8. Justification Flashcards
What is required for D to justify his use of force by self-defence?
Non-deadly force
1) D without fault (Victim initiated assault/provoked D)
2) D reasonably believed force was necessary to protect himself
3) From imminent use of unlawful force (crime/tort) upon D
Deadly force
1) D without fault (Victim initiated assault/provoked D)
2) D reasonably believed force was necessary to protect himself
3) From imminent death/great bodily harm
4) NO retreat available (minority view only, NOT majority view)
- Duty to retreat completely safely
- NOT attack in D’s dwelling/during unlawful arrest by D/robbery of D
Right of D in confrontation initiated by D (e.g. felony murder) => Regain use of self-defence
- D withdrew + communicated withdrawal desire to Victim
- Victim suddenly escalates minor fight by deadly force + D has NO means to withdraw
What is required for Defendant to use force in defence of others?
1) D reasonably believes
2) Other person has legal right to use force in own defence
- Majority view: Reasonably appears
- Minority view: Actual legal right
Must Defendant have special relationship with others to defend them by use of force?
NO
What is required for Defendant to use force to defend his own dwelling?
Deadly force
- Prevent violent entry + reasonable belief force is necessary to prevent attack in dwelling
- Reasonable belief force is necessary to prevent intended felony in dwelling
Non-deadly force
- Reasonable belief force is necessary to prevent/terminate unlawful entry into dwelling
What is required for Defendant to use force to defend one’s property?
1) Reasonable belief imminent unlawful force will occur
2) Non-deadly force
- NOT deadly force (unless in conjunction with other defence)
UNLESS
- D can request to desist
- D can refrain from activity
What is required for Defendant to use force to prevent crime?
Deadly force
- D reasonably believes force is necessary to prevent dangerous felony involving risk to human life
Non-deadly force
- D reasonably believes force is necessary to prevent felony/serious breach of the peace
What is required for police officer to use force to effectuate arrest?
Deadly force
1) Necessary to prevent Felon’s escape
2) Reasonably believes Felon will cause death/serious bodily harm
Non-deadly force
- As reasonably necessary
What is required for private citizen to use force to effectuate arrest?
Deadly force
- Victim actually guilty of crime arrested
Non-deadly force
1) As reasonably necessary
2) Crime was in fact committed
3) D reasonably believed Victim committed crime
What is required for Defendant to use force to resist arrest?
Deadly force
- D does NOT know police officer is police officer
Non-deadly force
1) D knows police officer is police officer
2) Majority view
- NOT minority view + MPC
What is required for necessity as defence?
1) One would reasonably believe (Objective)
- NOT Defendant (NOT subjective)
2) Crime necessary to prevent imminent harm towards society
- NOT intentional homicide
3) Under pressure from;
- Natural force (common law)
- Human force (modern view)
=> Justified
What is required for duress as defence?
1) D reasonably believed (Subjective)
2) Crime necessary to prevent imminent harm towards;
- D/D’s Family
- D’s property (value of property > harm to society)
- NOT intentional homicide
3) Under pressure from human force
=> Excused
What is the difference between duress and necessity?
Duress
- Subjective
- Protect humans + property
- From human force
- Excusable
Necessity
- Objective
- Protect society
- From human/natural force
- Justifiable
