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

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

State: Missouri

Missouri Approved Instructions–Criminal (MAI-CR) 4th

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.

 

(v. 7-1-17)

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