§703-310  Provisions generally applicable to
justification.  (1)  When the actor believes that the use of force upon or
toward the person of another is necessary for any of the purposes for which
such belief would establish a justification under sections 703-303 to 703-309
but the actor is reckless or negligent in having such belief or in acquiring or
failing to acquire any knowledge or belief which is material to the
justifiability of the actor's use of force, the justification afforded by those
sections is unavailable in a prosecution for an offense for which recklessness
or negligence, as the case may be, suffices to establish culpability.



(2)  When the actor is justified under sections
703-303 to 703-309 in using force upon or toward the person of another but the
actor recklessly or negligently injures or creates a risk of injury to innocent
persons, the justification afforded by those sections is unavailable in a
prosecution for such recklessness or negligence toward innocent persons. [L
1972, c 9, pt of §1; gen ch 1993]



 



Cross References



 



  Definitions of negligence and recklessness, see §702-206.



 



COMMENTARY ON §703-310



 



  [The Proposed Draft of the Penal Code employed a subjective
standard for justification.  As mentioned previously and in the Supplemental
Commentary hereafter, the Legislature introduced an objective or
"reasonable man" standard.  The following commentary is based on the
Proposed Draft.  The Supplemental Commentary indicates that §703-310 may be
contrary to the Legislature's actual intent.]



  Subsection (1) states that, where the actor is reckless or
negligent in forming a belief about the existence of facts which would
establish a justification for the actor's conduct, the actor does not have a
defense of justification for any crime as to which recklessness or negligence
suffices to establish culpability.  This rule seems to be required in light of
the Code's subjective standards of justification, which have led to the
omission of the requirement that the actor's belief be reasonable.



  Subsection (2) denies the defense of justification in cases
in which the actor negligently or recklessly injures or creates a risk of
injury to innocent persons.  In such cases the actor may be prosecuted for a
crime involving negligence or recklessness, as the case may be.



 



SUPPLEMENTAL COMMENTARY ON §703-310



 



  As mentioned in the Supplemental Commentary on §§703-300 and
302, the Legislature introduced the "reasonable man standard" or
objective standard in making a determination of whether a defense of justification
is available.  This being the case, it would appear that, where the defendant
has been negligent in believing the use of force to be necessary, the defendant
loses the defense of justification for all related crimes, including those
which require intent, knowledge, and recklessness, as well as negligence, to
establish culpability.  Thus, §703-310, which was consistent with the
principles of Chapter 703 as originally set forth in the Proposed Draft, now
appears contrary to the Legislature's intent in this area.