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Chapter 33 - Defense of Justification

Chapter 33 - Defense of Justification

46.3301 Definitions.


As used in this chapter:

(a) "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.

(b) "Dwelling" means any building or inhabitable structure, whether permanent, movable, or temporary, or a portion of it, which is for the time being the actor's home or place of lodging.

(c) "Premises" includes any building, inhabitable structure and any real property.

(d) "Private person" means any person other than a law enforcement officer.

46.3302 Civil remedies unaffected.


The fact that conduct is justified under this chapter does not abolish nor impair any remedy for that conduct which is available in any civil action.

46.3303 Execution of public duty.


(a) Unless inconsistent with the provisions of this chapter defining the justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when that conduct is required or authorized by a statutory provision or by a judicial decree. Among those kinds of provisions and decrees are:

(1) laws defining duties and functions of public servants;

(2) laws defining duties of private persons to assist public servants in the performance of their functions;

(3) laws governing the execution of legal process;

(4) laws governing the military services and the conduct of war; and

(5) judgments and orders of courts.

(b) The defense of justification afforded by subsection (a) applies:

(1) when a person reasonably believes his conduct to be required or authorized by the judgment or directions of a competent court or tribunal or in the legal execution of legal process, in spite of lack of jurisdiction of the court or defect in the legal process;

(2) when a person reasonably believes his conduct to be required or authorized to assist a public servant in the perfom1ance of his duties, in spite of that the public servant exceeded his legal authority;

(c) The defendant has the burden of injecting the issue of justification under this section.

46.3304 Justification-Avoidance of harm or evil.


(a) Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable; provided, that:

(1) the harm or evil sought to be avoided by the conduct is greater than that sought to be prevented by the law defining the offense charged;

(2) neither this title nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

(3) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

(b) When the defendant was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

46.3305 Use of force in defense of persons.


(a) A person may, subject to subsection (b), use physical force upon another person when and to the extent he reasonably believes it to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful force by the other person unless:

(1) the actor was the initial aggressor; except that in that case his use of force is nevertheless justifiable, provided:

(A) he has withdrawn from the encounter and effectively communicated that withdrawal to the other person but the latter persists in continuing the incident by the use or threatened use of unlawful force

(B) he is a law enforcement officer and as such is an aggressor under 46.3308;

(C) the aggressor is justified under some other provision of this chapter or other provision of law; or

(D) under the circumstances as the actor reasonably believes them to be, the person whom he seeks to protect would not be justified in using that protective force.

(b) A person may not use deadly force upon another person under the circumstances specified in subsection (a) unless he reasonably believes that the deadly force is necessary to protect himself or another against death, serious physical injury, rape, sodomy, or kidnapping.

(c) The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.

(d) The defendant has the burden of injecting the issue of justification under this section.

46.3306 Use of physical force in defense of premises.


(a) A person in possession or control of premises or a person who is licensed or privileged to be there, may, subject to subsection (b), use physical force upon another person when and to the extent that he reasonably believes it necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of the crime of trespass by the other person.

(b) A person may use deadly force under circumstances described in subsection (a) only:

(1) when the use of deadly force is authorized under other sections of this chapter; or

(2) when he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the trespasser to commit arson or burglary upon his dwelling.

(c) The defendant has the burden of injecting the issue of justification under this section.

46.3307 Use of physical force in defense of property.


(a) A person may, subject to the limitations of subsection (b) use physical force upon another person when and to the extent that he reasonably believes it necessary to prevent what he reasonably believes to be the commission or attempted commission by that person of stealing, property damage, or tampering in any degree.

(b) A person may use deadly force under circumstances described in subsection (a) only when the use of deadly force is authorized under other sections of this chapter.

(c) The jurisdiction afforded by this section extends to the use of physical restraint as pro-tective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.

(d) The defendant has the burden of injecting the issue of justification under this section.

46.3308 Law enforcement officer's use of force in making an arrest.


(a) A law enforcement officer need not retreat nor desist from efforts to effect the arrest, or from efforts to prevent the escape from custody, of a person he reasonably believes to have committed an offense because of resistance or threatened resistance of the arrested person. In addition to the use of physical force authorized under other sections of this chapter he is subject to subsections (b) and (c) justified in the use of the physical force as he reasonably believes is immediately necessary to effect the arrest or to prevent the escape from custody.

(b) The use of any physical force in making an arrest is not justified under this section unless the law enforcement officer reasonably believes the arrest is lawful.

(c) A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only:

(1) when it is authorized tinder other sections of this chapter; or

(2) when he reasonably believes that the use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested may endanger life or inflict serious physical injury unless arrested without delay.

(d) The defendant has the burden of injecting the issue of justification under this section.

46.3309 Private person's use of force in making an arrest.


(a) A private person who has been directed by a person he reasonably believes to be a law enforcement officer to assist that officer to effect an arrest or to prevent escape from custody may, subject to the limitations of subsection (c), use physical force when and to the extent that he reasonably believes it to be necessary to carry out that officer's direction unless he knows or believes that, the arrest or prospective arrest is not or was not authorized.

(b) A private person acting on his own account may, subject to the limitations of subsection (c), use physical force to effect arrest or prevent escape only when and to the extent it is immediately necessary to effect the arrest, or to prevent escape from custody, of a person whom he reasonably believes to have committed a crime.

(c) A private person in effecting an arrest or in preventing escape from custody is justified in using deadly force only:

(1) when it is authorized under other sections of this chapter;

(2) when he reasonably believes it to be authorized under the circumstances and he is directed or authorized by a law enforcement officer to use deadly force; or

(3) when he reasonably believes the use of deadly force is immediately necessary to effect the arrest of a person who at that time and in his presence:

(A) committed or attempted to commit a class A felony or murder; or

(B) is attempting to escape by use of a deadly weapon.

(d) The defendant has the burden of injecting the issue of justification under this section.

46.3310 Use of force to prevent escape from confinement.


(a) A guard or other law enforcement officer may, subject to subsection (b), use physical force when he reasonably believes it to be immediately necessary to prevent escape from confinement or in transit to it or from it.

(b) A guard or other law enforcement officer may use deadly force under circumstances described in subsection (a) only:

(1) when the use of deadly force is authorized under other sections of this chapter: or

(2) when he reasonably believes there is a substantial risk that the escapee will endanger human life or cause serious physical injury unless the escape is prevented.

(c) The defendant has the burden of injecting the issue of justification under this section.

46.3311 Use of force by persons with responsibility for care, discipline, or safety of others.


(a) The use of physical force by an actor upon another person is justifiable when the actor is a parent, guardian, or other person entrusted with the care and supervision of a minor or an incompetent person or when the actor is a teacher or other person entrusted with the care and supervision of a minor for a special purpose; and

(1) the actor reasonably believes that the force used is necessary to promote the welfare of a minor or incompetent person, or, if the actor's responsibility for the minor is for special purposes, to further that special purpose or to maintain reasonable discipline in a school, class or other group; and

(2) the force used is not designed to cause or believed to create a substantial risk of causing death, serious physical injury, disfigurement, extreme pain, or extreme emotional distress.

(b) A warden or other authorized official of a jail, prison, or correctional facility may, in order to maintain order and discipline, use whatever physical force, is authorized by law, including deadly force.

(c) The use of physical force by an actor upon another person is justifiable when the actor is a person responsible for the operation of or the maintenance of order in a vehicle or other carrier of passengers and the actor reasonably believes that that force is necessary to prevent interference with its operation or to maintain order in the vehicle or other carrier; except, that deadly force may be used only when the actor reasonably believes it necessary to prevent death or serious physical injury.

(d) The use of physical force by an actor upon another person is justified when the actor is a physician or a person assisting at his direction: and

(1) the force is used for the purpose of administering a medically acceptable form of treatment which the actor reasonably believes to be adapted to promoting the physical or mental health of the patient; and

(2) the treatment is administered with the consent of the patient or, if the patient is a minor or an incompetent person, with the consent of the parent, guardian, or other person legally competent to consent on his behalf, or the treatment is administered in an emergency when the actor reasonably believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.

(e) The use of physical force by an actor upon another person is justifiable when the actor acts under the reasonable belief that:

(1) the other person is about to commit suicide or to inflict serious physical injury upon himself; and

(2) the force used is necessary to thwart the result.

(f) The defendant has the burden of injecting the issue of justification under this section.