Report Title:

Justifiable Use of Force

Description:

Amends chapter 703, HRS, to remove requirement to retreat or surrender possession of a thing before the use of force is considered justifiable.

THE SENATE	S.B. NO.	2490
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII

A BILL FOR AN ACT

relating to justifiable use of force.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  Section 703-304, Hawaii Revised Statutes, is amended to read as follows:

     "§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] the actor 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] the actor 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] the person believes them to be when the force is used without retreating, surrendering possession, doing any other act [which he] that the person 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] that 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[,] of the occupier or possessor of property, 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] the duties of a public officer or a person lawfully assisting [him] a public officer therein or a person making or assisting in a lawful arrest; or

        (ii)  The actor believes that such force is necessary to protect [himself] the actor against death or serious bodily injury.

     (5)  The use of deadly force is not justifiable under this section if[:

(a) The] the actor, with the intent of causing death

or serious bodily injury, provoked the use of force against [himself] the actor 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] the actor knows that [he] the actor safely can, unless the person confined has been arrested on a charge of crime."

     SECTION 2.  Section 703-305, Hawaii Revised Statutes, is amended to read as follows:

     "§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)] (1)  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)] (2)  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.]"

     SECTION 3.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 4.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 5.  This Act shall take effect upon its approval.

INTRODUCED BY:

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