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

406.18 Justification: Use of Force to Prevent Escape from Confinement

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 the lawful use of force by a (guard) (or) (law enforcement officer) to prevent escape from confinement. In this state, the use of force (including the use of deadly force) by a (guard) (or) (law enforcement officer) in preventing escape from confinement is lawful in certain situations.

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

[1] A (guard) (or) (law enforcement officer) can lawfully use force to prevent the escape of a person from confinement if he reasonably believes the person is attempting to escape (from confinement) (or) (while being taken to or from a place of confinement). If he has such a belief, he is permitted to use that amount of force which he reasonably believes to be immediately necessary to prevent the escape.

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

[2] But in preventing escape from confinement a (guard) (or) (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 there is a substantial risk that the person attempting to escape will endanger human life or cause serious physical injury unless the escape is prevented.

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

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

[3] As used in this instruction, the term “reasonable belief” 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 (guard) (or) (law enforcement officer) (as to Count _____) (in this case), you are instructed as follows:

[1] [ Insert either [A], [B], [C], or [D] as appropriate. Omit brackets and material within the brackets.]

[A] [ Use the following when there is no evidence as to the use of deadly force.]

If the defendant was a (guard) (or) (law enforcement officer) and reasonably believed that [ name of victim] was attempting to escape (from confinement) (or) (while being taken to or from a place of confinement) and used only such force as reasonably appeared to be immediately necessary to prevent the escape, then his use of force was lawful.

[B] [ Use the following when the evidence is clear that deadly force was used by the defendant and there is no dispute as to that issue.]

If the defendant was a (guard) (or) (law enforcement officer) and reasonably believed that [ name of victim] was attempting to escape (from confinement) (or) (while being taken to or from a place of confinement), and he reasonably believed that there was a substantial risk that [ name of victim] would endanger human life or cause serious physical injury unless the escape was prevented, and he reasonably believed that the use of deadly force was immediately necessary to prevent the escape of [ name of victim], then he acted lawfully in preventing an escape.

[C] [ Use the following when there is some evidence that the defendant used deadly force and it is an issue in the case whether the defendant used deadly force but there is no evidence supporting the lawful use of deadly force.]

If the defendant was a (guard) (or) (law enforcement officer) and reasonably believed that [ name of victim] was attempting to escape (from confinement) (or) (while being taken to or from a place of confinement) and used only such non-deadly force as reasonably appeared to be immediately necessary to prevent the escape, then his use of force was lawful.

[D] [ Use the following when there is some evidence that the defendant used deadly force and it is an issue in the case whether the defendant used deadly force, and there is also evidence supporting the lawful use of deadly force.]

If the defendant was a (guard) (or) (law enforcement officer) and reasonably believed that [ name of victim] was attempting to escape (from confinement) (or) (while being taken to or from a place of confinement) and used only such non-deadly force as reasonably appeared to be immediately necessary to prevent the escape, then his use of force was lawful, or

if the defendant reasonably believed that there was a substantial risk that [ name of victim] would endanger human life or cause serious physical injury unless the escape was prevented, and he reasonably believed that the use of deadly force was immediately necessary to prevent the escape of [ name of victim], then his use of deadly force was lawful.

[2] [ This paragraph must be used in ALL cases.]

The state has the burden of proving beyond a reasonable doubt that the defendant was not entitled to use force as a (guard) (or) (law enforcement officer) to prevent an escape from confinement. Unless you find beyond a reasonable doubt that the defendant was not entitled to use force as a (guard) (or) (law enforcement officer) to prevent an escape from confinement, you must find the defendant not guilty (under Count _____).

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

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.

Notes on Use

1. Section 563.056, RSMo 2016. This is a revision of MAI-CR 3d 306.18 (9-1-02). This revision is to Notes on Use only. This form does not include any applicable statutory changes since 2013. You should review the statute and determine if modifications need to be made to the form.

2. The “burden of injecting the issue” of use of force to prevent escape from confinement 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 (guard) (or) (law enforcement officer) lawfully using force to prevent escape from confinement 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 in preventing escape from confinement 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. 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 to prevent escape from confinement. 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.

(c) The material in [3] of part A will be used in all cases.

4. The second part of this 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 nondeadly) 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 the 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.

The selection of the material in [1] will be made as follows:

(i) When there is no evidence that the defendant used deadly force, the material in [A] will be used.

(ii) When the evidence is clear that the defendant used deadly force, then the material in [B] will be used.

(iii) When there is some evidence that the defendant used deadly force and there is an issue as to whether the defendant used deadly force, but no evidence supporting the lawful use of deadly force, the material in [C] will be used.

(iv) When there is some evidence that the defendant used deadly force and there is an issue as to whether the defendant used deadly force and there is also evidence supporting the use of deadly force, the material in [D] will be used.

(v) When there is an issue as to whether the defendant resorted to the use of deadly force, so that the material in [1][C] or [1][D] could be used, the court may, at the request of the state, use [1][D]. This imposes a higher burden than [1][C], but avoids the issue of whether the evidence was sufficient to justify a reasonable belief that the situation was such as to permit the use of deadly force.

(b) The material in [2] of part B will be used in all cases.

(c) 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. See Notes on Use 5.

5. 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, 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:

“confinement,”

“law enforcement officer.”

See MAI-CR 4th 433.00 .

 

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