoidance.
b.
The
“stupid “factor.
1)
Being in
stupid places, with stupid people, doing stupid things.
c.
Specific
avoidance.
1)
Upon
seeing signs that an unanticipated circumstance is developing, did the actor
take the earliest opportunity to remove himself from the situation?
2)
Did the
actor continue to evaluate the circumstances to search for another opportunity
to remove himself from the situation?
4.
Using an
R&P standard, did the actor use no more force than was necessary to reduce
the threat to an acceptable level?
a.
Did the
actor take the first realistic opportunity to disengage from the threat?
b.
Did the
actor take the first realistic opportunity to escape and evade the threat?
c.
Was each
individual action taken by the actor no more than necessary to reduce the
threat to an acceptable level?
d.
NOTE: This is the area where training
“techniques” can be seen as outside the realm of necessary force. An effective technique that can be
reasonable foreseen as creating a risk of serious bodily injury may be regarded
as more force than was necessary under the circumstances.
IV.
Pennsylvania
Principles of Justification.
A.
The
remainder of this session will examine the Principles of Justification that are
used in Pennsylvania.
B.
December’s
session will return to this study nad examine the additional factors that
relate to the reasonableness of an actors actions.
C.
To
review Chapter 5. General Principles of Justification, in Title 18, Crimes and
Offenses, Consolidated Pennsylvania Statutes, see: http://members.aol.com/statutesP8/18PA501.html