SCR214.DOC

WHEREAS, in January 2008, Janel Tupuola, a twenty-nine-year-old mother of five children all under thirteen years old, was attacked by her ex-boyfriend, who rammed her car several times causing her to spin out, pulled her from the front seat, and violently clubbed her to death with the butt of his shotgun in front of several stunned witnesses; and

WHEREAS, there have been numerous other cases within this State and throughout the United States where bystanders have not interceded to assist the victims of violent crimes while the crimes are occurring; and

WHEREAS, there may be many reasons for failing to intercede in a dangerous situation to save the life of another person: the bystander effect, which posits that larger the number of people who witness a crime, the less likely any one person is to jump in and assist, because each bystander assumes someone else should step in; the fear of misreading the situation; the fact that people faced with emergencies do not think as carefully and logically as they normally would and that the bystander may not know what to do; fear for the bystander's own safety; and fear of criminal or civil liability if the bystander harms or kills the attacker; and

WHEREAS, while onlookers in the Janel Tupuola incident have stated that they did not intervene because they feared for their own safety, had the bystanders known that they had other means of subduing Janel's attacker available to them without worrying about legal repercussions, such as using a weapon that could have incapacitated or killed him, this may have prompted more bystanders to act, thus saving Janel Tupuola's life; and

WHEREAS, the laws regarding criminal and civil liability for using force to protect another person leave open the possibility that a would-be Good Samaritan may be criminally prosecuted or civilly sued if successful in incapacitating or killing the attacker; and

WHEREAS, under the Penal Code, there is a defense of "justification" to the deadly use of force under section 703-305, Hawaii Revised Statutes, only when "[u]nder 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", or "[t]he actor believes that the actor's intervention is necessary for the protection of the other person"; and

WHEREAS, section 703-301, Hawaii Revised Statutes, specifically provides that "[t]he fact that conduct is justifiable under this chapter does not abolish or impair any remedy for such conduct which is available in any civil action", which means that a person using deadly force to protect another could still be sued by the attacker or the attacker's family for trying to save the life of the attacker's victim; and

WHEREAS, although other factors may still stop a bystander from intervening to save another person who needs help, the Legislature believes that fears of legal consequences should be the last thing on a bystander's mind when faced with a life-and-death situation; and

WHEREAS, the Legislature believes that the law regarding justification for the use of force and civil liability if a person attempts to assist another, even if that person uses deadly force, should be reviewed and considered in order to determine whether these laws should be amended to provide additional legal protection to would-be Good Samaritans who step in to save the lives of others who are in peril; now, therefore,

BE IT RESOLVED by the Senate of the Twenty-fifth Legislature of the State of Hawaii, Regular Session of 2010, the House of Representatives concurring, that the Attorney General is requested to:

(1) Review the laws regarding civil and criminal liability pertaining to a person's use of force, including deadly force, when the person is attempting to protect other persons;

(2) Determine whether amendments to such laws in order to provide additional protections for such persons is prudent; and

(3) Submit to the Legislature a report no later than twenty days prior to the convening of the 2011 Regular Session of the Legislature regarding its findings and recommendations, together with recommended proposed legislation, if any; and

BE IT FURTHER RESOLVED that a certified copy of this Concurrent Resolution be transmitted to the Attorney General.

	OFFERED BY:	_____________________________

Report Title:

Criminal and Civil Liability; Use of Deadly Force

THE SENATE	S.C.R. NO.	214
TWENTY-FIFTH LEGISLATURE, 2010
STATE OF HAWAII