§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; and



(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]



 



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



 



  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.



  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.



  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.



  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.



 



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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.