§703-307 Use of force in law enforcement. (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 when the actor is making or assisting in making an arrest and the actor believes that such force is immediately necessary to effect a lawful arrest.

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

(a) The actor makes known the purpose of the arrest or believes that it is otherwise known by or cannot reasonably be made known to the person to be arrested; and

(b) When the arrest is made under a warrant, the warrant is valid or believed by the actor to be valid.

(3) The use of deadly force is not justifiable under this section unless:

(a) The arrest is for a felony;

(b) The person effecting the arrest is authorized to act as a law enforcement officer or is assisting a person whom he believes to be authorized to act as a law enforcement officer;

(c) The actor believes that the force employed creates no substantial risk of injury to innocent persons; and

(d) The actor believes that:

(i) The crimes for which the arrest is made involved conduct including the use or threatened use of deadly force; or

(ii) There is a substantial risk that the person to be arrested will cause death or serious bodily injury if his apprehension is delayed.

(4) The use of force to prevent the escape of an arrested person from custody is justifiable when the force could justifiably have been employed to effect the arrest under which the person is in custody, except that a guard or other person authorized to act as a law enforcement officer is justified in using force which he believes to be immediately necessary to prevent the escape from a detention facility.

(5) A private person who is summoned by a law enforcement officer to assist in effecting an unlawful arrest is justified in using any force which he would be justified in using if the arrest were lawful, provided that he does not believe the arrest is unlawful. A private person who assists another private person in effecting an unlawful arrest, or who, not being summoned, assists a law enforcement officer in effecting an unlawful arrest, is justified in using any force which he would be justified in using if the arrest were lawful, provided that he believes the arrest is lawful, and the arrest would be lawful if the facts were as he believes them to be. [L 1972, c 9, pt of §1; am L 2001, c 91, §4]

Revision Note

In subsection (3)(a) and (b), "and" deleted pursuant to §23G-15.

COMMENTARY ON §703-307

Subsection (1) covers all persons (not just peace officers) making an arrest. Force upon or toward the person of another is justifiable if the actor believes the amount of force the actor is using is immediately necessary to effect the arrest and if the actor believes that the arrest is lawful. It is immaterial that the arrest is unlawful if the actor believes it to be lawful. The justification also covers a person who is assisting in making an arrest.

Subsection (2) requires an announcement of the purpose of the arrest, unless the actor believes that the purpose is otherwise known (as in cases of hot pursuit) or cannot reasonably be made known. Further, the actor, if acting under a warrant, must either have a valid warrant or believe the warrant to be valid.

Subsection (3) restricts the use of deadly force to felony arrests by peace officers or persons who believe they are assisting peace officers. Even when these requirements are met, the actor must further believe that there is no substantial risk of injury to innocent persons and that the crime for which the arrest is made involved conduct including the use or threatened use of deadly force or that there is a substantial risk that the person to be arrested will cause death or serious bodily injury if the person's apprehension is delayed. It seems advisable to limit the situations in which deadly force can be used by a peace officer while at the same time recognizing that in some cases it is desirable to allow the peace officer to use deadly force in order to avert far greater harm. Note that the restrictions on deadly force to effect an arrest are supplemented by the general provisions on use of force in self-protection which would permit anyone to use deadly force if the person feared death or serious bodily harm to oneself or another. (See §§703-304, 305.)

Subsection (4) recognizes a justification for the use of force to prevent the escape of an arrested person from custody. Deadly force may be used to prevent escape from a jail, prison, or similar institution. When the subject is not incarcerated, the subject's escape may be prevented by force if force could justifiably have been employed to effect the arrest under which the subject is in custody. In addition, the Code contains a substantive crime of escape, and rights to use force to arrest for that crime will frequently arise. The distinction in permissible force is based on the greater social disruption and dismay which may arise from the escape of a person from a prison or a similar institution.

Subsection (5) gives protection to a private person who is assisting in an arrest. A person who assists a peace officer at the peace officer's command is justified, though the arrest be unlawful (and possibly even known by the officer to be unlawful), so long as the actor does not believe the arrest is unlawful. A higher standard is imposed when a private person assists another private person or volunteers aid to a peace officer. Here the person must believe the arrest to be lawful, and must believe in the existence of facts which would have made the arrest lawful if the facts were as the person believes them to be.

Previous Hawaii law recognized the defense provided by this section. The law required, like the Code, that the peace officer make known the peace officer's purpose to the arrestee, if it is possible to do so under the circumstances.[1] Prior law differs importantly from the Code, however, in that Hawaii statutory and case law permitted the arresting officer to use any force, including deadly force, necessary to effect any arrest.[2] No distinction was drawn between the arrest of a misdemeanant and a felon.[3] There was no requirement that the peace officer use deadly force only when acting in self-defense.[4] Nonetheless, under Hawaii case law, the peace officer could not use more force than was reasonably necessary to effect the arrest.[5] (As in all situations involving the defense of justification, Hawaii law used an objective test to determine the reasonableness of the defendant's belief.[6]) It is likely that a private person under Hawaii law also had the right to use any force necessary to effect the arrest of one who commits a crime in the person's presence.[7] However, there are apparently no Hawaii cases on this point.

It is the position of the Code that certain arrests will not warrant the use of deadly force and that the goal of proper law enforcement is best served by having the circumstances of such arrests clearly stated. The section provides a rational scale of the use of force based on the danger the arrestee represents to society and the immediate circumstances of the arrest, rather than on the simplistic concept that the police, in order to do a successful job, must always be given a carte blanche. Similar considerations are behind subsection (4) of the Code on escape; this subsection considerably narrows and clarifies the circumstances under which deadly force may be used.[8]

SUPPLEMENTAL COMMENTARY ON §703-307

Section 703-307(3) sets forth the very limited circumstances in which deadly force may be used to effect an arrest. Subsection (4) provides the general rule that, in dealing with an attempted escape, an officer may use the same force the officer could have used in effecting the arrest under which the person is or was in custody. As originally proposed, subsection (4) created an exception which provided that the law officer would be justified in using any force, including deadly force, which the officer believes to be immediately necessary to prevent the escape of a person charged with or convicted of a felony. The legislature broadened the exception to allow the officer to use any force the officer believes to be necessary to prevent the escape of any person from a detention facility, whether charged or convicted of a felony, misdemeanor, or petty misdemeanor. The Conference Committee Report states that: "Your Committee finds that such a determination whether the potential escapee was charged with or convicted of a felony as opposed to some lesser offense by a guard or other person authorized to act as a peace officer would be difficult, if not impossible, in an escape situation." Conference Committee Report No. 2 (1972).

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§703-307 Commentary:

1. H.R.S. §§803-6, 803-11; Provisional Government v. Caecires, 9 Haw. 522, 533 (1894).

2. "In all cases where the person arrested refuses to submit or attempts to escape, such degree of force may be used as is necessary to compel the person to submission." H.R.S. §803-7; Territory v. Machado, 30 Haw. 487 (1928).

3. Territory v. Machado, supra.

4. Id.

5. Leong Sam v. Keliihoomalu, 24 Haw. 477 (1918).

6. Cf. commentary on 304.

7. Cf. H.R.S. §§803-3, 7; see note 2 supra.

8. H.R.S. §803-7, see note 2 supra.