§703-306  Use of force for the protection of
property.  (1)  The use of force upon or toward the person of another is
justifiable when the actor believes that such force is immediately necessary:



(a) To prevent the commission of criminal trespass or
burglary in a building or upon real property in the actor's possession or in
the possession of another person for whose protection the actor acts; or



(b) To prevent unlawful entry upon real property in
the actor's possession or in the possession of another person for whose
protection the actor acts; or



(c) To prevent theft, criminal mischief, or any
trespassory taking of tangible, movable property in the actor's possession or
in the possession of another person for whose protection the actor acts.



(2)  The actor may in the circumstances
specified in subsection (1) use such force as the actor believes is necessary
to protect the threatened property, provided that the actor first requests the
person against whom force is used to desist from the person's interference with
the property, unless the actor believes that:



(a) Such a request would be useless; or



(b) It would be dangerous to the actor or another
person to make the request; or



(c) Substantial harm would be done to the physical
condition of the property which is sought to be protected before the request
could effectively be made.



(3)  The use of deadly force for the protection
of property is justifiable only if:



(a) The person against whom the force is used is
attempting to dispossess the actor of the actor's dwelling otherwise than under
a claim of right to its possession; or



(b) The person against whom the deadly force is used
is attempting to commit felonious property damage, burglary, robbery, or
felonious theft and either:



(i)  Has employed or threatened deadly force
against or in the presence of the actor; or



(ii)  The use of force other than deadly force
to prevent the commission of the crime would expose the actor or another person
in the actor's presence to substantial danger of serious bodily injury.



(4)  The justification afforded by this section
extends to the use of a device for the purpose of protecting property only if:



(a) The device is not designed to cause or known to
create a substantial risk of causing death or serious bodily injury; and



(b) The use of the particular device to protect the
property from entry or trespass is reasonable under the circumstances, as the
defendant believes them to be; and



(c) The device is one customarily used for such a
purpose or reasonable care is taken to make known to probable intruders the
fact that it is used.



(5)  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 the actor knows
that the actor can do so with safety to the property, unless the person
confined has been arrested on a charge of crime. [L 1972, c 9, pt of §1; gen ch
1993]



 



COMMENTARY ON §703-306



 



  This section establishes the rules for the use of force upon
or toward the person of another which has as its purpose the protection of
property.  The standard of justification is the actor's own belief in the
necessity of using physical force to prevent certain specified kinds of harm. 
Force may be used to prevent criminal trespass and burglary, unlawful entry
upon real property, theft, criminal mischief, and other trespassory taking of
tangible, movable property, so long as in each case the property protected is
in the possession of the actor or of one for whose protection the actor is
acting.  (Note that in any case in which the actor fears bodily injury to the
actor or another, §§703-304, 305 would apply rather than §703-306.  Thus,
robbery may be covered by those sections rather than this, if the robber places
the actor in fear of bodily injury or death.)



  Subsection (2) permits the actor to use such force as the
actor believes is necessary to protect the property, short of deadly force,
after making a request to desist from interfering with the property.  The
request is required because of the high value to be placed upon prevention of
human suffering.  Infliction of physical force on another cannot be justified
if the desired end can be achieved without the danger of injury.  A request to
desist does not, however, have to be made if the actor believes that it would
be useless, dangerous to the actor, or likely to give the wrongdoer time to do
substantial harm to the physical condition of the property.



  Deadly force is ordinarily not permitted.  It may be used if
the assailant is attempting to dispossess the actor of the actor's dwelling
otherwise than under a claim of right.  This recognizes an important tradition
in the common law which places a high value on the sanctity of the home and
recognizes that a person will take extraordinary means to preserve it.  Deadly
force may also be used to prevent felonious property damage, burglary, robbery,
or felonious theft, if:  (1) the person against whom the force is used has
employed or threatened deadly force against or in the presence of the actor, or
(2) use of force short of deadly force would expose the actor or another person
in the actor's presence to the danger of serious bodily injury.  Both of these
cases are covered, in any event, by the self-defense provisions of §§703-304,
305, but it seems wise to spell them out here in light of the general
prohibition on use of deadly force.



  Subsection (4) permits the use of certain property protection
devices which may cause bodily discomfort or injury, subject to strict
limitations.  Subsection (5) mirrors a similar subsection in §703-304 and
regulates the use of confinement as a protective force.  As in §703-304, use of
confinement is permitted, but it must be terminated as soon as possible
consistent with safety to the property, unless the person confined has been
arrested.



  An attempt has been made to simplify the Model Penal Code
scheme by omitting a few overly complicated concepts.  In addition, the
elaborate M.P.C. rules on recaption or re-entry are eliminated.  This Code
treats re-entry upon property and recaption of property under the same
principles as other forms of property defense.  As a matter of policy, it does
not seem wise to encourage resort to self-help when property has been seized in
any circumstances in which self-help would not have been permissible to protect
the property from seizure.  The M.P.C. rules have not generally been followed
in other states.[1]



  Hawaii case law is substantially in accord with the Code's
position on the use of deadly force.[2]  However, Hawaii has permitted the use
of devices to accomplish what the defendant could do were the defendant
present;[3] on this point the Code, clearly forbidding the use of deadly
devices under any circumstances, represents a change from the prior law. 
Subsection (2), on request, is an important addition to Hawaii law.  The
subsection on confinement is also new.



 



__________



§703-306 Commentary:



 



1.  See e.g., N.Y.R.P.L. §§35.20-35.25.



 



2.  Territory v. Warren, 35 Haw. 232, 245, rehearing denied, 35
Haw. 252 (1939).



 



3.  Id.