§703-304 Use of force in self-protection. (1) Subject to the provisions of this section and of section 703-308, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by the other person on the present occasion.

(2) The use of deadly force is justifiable under this section if the actor believes that deadly force is necessary to protect himself against death, serious bodily injury, kidnapping, rape, or forcible sodomy.

(3) Except as otherwise provided in subsections (4) and (5) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used without retreating, surrendering possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action.

(4) The use of force is not justifiable under this section:

(a) To resist an arrest which the actor knows is being made by a law enforcement officer, although the arrest is unlawful; or

(b) To resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:

(i) The actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest; or

(ii) The actor believes that such force is necessary to protect himself against death or serious bodily injury.

(5) The use of deadly force is not justifiable under this section if:

(a) The actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or

(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:

(i) The actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and

(ii) A public officer justified in using force in the performance of his duties, or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape, is not obliged to desist from efforts to perform his duty, effect the arrest, or prevent the escape because of resistance or threatened resistance by or on behalf of the person against whom the action is directed.

(6) The justification afforded by this section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can, unless the person confined has been arrested on a charge of crime. [L 1972, c 9, pt of §1; ree L 1975, c 163, §3; am L 2001, c 91, §4]

COMMENTARY ON §703-304

This section substantially adopts the Model Penal Code rules on justification of the use of force in self-protection. It has been rewritten and reorganized to make it more easily understandable.

Subsection (1) requires a belief by the actor that the use of protective force is actually necessary, and that unlawful force (defined in §703-300) is to be used by the assailant. He must believe, further, that immediate use of force is required, although the threatened harm to him need not be "imminent," as the rule was sometimes phrased at common law. It is enough that unlawful force is threatened on the present occasion by his assailant. The actor may make his defensive move without waiting for his assailant to load his gun or to summon reinforcements. Finally, the actor must believe that the particular degree of force used by him is necessary. This formulation is not meant to require a precise equation, but it will limit the defense to situations in which a particular scope and degree of retaliation is believed by the actor to be appropriate to the aggression.

Subsections (2) and (5) strictly limit the use of deadly force. Under the circumstances specified in subsection (2), the actor may use deadly force if he believes it is necessary to protect himself against death, serious bodily harm, kidnapping, rape, or forcible sodomy. This formulation has two implications: (a) the actor must believe that deadly force is the only viable means of preventing the specified harm, and (b) the actor must believe that one of the specified harms is threatened on the present occasion. "Deadly force" is defined in §703-300. Its use is further restricted by subsection (5). Deadly force may not be used if the actor provoked his assailant's use of force against himself in the same encounter with the purpose of causing death or serious bodily injury. Of course, if he intends only moderate harm and receives a deadly response, the initial aggressor may respond with deadly force. The use of deadly force is also denied when the actor can avoid using it with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right to it, or by complying with a demand that he refrain from taking an action which he has no legal duty to take. In any of these cases, the Code may seem to be opting for cowardice. However, it should be the strong principle of any criminal code to prevent death wherever possible. To quote the Model Penal Code commentary,

It rests, of course, upon the view that protection of life has such a high place in a proper scheme of social values that the law cannot permit conduct which places life in jeopardy, when the necessity for doing so can be avoided by the sacrifice of the much smaller value that inheres in standing up to an aggression.[1]

However, a duty to retreat or take over evasive action is not imposed in two situations. Subsection (5), subparagraph (b)(i), states that the actor is not required to retreat from his dwelling or his place of work unless he was the initial aggressor or unless he is assailed in his place of work by another person whose place of work he knows it to be. We would not normally expect a man to abandon his home to an aggressor and would allow him to stand his ground, although an exception is made, consistent with paragraph (a), if the actor is the initial aggressor. The exception for an attack in a man's place of work is new with the Model Penal Code. The same principles which permit a man to remain in his home would, for example, permit a shopkeeper to defend himself in his place of business without abandoning it to attackers. Subparagraph (b)(ii), of the same subsection, relates to public officials or persons assisting them using force in the performance of duty. It would be against public interest to require a public officer to abandon his duty if he meets resistance. This Code follows the Model Penal Code in extending the justification to all arrests and performances of duty, even if they are technically unlawful. Throughout chapter 703 the rule is that resistance to unlawful arrest is to be made in court rather than physically.

The Code also specifically requires surrendering possession of a thing when the attacker asserts a claim of right thereto. Where a person offers deadly force unless another surrenders property to him, and claims a right to the property, it is certainly sound policy to save life and litigate the disputed ownership in court. Naturally, however, this rule does not apply in cases of robbery, where the assailant can make no claim of right, and it is the purpose of the Code to permit deadly resistance to robbery if the conditions of subsection (2) are met. Finally, deadly force is impermissible if the actor can avoid using it by complying with a demand that he refrain from any action which he has no duty to take. Again, the policy of saving life seems more insistent than the right of the individual to complete freedom of action.

Subsection (3) states the generally applicable rule that the actor need not retreat or take any other evasive action before estimating the necessity for the use of force in self-protection.

Subsection (4) sets general limits on the use of self-protective force. Paragraph (a) follows the Model Penal Code in forbidding any use of force to resist an arrest which the actor knows is being made by a peace officer. Resistance to even an unlawful arrest should be made in court. No valid social policy is served by permitting physical resistance to peace officers who are known as such by the actor. If the law were to permit physical resistance, it would in effect be sanctioning unnecessary injury. However, only force for the purpose of resisting an arrest is proscribed. If the officer threatens to use unlawful force after the arrest, the normal self-protection rules would apply. In other words, the actor may resist a "peril greater than arrest."[2] Paragraph (b) is closely related to §703-306 (protection of property) which permits the use of force by the occupier or possessor of property to protect it. The actor may not use force to counter that permissible force, when it is directed at him under a claim of right to protect the property, unless he is a public officer or a person assisting him or a person making or assisting in a lawful arrest, or unless he believes that he must use force to protect himself against death or serious bodily harm. A third Model Penal Code exception, dealing with a right of re-entry or recaption, has been omitted. As explained in the commentary to §703-306, it does not seem wise to deal separately with these matters. This Code treats them under the more general rules relating to protection of property.

Subsection (6) recognizes that confinement may be used as protective force. Because of the continuing nature of confinement, however, the Code requires the actor to terminate the confinement as soon as he knows he can do so safely. He has no such duty if the person is arrested, simply because the legality of a confinement will then be tested by ordinary judicial processes.

Previous Hawaii case law required that the defendant's belief be reasonable.[3] Contrary to subsection (3) of the Code, under the Hawaii cases, the defendant must retreat before he uses any force, except in those circumstances where deadly force is the only way serious felonies against persons can be prevented.[4] In the latter situations, it appears that Hawaii case law, like the Code, would require retreat if it could be accomplished with complete safety.[5] To the extent that Hawaii cases demand "imminent" danger, in the common law sense,[6] the Code represents a change in the law. Finally, the subsection on confinement is an addition to Hawaii law.

Case Notes

Defendant entitled to instruction on self-defense whenever testimony fairly raises the issue, no matter how weak. 59 H. 148, 577 P.2d 793 (1978).

Defendant is entitled to jury instructions on self-defense where there is any evidence in the record to support jury consideration of the issue. 60 H. 504, 591 P.2d 615 (1979).

In self-defense to charge of homicide, admissibility of evidence of deceased's character for violence and aggression. 61 H. 328, 603 P.2d 151 (1979).

Where trial court conspicuously omitted from its self-defense instruction any reference to the use of "force", which was essential to defendant's defense at trial, insofar as defendant expressly disputed whether defendant's use of force constituted "deadly force", and instructed jury that, as a matter of law, defendant employed "deadly force" against victim because death in fact resulted from defendant's use of force, trial court's instruction was not harmless beyond a reasonable doubt. 101 H. 377, 69 P.3d 88 (2003).

Where defendant raised the issue of self-defense, trial court did not err in concluding that prosecution proved that defendant was not acting in self-defense when defendant shot victim. 107 H. 469, 115 P.3d 648 (2005).

Where trial court's jury instruction sufficiently tracked subsection (3) as it informed the jury that the reasonableness of defendant's belief must be viewed from defendant's perspective, appeals court properly determined that the instruction was consistent with the language of this section. 118 H. 452, 193 P.3d 368 (2008).

Jury instruction relating to the defense of the use of force for the protection of other persons pursuant to §703-305 was erroneous as it improperly included elements relating to the defense of the use of force in self-protection under this section; however, error was harmless because there was no evidence in the record to support a finding that, under the circumstances as a person would reasonably believe them to be, defendant was justified in using force in defense of others. 123 H. 205, 231 P.3d 478 (2010).

Jury instruction explaining the subjective portion of an assessment of petitioner's self-defense claim not misleading where jury was instructed to "place [themselves] in the shoes of the petitioner" and to assess petitioner's "subjective belief"; reading the instructions as a whole, the omission of specific language from State v. Lubong was not necessary to further explain the subjective portion. 129 H. 206, 297 P.3d 1062 (2013).

Objective portion of the self-defense jury instruction was not erroneous and misleading where jury instruction substituted the term "reasonable person" with "reasonably prudent person"; "reasonably prudent person" and "reasonable person" are interchangeable terms and a reasonable juror would not believe there was a difference between the two terms. 129 H. 206, 297 P.3d 1062 (2013).

The circuit court's self-defense jury instruction was not erroneous; among other things, the jury instruction was based on then-current Hawaii Pattern Jury Instructions-Criminal (HAWJIC) 7.01 with regard to self-defense and petitioner's argument that the instruction should have included language in subsection (3) regarding retreating and other acts, failed. 131 H. 463, 319 P.3d 382 (2014).

Defendant's claim of justification, in defense against prosecution for terroristic threatening, was established regardless of whether or not defendant used deadly force. 1 H. App. 167, 616 P.2d 229 (1980).

Evidence indicated defendant could have retreated safely; attack with baseball bat using sufficient force to break complainant's arm constituted deadly force. 2 H. App. 369, 633 P.2d 547 (1981).

Defendant did not reasonably believe that kicking person on floor was immediately necessary to protect self. 2 H. App. 577, 636 P.2d 1365 (1981).

State failed its burden of introducing substantial evidence disproving defendant's facts or proving facts negativing defendant's self-protection justification defense. 9 H. App. 435, 843 P.2d 1389 (1993).

There was substantial evidence to support trial court's conclusion that a reasonable person would not have believed that it was necessary to use deadly force on the particular occasion. 77 H. 429 (App.), 886 P.2d 766 (1994).

Trial court did not err in denying defendant's request that in addition to the choice of evils defense under §703-302, jury be instructed on the justification defenses of use of force in the protection of self and others under this section and §703-305; defendant's theory of defense was fully and adequately covered by the choice of evils instruction which the trial court gave and under the circumstances of the case, there was no reasonable possibility that the jury, which rejected defendant's choice of evils defense, might have embraced defenses based on this section and §703-305. 114 H. 507 (App.), 164 P.3d 765 (2007).

Prosecution's misstatement of law was not harmless error where (1) prosecution misstated the law concerning self-defense by incorrectly imputing a requirement that defendant must have intended to kill the victim in order for the defense of self-protection to apply, and (2) the trial court did not correct this misstatement by either sustaining defense counsel's objection or curing the misstatement in its jury instructions. Thus, if the jury believed this misstatement, it would have incorrectly concluded that the defense of self-protection was inapplicable since defendant clearly stated that defendant never intended to kill the victim. 120 H. 420 (App.), 209 P.3d 1234 (2009).

Where petitioner was not charged with assault for confining victim to the ground, for which a jury instruction regarding confinement may have been warranted, but rather was charged with murder in the second degree for firing a shotgun at victim resulting in victim's death, and respondent State did not rely at trial on a theory that petitioner unlawfully confined victim, trial court not required, when instructing jury regarding self-defense, to instruct the jury regarding relationship between "confinement" and self-defense pursuant to subsection (6). 129 H. 206, 297 P.3d 1062 (2013).

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§703-304 Commentary:

1. M.P.C., Tentative Draft No. 8, comments at 24 (1958).

2. Id. at 19.

3. State v. Clyde, 47 Haw. 345, 388 P.2d 846 (1964).

4. King v. Bridges, 5 Haw. 467 (1885).

5. Id.

6. State v. Clyde, 47 Haw. 345, 388 P.2d 846, 852 (1964); Territory v. Yadao, 35 Haw. 198, 201 (1959).