HI 7.18B. DEFENSE OF PROPERTY WHEN THE USE OF “DEADLY FORCE” IS NOT AT ISSUE

Hawaii Standard Criminal Jury Instructions (2014)

VOLUME I

7. SPECIFIC DEFENSES

7.18B. DEFENSE OF PROPERTY WHEN THE USE OF “DEADLY FORCE” IS NOT AT ISSUE

The use of force in the defense of property is a defense to the charge(s) of (specify charge and its included offenses). The burden is on the prosecution to prove beyond a reasonable doubt that the force used by the defendant was not justified. If the prosecution does not meet its burden, then you must find the defendant not guilty.

The use of force upon or toward another person in defense of property is justified if the defendant reasonably believes that such force is immediately necessary:

[To prevent criminal trespass or burglary *Link to the text of the note in a building or upon real property in the defendant’s possession, or in the possession of another person for whose protection the defendant acts]

[To prevent unlawful entry upon real property in the defendant’s possession, or in the possession of another person for whose protection the defendant acts]

[To prevent theft, criminal mischief, or any trespassory taking of, *Link to the text of the note any tangible movable property in the defendant’s possession, or in the possession of another person for whose protection the defendant acts.]

“Force” means any bodily impact, restraint, or confinement, or the threat thereof.

The reasonableness of the defendant’s belief that the use of protective force in defense of property was immediately necessary shall be determined from the viewpoint of a reasonable person in the defendant’s position under the circumstances of which the defendant was aware or as the defendant reasonably believed them to be when the force was used.

The defendant may use such force as he/she believes is necessary to protect the threatened property, provided that the defendant first requests that the person stop the interference with the property. However, the defendant need not make such a request if the defendant reasonably believes:

[Such a request would be useless]

[It would be dangerous to the defendant or another person to make the request]

[Substantial harm would be done to the physical condition of the property that is sought to be protected before the request could effectively be made.]

[The use of confinement as protective force is justifiable only if the defendant takes all reasonable measures to terminate the confinement as soon as he/she knows that he/she can do so with safety to the property, unless the person confined has been arrested on a charge of crime.]

[The use of force upon or toward another person in defense of property is not available for the offense(s) of (specify any offense in which the requisite state of mind is either recklessness or negligence) if the prosecution proves:

(1) The defendant was reckless in believing that he/she was justified in using force in defense of property; or

(2) The defendant was reckless in acquiring or failing to acquire any knowledge or belief which was material to the justifiability of his/her use of force in defense of property.]

Hawai’i Standard Criminal Jury Instructions (2014)