Missouri Approved Instructions – Criminal (MAI-CR)
406.00 SERIES INSTRUCTIONS REQUIRED WHETHER REQUESTED OR NOT

406.08 Justification: Use of Physical Force in Defense of Third Persons

One of the issues (as to Count _______) (in this case) is whether the use of physical force by the defendant against [Identify victim.] was lawful. On the issue of defense of another person (as to Count _______) (in this case), you are instructed as follows:

In this state the use of physical force (, including the use of deadly force,) to defend another person is lawful in certain situations. [Select the appropriate paragraphs. Omit brackets and number.]

[Use the material in [1] only if there is evidence that the person being defended was not justified in using physical force in self-defense and there is evidence that the defendant was aware of this. Omit brackets and number.]

[1] However, a person cannot use physical force to defend another person against physical force if under the circumstances as he reasonably believed them to be, the person he seeks to protect would not be justified in using physical force to defend himself. [Insert brief description of the basis why the person being protected would not be justified in using physical force to defend himself. See Notes on Use 5 for examples. If more than one option is used, they should be connected with “or.”] If, under the circumstances as a person reasonably believed them to be, the person he seeks to protect (was the initial aggressor (and had not withdrawn)) (was being arrested by a law enforcement officer) (was (attempting to commit) (committing) (escaping after committing) [Insert name of forcible felony.]) ([other basis for lack of justification]), then he is not entitled to use physical force to defend the other person.

[ Use the material in [2] in all cases. Omit brackets and number. The parenthetical term “non-deadly” should only be selected if the material in [3] is used.]

[2] In order for a person to lawfully use (non-deadly) physical force in defense of another person, he must reasonably believe that physical force is necessary to defend the person he is trying to defend from what he reasonably believes to be the use or imminent use of unlawful force and he can only use physical force to the extent that he reasonably believes is necessary to defend the other person.

[ Use the material in [3] only if there is evidence the defendant used deadly force. Omit brackets and number.]

[3] But a person is not permitted to use deadly force unless he reasonably believes the use of deadly force is necessary to protect the other person against (death or serious physical injury) (the commission of a forcible felony).

A person is not required to retreat before resorting to the use of physical force to defend another person if he is (lawfully (entering) (remaining) in a (dwelling) (residence) (vehicle)) (on private property (owned) (leased) by the person) (in a location the person has the right to be).

The state has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful defense of [ name of person defended.]. Unless you find beyond a reasonable doubt that the defendant did not act in lawful defense of [ name of person defended.], you must find the defendant not guilty (under Count ______).

(As used in this instruction, an “initial aggressor” is one who first (attacks) (or) (threatens to attack) another.)

As used in this instruction, the term “reasonably believe” means a belief based on reasonable grounds, that is, grounds that could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared. It does not depend upon whether the belief turned out to be true or false.

(As used in this instruction, “deadly force” means physical force which is used with the purpose of causing or which a person knows to create a substantial risk of causing death or serious physical injury.)

(As used in this instruction, the term “serious physical injury” means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.)

(As used in this instruction, the term [ Insert name of forcible felony within quotation marks.] means [ Insert definition of the forcible felony. See Notes on Use 5 and 8.].)

EVIDENTIARY MATTERS

[ See Notes on Use 6 for instructions on the use of additional paragraphs dealing with evidence of reputation or prior conduct of the defendant or the person being protected or the victim.]

Notes on Use

1. Section 563.031, RSMo 2016. This is a revision of MAI-CR 4th 406.08 (7-1-17). This instruction should be used for offenses committed on or after October 14, 2016.

2. The “burden of injecting the issue” of defense of another person is on the defendant. Whenever there is evidence supporting this defense, this instruction must be given.

3. A paragraph making a cross-reference to this instruction will be added to the verdict director as follows:

(Second) (Third) ([ next numbered paragraph]), that defendant did not act in lawful defense of another person as submitted in Instruction No.________,

If there is evidence supporting more than one claim of justifiable use of physical force, such as evidence supporting both defense of third persons and the use of deadly force by a person lawfully in a dwelling or vehicle (see MAI-CR 4th 406.10 ), a separate numbered cross-reference paragraph for each instruction on the justifiable use of force will be included in the verdict director.

NOTE: If a cross-reference to a justifiable use of physical force is included in a verdict director, such cross-reference must also be included in the verdict directors for any lesser included offenses. See State v. Beeler, 12 S.W.3d 294 (Mo. banc 2000).

4. Subject to some exceptions, the use of physical force in self-defense or in defense of another person is not justified if the defendant was the “initial aggressor”. See Section 563.031.1. If there is evidence that the defendant was the “initial aggressor,” then this instruction should be modified to submit the issue of whether the defendant was the initial aggressor and, depending on the evidence, whether an exception applies. For a guide to this modification, see MAI-CR 4th 406.06 .

5. The use of physical force in defense of another person is justifiable unless “under the circumstances as the actor reasonably believes them to be, the person whom he seeks to protect would not be justified in using such protective force.” Section 563.031.1(2). If there is evidence that the person being protected would not be justified in using physical force to defend himself and there is evidence that the defendant was aware of this, then the material in [1] will be used. A brief description setting out the basis for the lack of justification should be included. For example, if there is evidence that the person being protected was the initial aggressor, the explanation could be: “A person who is an initial aggressor is not justified in using physical force to defend himself from the counter-attack that he provoked.” If there is further evidence that the person being protected withdrew so as to regain the privilege of using physical force, then additional language should be added to the instruction. See MAI-CR 4th 406.06 for guidance on what language to use. If there is evidence that the person being protected was not justified in using physical force in self-defense because he was being arrested, the explanation of the lack of justification could be: “A person is not justified in using physical force to defend himself from arrest when he knows a law enforcement officer is attempting to arrest him.” If there is evidence that the law enforcement officer was using excessive force, then draft an instruction using MAI-CR 4th 406.22 and this instruction. If there is evidence that the person being protected was committing a forcible felony, the explanation could be: “A person is not justified in using physical force to protect himself if he is (committing) (attempting to commit) (escaping after the commission of) [ Insert name of forcible felony.].”

6. Section 563.011(3) defines “forcible felony” as “any felony involving the use or threat of physical force or violence against any individual, including but not limited to murder, robbery, burglary, arson, kidnapping, assault, and any forcible sexual offense.” A defendant is entitled to defend another person from the use of unlawful physical force and is entitled to use deadly force if he reasonably believes it is necessary to protect the other person from a forcible felony. If the conduct of the victim constituting the source of the defendant’s claim of defense of another is assaultive in nature, the court will normally choose the “use or imminent use of unlawful physical force” language. However, deference should be given to the defendant’s preference on whether to submit the claim of defense of another as being in response to a forcible felony including the choice as to the forcible felony that describes the victim’s conduct.

The term “forcible felony” is not used in the instruction. Instead, the name of the forcible felony is used. If the felony involved is murder, robbery, burglary, arson or kidnapping, simply insert the appropriate word from the statutory list. If the felony involved is an assault, a forcible sexual offense, or a felony not listed in the statute, use only a felony that by its definitional elements involves the use or threat of physical force or violence. A definition of the particular forcible felony must be given.

If an attempt to commit a forcible felony is used, use the following language:

A person attempts to commit [ name of forcible felony] if, with the purpose of committing [name of forcible felony], he makes a substantial step toward the commission of [ name of forcible felony]. A substantial step means conduct that is strongly corroborative of the person’s firmness to commit [ name of forcible felony]. (It does not matter that it was factually or legally impossible to commit [ name of forcible felony] if such commission could have occurred had the circumstances been as the person believed them to be.)

A definition of the forcible felony being attempted must be given.

7. If there is evidence of the reputation of the victim, the person being defended, or the defendant, or of prior acts of or threats by the victim, the person being defended, or the defendant, that is relevant to the defendant’s reasonable belief as to whether the person being defended was in imminent danger, or to the defendant’s reasonable belief as to the necessity to use physical force, a paragraph or paragraphs explaining this may be added to the instruction at the written request, in proper form, of either party. See paragraphs [1]-[6] under “EVIDENTIARY MATTERS” in MAI-CR 4th 406.06 for how to make these submissions. The material under “EVIDENTIARY MATTERS” in MAI-CR 4th 406.06 will need to be modified for this instruction. If any of these paragraphs are used, the following sentence will be placed at the end of the instruction:

“You, however, should consider all of the evidence in the case in determining whether the defendant acted in lawful defense of [ name of person defended.].”

8. Section 563.031.4, provides that “physical restraint” can be used as protective force in defense of another person. If an issue of the lawful use of physical restraint is raised by the evidence, this instruction will need to be modified as follows:

Modify the second sentence of the opening paragraph so that it reads:

“In this state, the use of physical force, including the use of physical restraint, to defend and protect another person from harm is lawful in certain situations”

Then add the following paragraph to the material in [2]:

In addition, the use of physical restraint as a protective force is lawful provided the individual takes all reasonable measures to end the restraint as soon as it is reasonable to do so.

9. Definitions.

(a) When the following terms are used in this instruction, the paragraph defining that term must be used:

“deadly force,”

“forcible felony,”

“[ name of forcible felony],”

“serious physical injury.”

If the term is not used, the paragraph defining that term should not be used.

The definition of “serious physical injury” is from Section 556.061, RSMo 2016.

If the name of a particular forcible felony is used, this named felony must be defined. See Section 563.011(3), and Notes on Use 5 as to which felonies can be a “forcible felony.” In defining a forcible felony, use MAI-CR 4th 433.00 , the statute defining the offense, or the applicable verdict directing instruction. Also include any mandatory definitions of terms used in the definition of the forcible felony.

The definition of “deadly force” is from Section 563.011, RSMo 2016. The definition of “forcible felony” is from Section 563.011, RSMo 2016.

(b) The following term, if used in the instruction, may be defined by the court on its own motion and must be defined upon written request in proper form by the state or by the defendant:

“purpose.”

See MAI-CR 4th 433.00 .

 

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