Session #2 Flashcards
The use of physical force upon another person, which would otherwise constitute a criminal offense, is JUSTIFIABLE and not criminal under certain circumstances. Please study the following questions in a systematic fashion and be sure you understand when force may be justifiably used and HOW MUCH FORCE is permitted. But remember in 1985 most of this law pertaining to DEADLY PHYSICAL FORCE was declared unconstitutional when used by a public servant making an arrest, but the legislature did not amend the law.
TONDELAYO, THE PARENT OF ROGER, USES PHYSICAL FORCE TO DISCIPLINE ROGER, WHO IS UNDER 21 YEARS OF AGE. IS TONDELAYO’S USE OF FORCE “JUSTIFIABLE”?
YES. No criminal charge would be instituted against Tondelayo, the parent. The law permits a parent, guardian or other person entrusted with the care and supervision of a person under 21 or incompetent person, and a TEACHER or other person entrusted with the care and supervision of a minor for a special purpose, to use physical force to maintain DISCIPLINE or to promote the welfare of such minor or incompetent person. RE: Teachers, internal rules usually prohibit the use of force.
WOULD TONDELAYO, THE PARENT OF ROGER, EVER BE PERMITTED TO USE “DEADLY” PHYSICAL FORCE WHEN DISCIPLINING ROGER?
NO! When disciplining a minor or incompetent person, a parent, guardian or teacher may NEVER USE DEADLY PHYSICAL FORCE.
NOTE: DEADLY PHYSICAL FORCE means physical force which, under the circumstances in which it is used, is readily capable of causing DEATH or other SERIOUS PHYSICAL INJURY.
FRANK, THE WARDEN OF A JAIL, USED PHYSICAL FORCE TO MAINTAIN ORDER IN THE JAIL. IS HIS USE OF FORCE PERMITTED?
YES. The CORRECTION LAW authorizes the use of physical force in such circumstances. This applies to a warden or other authorized official of a jail, prison, or correctional institution when necessary to maintain order and discipline.
GEORGE, A BUS DRIVER, USES PHYSICAL FORCE TO EJECT AN UNRULY PASSENGER. IS THE USE OF SUCH FORCE PERMITTED?
YES. A person responsible for the maintenance of order in a common carrier of passengers, OR a person acting under his/her direction, may use physical force to maintain order
IN THE FOREGOING SITUATION, WOULD THE BUS DRIVER EVER BE PERMITTED TO USE “DEADLY” PHYSICAL FORCE?
YES. The driver, or a person acting under his/her direction, would be permitted to use DEADLY physical force when he/she reasonably believes it NECESSARY to prevent death or serious physical injury.
NOTE: Please keep in mind that the defense of JUSTIFICATION is predicated on the factor of NECESSITY. Physical force – in any amount – in any situation – should never be used except when NECESSARY. When a person is permitted to use force, he/she must reasonably believe that the use of force is NECESSARY. The “amount” of force used should be the absolute minimum required to deal with the situation. In the case of the bus driver using DEADLY force, you will note that it really is a case of self-defense, as he is permitted to use DEADLY force to offset or prevent the use of DEADLY force.
ROGER OBSERVES THAT TONDELAYO IS ABOUT TO COMMIT SUICIDE. IS ROGER PERMITTED TO USE PHYSICAL FORCE TO KEEP TONDELAYO FROM KILLING HERSELF?
YES
MAY A DULY-LICENSED PHYSICIAN USE PHYSICAL FORCE WHEN TREATING A PATIENT?
YES. A licensed physician, or a person acting under his/her direction, may use physical force for the purpose of administering a recognized form of treatment to promote the physical or mental health of the patient.
NOTE: If the patient in less than 18 years of age or an incompetent person, the parent, guardian, etc., usually consents to such treatment. However, in an emergency, the physician may apply the treatment if he/she 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.
DOES THE DOCTRINE OF “SELF DEFENSE” PERMIT THE USE OF PHYSICAL FORCE?
YES, of course. The law permits a person to use physical force upon another person when and to the extent he/she reasonably believes such to be necessary to DEFEND himself/herself or a third person from what he/she believes to be the use or imminent use of unlawful physical force by such other person.
NOTE: The reference to a THIRD PERSON is used to include situations where an individual would ordinarily feel it incumbent upon him/her to defend someone (his/her spouse, his/her child, his/her friend, etc.)
IS THE “SELF-DEFENSE” DOCTRINE AVAILABE TO A PERSON WHO PROVOKES ANOTHER TO CAUSE PHYSICAL INJURY?
NO. If a person is to avail himself/herself of the “SELF-DEFENSE” doctrine, he/she can do so only if he/she can show he/she did NOT provoke the injury sustained. To put it another way, he/she must really be the VICTIM, not the AGGRESSOR.
FRANK, WHILE STANDING NEXT TO GEORGE AT A BAR, GETS INTO AN ARGUMENT AND SHOVES GEORGE, CAUSING HIM TO FALL TO THE FLOOR. FRANK THEN BECOMES VERY APOLOGETIC AND MAKES PEACE WITH GEORGE, SHAKING HANDS AND HAVING A DRINK TOGETHER. GEORGE, HOWEVER, NOT HAPPY ABOUT THE SHOVING INCIDENT, FINISHES THE DRINK AND GOES OUTSIDE THE TAVERN, AND WHEN FRANK LEAVES, PROCEEDS TO ATTACK HIM. WOULD FRANK BE PERMITTED TO DEFEND HIMSELF AGAINST SUCH ATTACK?
YES. Even though Frank shoved George to the floor while drinking at the bar, Frank had “made peace” with George, and the incident was, for all intent and purpose, concluded. Since George persisted in continuing the incident by waiting outside and attacking Frank, Frank would be permitted to use force to defend himself against George’s attack.
ALEXANDER AGREES TO DUEL ARRON BY HAVING A SHOOT-OUT IN THE SHEEP MEADOW OF CENTRAL PARK AT DAWN. WOULD THEY BE PERMITTED TO USE FORCE AGAINST EACH OTHER?
No. Physical force is never permitted in such a combat.
NOTE: In an authorized boxing or wrestling bout, physical force used in such exhibitions is legal. However, unauthorized combats by agreement such as duels are out!
MAY A PERSON USE “DEADLY” PHYSICAL FORCE WHEN DEFENDING HIMSELF/HERSELF OR A THIRD PERSON?
YES, but the defender must have very good reason to use so much force. The law requires that he/she may NOT use DEADLY force if he/she knows that he/she can with complete safety as to himself/herself and others avoid the necessity of so doing by RETREATING; and he/she must reasonably believe that such other person is using or about to use DEADLY force.
NOTE: The equation – DEADLY FORCE to equate DEADLY FORCE - is an accepted circumstance in the JUSTIFICATION defense, but to repeat, the person must first try to retreat from such situation if safe retreat is possible. However, no retreat is required if the person is in HIS/HER DWELLING and is not the initial aggressor. Of course, a police officer or a person assisting a police officer need never RETREAT when defending against DEADLY force.
MAY A PRIVATE PERSON ACTING ON HIS/HER OWN ACCOUNT USE PHYSICAL FORCE IN AN ARREST/ESCAPE SITUATION?
- YES. Keep in mind that a private person has certain arrest powers as prescribed by Section 140.30 of the Criminal Procedure Law. A private person may arrest ONLY when an offense has in fact been committed; if a FELONY, it need not be committed in or out of his/her presence. In the case of a FELONY arrest, the private person may arrest anywhere in New York State, but an arrest for an offense other than a FELONY must be made in the county in which the offense was committed.
- A private person may use DEADLY force to defend himself/herself or a third person against the use of DEADLY force (THE SELF-DEFENSE DOCTRINE) or when arresting a person who has committed any of five serious felonies (remember that a private person can only arrest when an offense has in fact been committed).
- The FIVE serious felonies are MR & MRS:
Murder
Robbery
Manslaughter 1st Degree
Rape (forcible)
Sodomy (forcible) (C.S.A.)
MAY A POLICE OFFICER USE PHYSICAL FORCE WHEN MAKING ARRESTS?
Yes, of course. The taking of an alleged wrongdoer into custody very frequently requires some use of force on the part of the officer.
MAY A GUARD OR A PEACE OFFICER WHO IS GUARDING A PRISONER USE PHYSICAL FORCE TO PREVENT THE PRISONER’S ESCAPE?
YES. This provision also includes escape from a detention facility or while the officer is in transit to or from a detention facility. The amount of force may be physical force or even DEADLY force depending on how much is required to prevent the prisoner’s escape.
