Sec. 35.00 Justification; a defense. In any prosecution for an offense, justification, as defined in sections 35.05 through 35.30, is a defense.
Sec. 35.05 Justification; generally. Unless otherwise limited by the ensuing
provisions of this article defining justifiable use of physical force, conduct
which
would otherwise constitute an offense is justifiable and not criminal when:
1. Such conduct is required or authorized by law or by a judicial decree, or
is performed by a public servant in the reasonable exercise of his official
powers, duties or functions;
or
2. Such conduct is necessary as an emergency measure to avoid an imminent public
or private injury which is about to occur by reason of a situation occasioned
or developed through no fault of the actor, and which is of such gravity that,
according to ordinary standards of intelligence and morality, the desirability
and urgency of avoiding such injury clearly outweigh the desirability of avoiding
the injury sought to be prevented by the statute defining the offense in issue.
The necessity and
justifiability of such conduct may not rest upon considerations pertaining only
to the morality and advisability of the statute, either in its general application
or with respect to its application to a particular class of cases arising thereunder.
Whenever evidence relating to the defense of justification under this subdivision
is offered by the defendant, the court shall rule as a matter of law whether
the claimed facts and circumstances would, if established, constitute a defense.
Sec. 35.10 Justification; use of physical force generally. The use of physical
force upon another person which would otherwise constitute an offense is justifiable
and not criminal under any of the following circumstances:
1. A parent, guardian or other person entrusted with the care and supervision
of a person under the age of twenty-one or an incompetent person, and a teacher
or other person entrusted with the care and supervision of a person under the
age of twenty-one for a special purpose, may use physical force, but not deadly
physical force, upon such person when and to the extent that he reasonably believes
it necessary to maintain discipline or to promote the welfare of such person.
2. A warden or other authorized official of a jail, prison or correctional institution
may, in order to maintain order and discipline, use such physical force as is
authorized by the correction law.
3. A person responsible for the maintenance of order in a common carrier of
passengers, or a person acting under his direction, may use physical force when
and to the extent that he reasonably believes it necessary to maintain order,
but he may use deadly physical force only when he reasonably believes it necessary
to prevent death or serious physical injury.
4. A person acting under a reasonable belief that another person is about to
commit suicide or to inflict serious physical injury upon himself may use physical
force upon such person to the extent that he reasonably believes it necessary
to thwart such result.
5. A duly licensed physician, or a person acting under his
direction, may use physical force for the purpose of
administering a recognized form of treatment which he reasonably
believes to be adapted to promoting the physical or mental health
of the patient if (a) the treatment is administered with the
consent of the patient or, if the patient is under the age of
eighteen years or an incompetent person, with the consent of his
parent, guardian or other person entrusted with his care and
supervision, or (b) the treatment is administered in an emergency
when the physician 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.
6. A person may, pursuant to the ensuing provisions of this
article, use physical force upon another person in defense of
himself or a third person, or in defense of premises, or in order
to prevent larceny of or criminal mischief to property, or in
order to effect an arrest or prevent an escape from custody.
Whenever a person is authorized by any such provision to use
deadly physical force in any given circumstance, nothing
contained in any other such provision may be deemed to negate or
qualify such authorization.
Sec. 35.15 Justification; use of physical force in defense of a
person.
1. A person may, subject to the provisions of subdivision
two, use physical force upon another person when and to the
extent he reasonably believes such to be necessary to defend
himself or a third person from what he reasonably believes to be
the use or imminent use of unlawful physical force by such other
person, unless:
(a) The latter`s conduct was provoked by the actor himself
with intent to cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such
case his use of physical force is nevertheless justifiable if he
has withdrawn from the encounter and effectively communicated
such withdrawal to such other person but the latter persists in
continuing the incident by the use or threatened imminent use of
unlawful physical force; or
(c) The physical force involved is the product of a combat
by agreement not specifically authorized by law.
2. A person may not use deadly physical force upon another
person under circumstances specified in subdivision one unless:
(a) He reasonably believes that such other person is using
or about to use deadly physical force. Even in such case,
however, the actor may not use deadly physical force if he knows
that he can with complete safety as to himself and others avoid
the necessity of so doing by retreating; except that he is under
no duty to retreat if he is:
(i) in his dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting
a police officer or a peace officer at the latter`s direction,
acting pursuant to section 35.30; or
(b) He reasonably believes that such other person is
committing or attempting to commit a kidnapping, forcible rape,
forcible sodomy or robbery; or
(c) He reasonably believes that such other person is
committing or attempting to commit a burglary, and the
circumstances are such that the use of deadly physical force is
authorized by subdivision three of section 35.20.
Sec. 35.20 Justification; use of physical force in defense of
premises and in defense of a person in the
course of burglary.
1. Any person may use physical force upon another person
when he reasonably believes such to be necessary to prevent or
terminate what he reasonably believes to be the commission or
attempted commission by such other person of a crime involving
damage to premises. He may use any degree of physical force,
other than deadly physical force, which he reasonably believes to
be necessary for such purpose, and he may use deadly physical
force if he reasonably believes such to be necessary to prevent
or terminate the commission or attempted commission of arson.
2. A person in possession or control of any premises, or a
person licensed or privileged to be thereon or therein, may use
physical force upon another person when he reasonably believes
such to be necessary to prevent or terminate what he reasonably
believes to be the commission or attempted commission by such
other person of a criminal trespass upon such premises. He may
use any degree of physical force, other than deadly physical
force, which he reasonably believes to be necessary for such
purpose, and he may use deadly physical force in order to prevent
or terminate the commission or attempted commission of arson, as
prescribed in subdivision one, or in the course of a burglary or
attempted burglary, as prescribed in subdivision three.
3. A person in possession or control of, or licensed or
privileged to be in, a dwelling or an occupied building, who
reasonably believes that another person is committing or
attempting to commit a burglary of such dwelling or building, may
use deadly physical force upon such other person when he
reasonably believes such to be necessary to prevent or terminate
the commission or attempted commission of such burglary.
4. As used in this section, the following terms have the
following meanings:
(a) The terms "premises," "building" and "dwelling"
have the
meanings prescribed in section 140.00;
(b) Persons "licensed or privileged" to be in buildings or
upon other premises include, but are not limited to, police
officers or peace officers acting in the performance of their
duties.
Sec. 35.25 Justification; use of physical force to prevent or
terminate larceny or criminal mischief.
A person may use physical force, other than deadly physical
force, upon another person when and to the extent that he
reasonably believes such to be necessary to prevent or terminate
what he reasonably believes to be the commission or attempted
commission by such other person of larceny or of criminal
mischief with respect to property other than premises.
Sec. 35.27 Justification; use of physical force in resisting arrest prohibited. A person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer or peace officer when it would reasonably appear that the latter is a police officer or peace officer.
Sec. 35.30 Justification; use of physical force in making an
arrest or in preventing an escape.
1. A police officer or a peace officer, in the course of
effecting or attempting to effect an arrest, or of preventing or
attempting to prevent the escape from custody, of a person whom
he reasonably believes to have committed an offense, may use
physical force when and to the extent he reasonably believes such
to be necessary to effect the arrest, or to prevent the escape
from custody, or to defend himself or a third person from what he
reasonably believes to be the use or imminent use of physical
force; except that he may use deadly physical force for such
purposes only when he reasonably believes that:
(a) The offense committed by such person was:
(i) a felony or an attempt to commit a felony involving the
use or attempted use or threatened imminent use of physical force
against a person; or
(ii) kidnapping, arson, escape in the first degree, burglary
in the first degree or any attempt to commit such a crime; or
(b) The offense committed or attempted by such person was a
felony and that, in the course of resisting arrest therefor or
attempting to escape from custody, such person is armed with a
firearm or deadly weapon; or
(c) Regardless of the particular offense which is the
subject of the arrest or attempted escape, the use of deadly
physical force is necessary to defend the police officer or peace
officer or another person from what the officer reasonably
believes to be the use or imminent use of deadly physical force.
2. The fact that a police officer or a peace officer is
justified in using deadly physical force under circumstances
prescribed in paragraphs (a) and (b) of subdivision one does not
constitute justification for reckless conduct by such police
officer or peace officer amounting to an offense against or with
respect to innocent persons whom he is not seeking to arrest or
retain in custody.
3. A person who has been directed by a police officer or a
peace officer to assist such police officer or peace officer to
effect an arrest or to prevent an escape from custody may use
physical force, other than deadly physical force, when and to the
extent that he reasonably believes such to be necessary to carry
out such police officer`s or peace officer`s direction, unless he
knows that the arrest or prospective arrest is not or was not
authorized and he may use deadly physical force under such
circumstances when:
(a) He reasonably believes such to be necessary to defend
himself or a third person from what he reasonably believes to be
the use or imminent use of deadly physical force; or
(b) He is directed or authorized by such police officer or
peace officer to use deadly physical force unless he knows that
the police officer or peace officer himself is not authorized to
use deadly physical force under the circumstances.
4. A private person acting on his own account may use
physical force, other than deadly physical force, upon another
person when and to the extent that he reasonably believes such to
be necessary to effect an arrest or to prevent the escape from
custody of a person whom he reasonably believes to have committed
an offense and who in fact has committed such offense; and he may
use deadly physical force for such purpose when he reasonably
believes such to be necessary to:
(a) Defend himself or a third person from what he reasonably
believes to be the use or imminent use of deadly physical force;
or
(b) Effect the arrest of a person, who has committed murder,
manslaughter in the first degree, robbery, forcible rape or
forcible sodomy and who is in immediate flight there from.
5. A guard, police officer or peace officer who is charged
with the duty of guarding prisoners in a detention facility, as
that term is defined in section 205.00, or while in transit to or
from a detention facility, may use physical force when and to the
extent that he reasonably believes such to be necessary to
prevent the escape of a prisoner from a detention facility or
from custody while in transit thereto or there from.