§703-305 Use of force for the protection of other persons. (1) Subject to the provisions of this section and of section 703-310, the use of force upon or toward the person of another is justifiable to protect a third person when:

(a) Under the circumstances as the actor believes them to be, the person whom the actor seeks to protect would be justified in using such protective force; and

(b) The actor believes that the actor's intervention is necessary for the protection of the other person.

(2) Notwithstanding subsection (1):

(a) When the actor would be obliged under section 703-304 to retreat, to surrender the possession of a thing, or to comply with a demand before using force in self-protection, the actor is not obliged to do so before using force for the protection of another person, unless the actor knows that the actor can thereby secure the complete safety of such other person;

(b) When the person whom the actor seeks to protect would be obliged under section 703-304 to retreat, to surrender the possession of a thing or to comply with a demand if the person knew that the person could obtain complete safety by so doing, the actor is obliged to try to cause the person to do so before using force in the person's protection if the actor knows that the actor can obtain the other's complete safety in that way; and

(c) Neither the actor nor the person whom the actor seeks to protect is obliged to retreat when in the other's dwelling or place of work to any greater extent than in the actor's or the person's own. [L 1972, c 9, pt of §1; gen ch 1993]

Revision Note

In subsection (2)(a), "and" deleted pursuant to §23G-15.

COMMENTARY ON §703-305

This section extends the defense of justification to include the use of physical force to protect another person on the same terms as the defense is available for the use of force in self-protection. The Code follows the Model Penal Code in allowing defense of others regardless of the relationship between the actor and the person being protected. It permits a person to use force to protect another person when the actor believes the other person would have been justified in using force to protect himself and he believes that his intervention is necessary to protect the other person. This formulation covers situations in which the other's infirmity, infancy, or other physical condition makes him especially unable to protect himself or susceptible to injury, even though the actor, in a similar predicament, might not himself have been justified in using force.

Subsection (2) provides certain exceptions and limitations. The actor need not retreat, surrender possession, or comply with a demand unless the actor knows the actor can thereby secure the complete safety of the other person. The actor must try to persuade the other person to retreat, surrender possession, or comply with a demand if the actor knows the actor can obtain the other's complete safety in that way. Finally, retreat is not required if the action takes place in the other's dwelling or place of business to any greater degree than is required in §703-304.

Hawaii case law shows only bare recognition of this type of justification.1 The Code provides codification and elaboration.

Case Notes

Jury instruction relating to the defense of the use of force for the protection of other persons pursuant to this section was erroneous as it improperly included elements relating to the defense of the use of force in self-protection under §703-304; 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).

Defendant entitled to consideration of justification defense no matter how weak, unsatisfactory or inconclusive the evidence appeared. 81 H. 142 (App.), 913 P.2d 553 (1996).

Defendant not justified in using protective force against complaining witness where, under circumstances as defendant believed them to be, a reasonable person would not reasonably believe person sought to be protected would be justified in using protective force against complaining witness. 81 H. 142 (App.), 913 P.2d 553 (1996).

Unborn children are not included within the definition of "another" or "person" for purposes of the Hawaii Penal Code; thus, defendant could not justify defendant's physical abuse of girlfriend on grounds that defendant was protecting "another" or a third person, specifically, defendant's unborn child. 101 H. 3 (App.), 61 P.3d 514 (2002).

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 §703-304 and this section; 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 §703-304 and this section. 114 H. 507 (App.), 164 P.3d 765 (2007).

Although the justification provisions of subsection (2)(b), which addressed the defendant's obligation to attempt to cause the third party to retreat before the defendant uses force, was not discussed in the jury instructions, by not instructing the jury with regard to that qualification, the trial court effectively gave defendant the benefit of the justification even if defendant would otherwise not have been entitled to rely on it under subsection (2)(b); thus, the trial court's failure to instruct with regard to this section was harmless beyond a reasonable doubt. 120 H. 499 (App.), 210 P.3d 22 (2009).

There was sufficient evidence to support the district court's finding that defendant was not acting to protect defendant's girlfriend where defendant's girlfriend was already the aggressor when defendant dragged victim by the hair to support defendant's conviction of harassment under §711-1106(1)(a). Further, defendant's girlfriend's ex-husband testified that defendant's girlfriend "went for" victim before defendant pulled victim by victim's hair, thus negating defendant's defense-of-others justification defense pursuant to this section. 130 H. 332 (App.), 310 P.3d 1033 (2013).

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§703-305 Commentary:

1. The King v. Bridges, 5 Haw. 467, 472 (1885); Territory v. Warren, 35 Haw. 232, 245 (1939); rehearing denied, 35 Haw. 252.