Author Topic: Justification -- Use of force in self-protection  (Read 2995 times)

fdegree

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Justification -- Use of force in self-protection
« on: December 23, 2013, 04:54:12 PM »
In an attempt to simplify the code, and interpret the legal terminology into everyday language, I'm going to give my interpretation of the "Use Of Force" codes.  Now, I am not a lawyer, and my interpretation may not even be close to a lawyers interpretation, so don't take mine as "gospel".  Also, I'm hoping others will chime in if they think my interpretation is not quite right.
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TITLE 11

Crimes and Criminal Procedure

Delaware Criminal Code

CHAPTER 4. DEFENSES TO CRIMINAL LIABILITY

§ 464. Justification -- Use of force in self-protection.

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(a) The use of force upon or toward another person is justifiable when the defendant believes that such force is immediately necessary for the purpose of protecting the defendant against the use of unlawful force by the other person on the present occasion.

I can legally use physical force (not deadly force) to protect myself if someone else is using, or about to use, physical force against me.

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(b) Except as otherwise provided in subsections (d) and (e) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as the person believes them to be when the force is used, without retreating, surrendering possession, doing any other act which the person has no legal duty to do or abstaining from any lawful action.

I do not have to retreat or give up my possessions during a physical (not deadly) confrontation?

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(c) The use of deadly force is justifiable under this section if the defendant believes that such force is necessary to protect the defendant against death, serious physical injury, kidnapping or sexual intercourse compelled by force or threat.

I can legally use deadly force if I am about to be killed, seriously injured, kidnapped or raped.

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(d) The use of force is not justifiable under this section to resist an arrest which the defendant knows or should know is being made by a peace officer, whether or not the arrest is lawful.

I can not resist a police officers arrest regardless of the lawfulness of his actions.

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(e) The use of deadly force is not justifiable under this section if:

(1) The defendant, with the purpose of causing death or serious physical injury, provoked the use of force against the defendant in the same encounter; or

(2) The defendant knows that the necessity of using deadly force can be avoided with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that the defendant abstain from performing an act which the defendant is not legally obligated to perform except that:

a. The defendant is not obliged to retreat in or from the defendant's dwelling; and

b. The defendant is not obliged to retreat in or from the defendant's place of work, unless the defendant was the initial aggressor; and

c. A public officer justified in using force in the performance of the officer's duties, or a person justified in using force in assisting an officer or a person justified in using force in making an arrest or preventing an escape, need not desist from efforts to perform the duty or make the arrest or prevent the escape because of resistance or threatened resistance by or on behalf of the person against whom the action is directed.

I can not use deadly force if I started the confrontation.
I can not use deadly force if I can retreat safely or give up my possessions safely or safely comply with someone's command.
Although, if I am in my home, or place of employment, I do not have to retreat...therefore deadly force would be warranted.

Now, the last paragraph [(2)c.] is a little confusing to me.  Can someone chime in and clarify this one?
« Last Edit: December 26, 2013, 04:45:01 AM by fdegree »
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ESPMan

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Re: Justification -- Use of force in self-protection
« Reply #1 on: December 23, 2013, 05:51:26 PM »
I would like to think the last section means you can use deadly force when acting as "backup" to a police officer in need of it, i.e.: if an officer is making an arrest and the suspect violently resists, even reaching for the officers sidearm, one could, by law, assist an officer in the arrest or confrontation.

Thats how it looks to me.
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Cbmarine

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Re: Justification -- Use of force in self-protection
« Reply #2 on: December 23, 2013, 05:56:17 PM »
Bravo! Great way to focus on the wording of the law.

Starting with the last subparagraph, let's parse it

c. A public officer justified in using force in the performance of the officer's duties,
   or a person justified in using force in assisting an officer
   or a person justified in using force in making an arrest
   or preventing an escape,
need not desist from efforts
   to perform the duty
  or make the arrest
  or prevent the escape
because of resistance
  or threatened resistance
by [the person being arrested]
  or on behalf of the person against whom the action is directed [one of BGs buddies].
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fdegree

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Re: Justification -- Use of force in self-protection
« Reply #3 on: December 24, 2013, 02:27:19 AM »
I would like to think the last section means you can use deadly force when acting as "backup" to a police officer in need of it, i.e.: if an officer is making an arrest and the suspect violently resists, even reaching for the officers sidearm, one could, by law, assist an officer in the arrest or confrontation.

Thats how it looks to me.

I agree with this interpretation, but to me, there seems to be a little more to it...

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A public officer justified in using force in the performance of the officer's duties,

Pretty self explanatory...a police officer doing his job

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or a person justified in using force in assisting an officer

As ESPMan described...someone helping the officer, if the officer is struggling with the suspect.

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or a person justified in using force in making an arrest or preventing an escape

This is the part that I'm unsure of...is this saying the average citizen can make a "Citizens Arrest" in the absence of the police?  Or, is it the categorization of some other "trained" individual...i.e. - a security guard?
« Last Edit: December 26, 2013, 05:00:44 AM by fdegree »
Violence, when there is an alternative, is immoral.
Violence, when there is no alternative, is survival.
-Unknown-

A battle avoided cannot be lost.
-Sun Tzu-