MO 406.14 JUSTIFICATION: USE OF FORCE BY LAW ENFORCEMENT OFFICER

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

406.14 Justification: Use of Force by Law Enforcement Officer

PART A – GENERAL INSTRUCTIONS

One of the issues (as to Count ______) (in this case) is whether the use of force by the defendant against [name of victim] was lawful. In this state, the use of force (including the use of deadly force) by a law enforcement officer in making an arrest or in preventing escape after arrest is lawful in certain situations.

[ Use the material in [1] in ALL cases. Omit brackets and number.]

[1] A law enforcement officer can lawfully use force to make an arrest or to prevent escape if he is making a lawful arrest or an arrest which he reasonably believes to be lawful. An arrest is lawful if the officer (reasonably believes that the person being arrested (has committed) (or) (is committing) an offense) (is executing an arrest warrant which he believes to be valid).

In making a lawful arrest or preventing escape after such an arrest, a law enforcement officer is entitled to use such force as reasonably appears necessary to effect the arrest or prevent the escape.

A law enforcement officer in making an arrest need not retreat or desist from his efforts because of resistance or threatened resistance by the person being arrested.

[ Use the material in [2] ONLY if there is evidence the defendant used deadly force. Omit brackets and number.]

[2] But in making an arrest or preventing escape, a law enforcement officer is not entitled to use deadly force, that is, force which he knows will create a substantial risk of causing death or serious physical injury, unless he reasonably believes that the person being arrested is attempting to escape by use of a deadly weapon or that the person may endanger life or inflict serious physical injury unless arrested without delay.

And, even then, a law enforcement officer may use deadly force only if he reasonably believes the use of such force is immediately necessary to effect the arrest or prevent the escape.

[ Use the material in [3] in ALL cases. Omit brackets and number.]

[3] As used in this instruction, the term “reasonably believe” means a belief based on reasonable grounds, that is, grounds which 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.

PART B – SPECIFIC INSTRUCTIONS

On the issue of use of force by a law enforcement officer (as to Count ______) (in this case), you are instructed as follows: [ Select the appropriate paragraphs. Omit brackets and number.]

[ The material in [1], [1A] and [1B] should be used as follows: The material after [1] will be used in all cases. As to the material in [1A] and [1B]: If there is no evidence that the force used was deadly, use [1A] only, and do not use the term “non-deadly.” If there is evidence that deadly force was used and there is no dispute as to that issue, use [1B] only. If it is disputed whether the level of force used was deadly or non-deadly, use both [1A] and [1B]. Use the words “or if” at the end of [1A] only if both [1A] and [1B] are used. Omit brackets and number and bracketed letters.]

[1] First, if the defendant was a law enforcement officer (making) (or) (attempting to make) a lawful arrest (or what he reasonably believed to be a lawful arrest) of [ name of victim] for the offense of [ name of offense] and the defendant reasonably believed that use of force was necessary to effect the arrest or to prevent the escape of [ name of victim], and

[1A] Second, if he used only such (non-deadly) force as he reasonably believed to be necessary to effect the arrest or prevent the escape of [ name of victim], then his use of force was lawful(.) (, or if)

[1B] (Second) (Third), the defendant reasonably believed that [ name of victim] (was attempting to escape by the use of a deadly weapon) (or) (would endanger life or inflict serious physical injury unless arrested without delay), and the defendant reasonably believed that the use of deadly force was immediately necessary to effect the arrest of [ name of victim], then the defendant’s use of deadly force was lawful.

[ The material in [2] must be used in ALL cases. Omit brackets and number.]

[2] The state has the burden of proving beyond a reasonable doubt that the defendant was not entitled to use force as a law enforcement officer. Unless you find beyond a reasonable doubt that the defendant was not entitled to use force as a law enforcement officer against [ name of victim], you must find the defendant not guilty (under Count ______).

[ If the term “serious physical injury” is used in this instruction, then the following paragraph defining that term must be used. Omit brackets and number.]

[3] 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.

PART C – 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 victim.]

Notes on Use

1. Section 563.046, RSMo 2016. This is a revision of MAI-CR 3d 306.14 (1-1-11). This form does not include any applicable statutory changes since 2011. You should review any changes to the statute and determine if modifications need to be made to the form.

2. The “burden of injecting the issue” of use of force by a law enforcement officer is on the defendant. Whenever there is evidence supporting this defense, this instruction must be given. 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 as a law enforcement officer lawfully using force to make an arrest as submitted in Instruction No. __________,

If there is evidence supporting more than one claim of justifiable use of force, such as evidence supporting both the lawful use of force by a law enforcement officer and self-defense, a separate numbered cross-reference paragraph for each will be included in the verdict director.

NOTE: If a cross-reference to a justifiable use of force is included in a verdict director, such cross-reference must also be included in the verdict directors for any lesser included offenses. State v. Beeler, 12 S.W.3d 294 (Mo. banc 2000). The same issues arise if the defendant is charged with assault or any offense to which there can be a defense of justifiable use of force.

3. Section 563.046.3 sets out the circumstances in which a law enforcement officer can use deadly force to effect an arrest. Section 563.046.3(2) lists three situations where (if the officer reasonably believes it is necessary to use deadly force) deadly force can be used. One of these is if the officer “reasonably believes that the person to be arrested has committed or attempted to commit a felony.” This basis for the lawful use of deadly force by a law enforcement officer is not included in this instruction. See Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Under that decision, the use of deadly force to effect an arrest cannot be justified by the sole ground that the arrest is for the commission of a felony, and such use of deadly force violates the fourth amendment. The court stated that the Tennessee statute authorizing the use of deadly force to arrest for any felony “is unconstitutional insofar as it authorizes the use of deadly force against such [ unarmed, nondangerous] fleeing suspects.” Id. at 11.

4. This instruction is divided into two parts.

The first part of the instruction, part A, sets out the general requirements for the lawful use of force by a law enforcement officer. Those portions which are relevant to the case will be used. The phrase in parentheses referring to the use of deadly force in the opening paragraph will be used if there is evidence of the use of deadly force.

(a) The material in [1] of part A will be used in all cases.

(b) The material in [2] of part A will be used only if there is evidence that the defendant used deadly force. If there is no evidence as to the use of deadly force by the defendant, it will not be used. See Notes on Use 6(b) to MAI-CR 4th 406.06 for a discussion of what constitutes evidence of the use of deadly force.

5. The second part of the instruction, part B, gives specific instructions relating to the specific case.

(a) The material in [1] of part B deals with the factors of the type of force used by the defendant (whether it was deadly or non-deadly) and the necessity of using the amount of force that was used. In most cases, the evidence will be such that there will be no dispute over the issue of the use of deadly force, that is, it will be clear either that no deadly force was used or that deadly force was used.

Section 563.011(1) states that deadly force “means physical force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious physical injury.” See Notes on Use 6(b) to MAI-CR 4th 406.06 for a discussion of what constitutes evidence of the use of deadly force.

(b) The selection of the material in [1A] will be made as follows:

The material after [1] will be used in all cases. As to [1A] and [1B]: if there is no evidence as to the use of deadly force, use [1A] only. If the evidence is clear that deadly force was used by the defendant and there is no dispute as to that issue, use [1B] only. If there is some evidence that the defendant used deadly force, use both [1A] and [1B].

Use the words “non-deadly” in [1A] only if the material in [1B] is also used. Use the words “or if” at the end of [1A] only if both [1A] and [1B] are used.

(d) The material in [3] of part B is a definition of “serious physical injury.” It should be used if the term “serious physical injury” is used in the instruction.

6. The third part of this instruction, part C, deals with matters of evidence. If there is evidence of the reputation of the victim or the defendant, or evidence of prior acts of or threats by the victim or the defendant, such are relevant to the defendant’s belief as to the necessity of using force. A paragraph or paragraphs explaining such may be added at the written request, in proper form, of either party. See paragraphs [1]-[6] of part C of MAI-CR 4th 406.06 for examples. When supported by the evidence, similar paragraphs may be added to this instruction. The material in part C of MAI-CR 4th 406.06 should be modified for this instruction. Note that if any such paragraphs are used, the following sentence will be used at the end of part C:

You, however, should consider all of the evidence in the case in determining whether the defendant acted in lawful self-defense.

7. Definitions.

(a) When the following term is used in this instruction, the paragraph defining that term must be used: “serious physical injury.”

If the term is used in more than one instruction, the paragraph defining that term need not be included in this instruction. In that case, it must be defined in a separate instruction.

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.

(b) The following terms 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:

“deadly weapon,”

“law enforcement officer.”

In addition, the offense for which the arrest was being made 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.

See MAI-CR 4th 433.00 .

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