MO 406.22 JUSTIFICATION: USE OF FORCE BY PRIVATE PERSON IN RESISTING EXCESSIVE FORCE BY A KNOWN LAW ENFORCEMENT OFFICER MAKING AN ARREST

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

406.22 Justification: Use of Force by Private Person in Resisting Excessive Force by a Known Law Enforcement Officer Making an Arrest

PART A – GENERAL STATEMENT OF LAW

One of the issues (as to Count ______) (in this case) is whether the use of force by the defendant against [ name of law enforcement officer] was lawful. In this state, the use of force (, including the use of deadly force,) to protect oneself from excessive force by a person known by the defendant to be a law enforcement officer is lawful in certain situations.

A law enforcement officer making an arrest is entitled to use such physical force as reasonably appears necessary to effect such arrest. (He is also entitled to use such deadly force as reasonably appears necessary to effect the arrest if 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.) A person being arrested is required to submit to the arrest and is not entitled to use force to resist an arrest even if he believes such arrest to be unlawful.

A person being arrested can lawfully use force to protect himself from the use of excessive force by a law enforcement officer if he reasonably believes that submitting to the arrest will not stop the use of excessive force by the officer and that force is the only means by which he can protect himself from the excessive force.

[ Use the material in [1] ONLY if there is evidence defendant resisted or threatened to resist arrest. Omit brackets and number.]

[1] However, a person who resists an arrest or threatens to resist an arrest is not entitled to use force to defend himself from the force which he has so provoked unless he first clearly indicates to the law enforcement officer his desire to end his resistance and submit to the arrest. Then, if the law enforcement officer persists in his use of excessive force, the person being arrested may use only that force which he reasonably believes is necessary to defend himself from the use of excessive force.

[ Use the material in [2] in ALL cases. Omit brackets and number.]

[2] In order for a person being arrested to lawfully use force to defend himself from excessive force by a law enforcement officer, he must reasonably believe such force is necessary to defend himself from what he reasonably believes to be the use or imminent use of excessive force by the officer. If he has such a belief, he is then permitted to use that amount of force which he reasonably believes to be necessary to defend himself from the excessive force.

[ 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, that is force which he knows will create a substantial risk of causing death or serious physical injury, unless he reasonably believes the use of deadly force is necessary to defend himself against (death) (or) (serious physical injury) (the commission of a forcible felony).

And, even then, a person may use deadly force only if he reasonably believes that submitting to the arrest will not stop the officer’s use of excessive force, and he reasonably believes the deadly force is necessary to defend himself from the excessive force.

[ Use the material in [4] in ALL cases. Omit brackets and number.]

[4] 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.

[ Use the material in [5] ONLY if the term “forcible felony” was used in [3]. Omit brackets and number.]

[5] A forcible felony includes [ Insert name of forcible felony used in part B of this instruction.].

PART B – CASE SPECIFIC STATEMENT OF LAW

On the issue of self-defense (as to Count ______) (in this case), you are instructed as follows: [ Select the appropriate paragraphs. Omit brackets and number.]

[ The material in [1] should be used in ALL cases.]

[1] First, if the defendant (knew) (or) (was aware) that [ name of law enforcement officer] was a law enforcement officer (arresting) (attempting to arrest) the defendant, and

[ The material in [2] should be used unless there is no evidence the defendant resisted or threatened to resist arrest. If there is no evidence that the defendant resisted or threatened to resist arrest, skip the material in [2] and go to the material in [3]. Omit brackets and number.]

[2] Second, if the defendant did not resist or threaten to resist arrest in his encounter with [ name of law enforcement officer], (or if he resisted or threatened to resist arrest and clearly indicated to [ name of law enforcement officer] his desire to end his resistance and submit to the arrest,) and

[ The material in [3], [3A] and [3B] should be used as follows: The material in [3] will be used in ALL cases. As to the material in [3A] and [3B]: If there is no evidence that the force used was deadly, use [3A] 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 [3B] ONLY. If it is disputed whether the level of force used was deadly or non-deadly, use both [3A] and [3B]. Use the words “or if” at the end of [3A] only if both [3A] and [3B] are used. Omit brackets and number and bracketed letters.]

[3] (Second) (Third), if the defendant reasonably believed that the use of force was necessary to defend himself from what he reasonably believed to be the (use) (imminent use) of excessive force from the acts of [ name of law enforcement officer] and that submitting to the arrest would not stop the use of excessive force, and

[3A] (Third) (Fourth), and he used only such (non-deadly) force as reasonably appeared to be necessary to defend himself, then he acted in lawful self-defense(.) (, or if)

[3B] (Third) (Fourth) (Fifth), if the defendant reasonably believed that the use of deadly force was necessary to protect himself from (death or serious physical injury) (the commission of [ Insert name of forcible felony.]) from the acts of [ name of law enforcement officer], then his use of deadly force is justifiable and he acted in lawful self-defense.

[ The material in [4] must be used in ALL cases. Omit brackets and number.]

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

[ If the name of a forcible felony is used in this instruction, the material in [5] will be used. Omit brackets and number. In defining the felony, use MAI-CR 4th 433.00, the statute defining the offense, or the applicable verdict directing instruction. See Notes on Use 7 and 12 to MAI-CR 4th 406.06.]

[5] 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 7 and 12 to MAI-CR 4th 406.06.]

[ 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.]

[6] 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

[ Insert any of the following numbered paragraphs that are supported by the evidence and requested in writing in proper form by either party. Omit brackets and numbers.]

[1] Evidence has been introduced (of the reputation of the defendant for being [ Insert trait or traits, such as “peaceful and law-abiding” or “violent and turbulent.”]) (and) (of the reputation of [ name of law enforcement officer] for being [ Insert trait or traits.]). You may consider this evidence in determining (whether the defendant resisted or threatened to resist arrest) (or) (whether [ name of law enforcement officer] used excessive force) (and for no other purpose).

[2] Evidence has been introduced that [ name of law enforcement officer] had a reputation for being

(violent) (violent and turbulent) ([ other trait or traits indicating use of excessive force]), and that the defendant was aware of that reputation. You may consider this evidence in determining whether the defendant reasonably believed that the use of force was necessary to defend himself from what he reasonably believed to be the ((imminent) use of excessive force) ((imminent) commission of ([ Insert name of forcible felony.]) by [ name of law enforcement officer].

[3] Evidence has been introduced of the prior relationship between defendant and [ name of law enforcement officer] (including evidence of (arguments) (and) (acts of violence)). You may consider this evidence in determining (whether the defendant resisted or threatened to resist the arrest) (or) (whether [ name of law enforcement officer] used excessive force) (, and you may also consider it in determining whether the defendant reasonably believed that the use of force was necessary to defend himself from what he reasonably believed to be the (imminent) use of excessive force) (commission of [ Insert name of forcible felony.]) by [ name of law enforcement officer].

[4] Evidence has been introduced of acts of violence not involving the defendant committed by [ name of law enforcement officer] and that the defendant 7-1-17 406.22 was aware of these acts. You may consider this evidence in determining whether the defendant reasonably believed that the use of force was necessary to defend himself from what he reasonably believed to be the ((imminent) use of excessive force) ((imminent) commission of [ Insert name of forcible felony.]) by [ name of law enforcement officer]. You may not consider this evidence in determining whether [ name of law enforcement officer] used excessive force or for any other reason.

[5] Evidence has been introduced (of threats made by [ name of law enforcement officer] against defendant) (and) (evidence of threats made by defendant against [ name of law enforcement officer]). You may consider this evidence in determining whether (the defendant resisted or threatened to resist the arrest) (or) (whether [ name of law enforcement officer] used excessive force.)

[6] If any threats against defendant were made by [ name of law enforcement officer] and were known by or had been communicated to the defendant, you may consider this evidence in determining whether the defendant reasonably believed that the use of force was necessary to defend himself from what he reasonably believed to be the ((imminent) use of excessive force) (commission of [ Insert name of forcible felony.]) by [ name of law enforcement officer].

[ If any of the numbered paragraphs above 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.

Notes on Use

1. Section 563.031, RSMo 2016. This is a revision of MAI-CR 3d 306.22A (1-1-11). This form does not include any applicable statutory changes since 2007. You should review the statute and determine if modifications need to be made to the form.

2. This instruction is intended for those situations in which the defendant is charged with assaulting a law enforcement officer during the course of an attempted arrest where the defendant knew the victim was a law enforcement officer making an arrest and claims he was defending himself against the use of excessive force by the law enforcement officer.

3. Section 563.046.3, RSMo 2016, 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 (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 that 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. The “burden of injecting the issue” of self-defense 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 in lawful self-defense as submitted in Instruction No. __________,

If there is evidence supporting more than one claim of justifiable use of force, 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 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.

5. This instruction is divided into three parts.

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

(a) Subject to some exceptions, the use of force in resisting excessive force by a known law enforcement officer making an arrest is not justified if the defendant resisted or threatened to resist arrest. If there is no evidence indicating the defendant did such, then the material in [1] of part A will not be used. If there is evidence the defendant did resist arrest, then the material in [1] of part A will be used.

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

(c) The material in [3] 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 for discussion of when there is evidence as to the use of deadly force.

(d) The material in [4] of part A will be used in all cases.

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

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

(b) The material in [2] of part B will be used only if there is evidence that the defendant resisted or threatened resistance to the arrest. The material in parentheses will be used only if there is also evidence that the defendant indicated to the law enforcement officer his desire to end his resistance and submit to the arrest.

If the material in [2] of part B is used, it will be followed by the appropriately selected material in [3] of part B. If the material in [2] is not used, the opening phrase of part B ending with “you are instructed as follows:” will be followed by the appropriately selected material after [3].

(c) The material in [3] 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), RSMo 2016, states that deadly force “means physical force which the actor uses with the purpose of causing or which he or she knows to create a substantial risk of causing death or serious physical injury.”

Thus, the question of whether deadly force was used depends not only on the amount of force used but also on the defendant’s purpose to cause, or awareness of the likelihood of causing, death or serious physical injury. In some cases, there will be a question as to whether the defendant had such a purpose or awareness. The fact that death or serious physical injury did or did not result from the defendant’s conduct does not necessarily mean that there is no issue as to the use of “deadly force.”

The selection of the material in [3] of part B will be made as follows: The material after [3] will be used in all cases. As to the material in [3A] and [3B]: if there is no evidence of the use of deadly force, only the material after [3A] will be used. If the evidence is clear that deadly force was used by the defendant and there is no dispute as to that issue, only the material after [3B] will be used. If there is some evidence that the defendant used deadly force, use the material after both [3A] and [3B]. Use the words “non-deadly” in [3A] only if the material in [3B] is also used. Use the words “or if” at the end of [3A] only if both [3A] and [3B] are used.

For a discussion differentiating between deadly force and non-deadly force, see MAI-CR 4th 406.06, Notes on Use 6.

(d) The material in [4] of part B will be used in all cases.

(e) The material in [5] of part B is a definition of “serious physical injury” and should be used if the term “serious physical injury” is used in the instruction.

7. The third part of this instruction, part C, deals with matters of evidence. Paragraphs [1], [2], [3], [4], [5], or [6], or any combination of them, will be used if supported by the evidence and if requested by either party or on the court’s own motion. If any of the numbered paragraphs are used, part C will end with the sentence telling the jury to consider all of the evidence.

Paragraph [1] is a limiting instruction as to the use of reputation evidence. Such evidence is relevant in determining whether the defendant resisted or threatened resistance to the arrest or whether the victim used excessive force. The option of using such evidence of character is initially with the defendant. If the issue of character is “opened up” by the defendant, the state may then also introduce such character evidence. If the evidence of the bad reputation of the victim is not known to the defendant, then the evidence of such reputation is admissible only as evidence of whether the victim used excessive force and is not admissible as evidence of reasonable fear of harm on the part of the defendant.

Paragraph [2] deals with evidence of the defendant’s awareness of the bad reputation of the victim. This may be given if there is evidence of such awareness. If paragraph [2] is given, the phrase in parentheses at the end of paragraph [1] should not be used.

Paragraph [3] deals with the prior relationship between the defendant and the victim. The last phrase in parentheses as to the use of the evidence to show apprehension on the part of the defendant may be used when the evidence of the prior relationship is relevant to the defendant being in reasonable fear of the victim.

Paragraph [4] deals with specific acts of violence committed by the victim that do not involve the defendant. If the defendant is aware of such acts, they are relevant to whether the defendant was in reasonable apprehension of imminent harm from the victim. State v. Waller, 816 S.W.2d 212 (Mo. banc 1991).

Paragraph [5] deals with threats by the victim against the defendant and threats by the defendant against the victim. Such are relevant in determining whether the defendant resisted or threatened to resist arrest and whether the victim used excessive force without regard to whether such threats were communicated to or known by the other party.

Paragraph [6] deals with threats by the victim against the defendant of which the defendant was aware. Such are relevant to whether the defendant reasonably believed it was necessary to defend against the use or imminent use of excessive force.

Note that none of these six paragraphs are alternatives. Any or all may be given provided they are requested and supported by the evidence. If any of the numbered paragraphs are used, part C will end with a sentence telling the jury to consider all of the evidence.

8. 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 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.

If the name of a particular forcible felony is used, such named felony must be defined. See Section 563.011(3) and Notes on Use 7 to MAI-CR 4th 406.06 as to what felonies can be a “forcible felony.” In defining a forcible felony, use MAI-CR 4th 433.00 if applicable, 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” in part A [3] is from Section 563.011, RSMo 2016.

The definition of “forcible felony” is from Section 563.011, 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:

“law enforcement officer,”

“purpose.”

See MAI-CR 4th 433.00.

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