Massachusetts Superior Court Criminal Practice Jury Instructions (MCLE)
CHAPTER 5 INSTRUCTIONS ON DEFENSE AND JUSTIFICATION
§ 5.4 SELF DEFENSE AND DEFENSE OF ANOTHER

§ 5.4.3 Supplemental Instructions

(a) Mere Words Insufficient
A person may not lawfully use force to defend himself or herself because of reproachful words or names, regardless of how grievous, indecent or unjustifiable, or to whom addressed, if they are unaccompanied by an actual or menaced assault. One need not submit to a physical attack before one may defend oneself, but there must be some overt act by the other person, threatening in nature, that places the defendant in reasonable and actual apprehension of physical attack.

Threatening gestures if combined with statements of intent to inflict serious harm may constitute reasonable provocation to warrant a defensive response.

Judges considering whether to instruct on reasonable provocation based on evidence of some combination of words and conduct are cautioned to read Commonwealth v. Howard, 479 Mass. 52, 61-62 (2018);see also Commonwealth v. Fortini, 68 Mass. App. Ct. 701, 705-07 (2007) (reasonable provocation instruction warranted where defendant shot victim following victim’s “unexpected and aggressive approach on foot”); Commonwealth v. Rodriguez, 58 Mass. App. Ct. 610, 611-12 (2003) (reasonable provocation instruction required where defendant testified that he imposed fatal stab wound after feeling threatened by five men running toward him).

(b) Mutual Combat
Generally, where two people engage in a fistfight by agreement, neither is acting in self-defense. However, if contrary to the mutual understanding the use of force by one person escalates to such a degree that the other person reasonably believes he or she is in imminent danger of death or great bodily harm, then he or she may use force to defend himself or herself.

(c) Defendant’s Past Physical, Sexual or Psychological Abuse

You may consider evidence that the defendant is or has been the victim of acts of physical, sexual or psychological harm or abuse, as well as expert testimony concerning the nature and effects of such abuse, in determining the reasonableness of the defendant’s apprehension that death or serious bodily injury was imminent, the reasonableness of the defendant’s belief that (he/she) had availed (himself/herself) of all available means to avoid physical combat, and the reasonableness of the defendant’s perception of the amount of force necessary to deal with the perceived threat.

(d) Definition of Dwelling Under “Castle Law,” G.L. c. 278, § 8A
A dwelling is a place where one is temporarily or permanently residing and that is in one’s exclusive possession. As for apartment buildings, a tenant’s dwelling cannot reasonably be said to extend beyond his or her own apartment and perhaps any separate areas subject to his or her exclusive control.

(e) Use of Force in Resisting Arrest or Prison Regulation
If there is evidence of excessive or unnecessary force by police in making an arrest [by corrections officers in enforcing a prison regulation], the Commonwealth must prove beyond a reasonable doubt (1) that the arresting officer did not use excessive or unnecessary force in making the arrest. If the Commonwealth satisfies this burden, then the defendant has no right to engage in self-defense. If the Commonwealth fails to prove that excessive or unnecessary force was not used by police [corrections officers], and there is evidence of self-defense, then the Commonwealth must prove beyond a reasonable doubt (2) that the defendant did not act in self-defense, or (3) that force used by the defendant in self-defense was unreasonable or excessive in the circumstances.

In the absence of the use of excessive or unnecessary force by an arresting [or corrections] officer, a person may not use force to resist arrest [or enforcement of a prison regulation] by one whom he or she knows, or has good reason to believe, is an authorized police [or corrections officer] engaged in the performance of his or her duties. This is true whether the arrest [or enforcement of a prison regulation] is lawful or unlawful.

However, if a police [or corrections] officer uses excessive or unnecessary force to make an arrest [or to enforce a prison regulation], the person who is being arrested [or having the prison regulation enforced against him or her] may defend himself or herself by using such force as reasonably appears to be necessary in light of all the circumstances. This is true regardless of whether the arrest [or enforcement of a prison regulation] was lawful or unlawful.

Once the person being arrested [or having the prison regulation enforced against him or her] knows or reasonably should know that if he or she stops using force, the officer will stop using force, the person being arrested is required to stop using force. Whether the officer used excessive force and whether the person being arrested used reasonable force to resist excessive force are questions for you to determine.

(f) Use of Force to Resist Arrest or Law Enforcement Action–Alternate Instruction

In the absence of the use of excessive or unnecessary force by a law enforcement officer a person may not use force to resist an arrest or other law enforcement action by one whom he or she knows or has good reason to believe is an authorized law enforcement officer engaged in the performance of his or her duties, whether the arrest or law enforcement action is lawful or unlawful.

However, if a law enforcement officer uses excessive or unnecessary force to make an arrest or enforce a regulation, the person who is being arrested or subjected to the law enforcement action may defend himself or herself by using such force as reasonably appears to be necessary in light of all of the circumstances. A person who provokes or initiates a conflict through use or threat of force cannot ordinarily claim the right of self-defense unless he or she withdraws in good faith and announces his or her intention to withdraw. The use of nonthreatening words is not sufficient to constitute the initiation of a conflict. Even one who had been the initial aggressor may use force to resist excessive or unnecessary force by a law enforcement officer. Once the person using force to resist the excessive force of a law enforcement officer knows or reasonably should know that if he or she stops using force the officer will stop using force, that person is required to stop using force.

The Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense or that the force used by the defendant was unreasonable, excessive or unwarranted in the circumstances. Reasonableness is determined by the proportionality of the force used. It is for you to determine whether the officer used excessive force and whether the person being arrested used reasonable force to resist excessive force.

(g) Defendant Police Officer’s Use of Necessary and Reasonable Force–Lesser Duty to Retreat

A police officer has an obligation to protect fellow officers and the public at large that goes beyond that of an ordinary citizen, such that retreat or escape is not a viable option for an on-duty police officer faced with a potential threat of violence. Thus the question must be whether the defendant as a police officer had reasonable options available other than to use force–not whether a similarly situated civilian would have had other options. As a police officer, the defendant would have been justified in using force in connection with his or her official duties, as long as such force was necessary and reasonable.

 

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