§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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



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



  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.



  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.



  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.



 



__________



§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).