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CHAPTER SIX
THE LAW GOVERNING THE USE OF FORCE
Learning Objectives
After reading this chapter, students will be able to:
1. Identify the three key points for determining when force is justified.
3. Determine how “stand your ground” laws affect the general rules for using force and the
effect such laws have on the “castle” doctrine.
5. Explain why the Fourth Amendment applies to use of force by a police officer.
7. List the people who may use force in the discipline of children.
Lesson Plan
Correlated to PowerPoints
I. Self-Defense and the Defense of Others – Assignment Number 1, 4
Learning Objective 1: Identify the three key points for determining when force is justified.
Learning Objective 2: Describe the “castle” doctrine and explain what it says.
Learning Objective 3: Determine how “stand your ground” laws affect the general rules for
using force and the effect such laws have on the “castle” doctrine.
What-If Scenario
Steve entered Terry’s apartment and Terry told him to leave. Steve left but came back and
shook the door. Steve left and returned to his own apartment. Terry followed Steve and
entered his apartment without permission. Steve stabbed Terry with a knife. If charged with
assault what is Steve’s best defense?
A. Section 3.04 of the Model Penal Code
1. Force can be used in self-protection “when the actor believes that such
force is immediately necessary for the purpose of protecting himself
against the use of unlawful force by such other person on the present
occasion.”
B. Key points in determining the lawfulness of force in self-defense or the defense of
another
1. Unlawfulness
3. Reasonableness
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a. So long as belief is reasonable it does not need to be correct
What-If Scenario
A 70-year-old, 100-pound woman becomes angry at a 25-year-old, 200-pound man and begins
to hit him with an umbrella. What action may the man take to defend himself? Is his action
limited? If so, why?
Media Tool
The limits of self-defense
http://abcnews.go.com/blogs/headlines/2012/05/trayvon-martin-case-does-
zimmermans-self-defense-claim-depend-on-who-started-the-fight/
o Article discusses the issue of self-defense in the trial of George
Zimmerman for the killing of Trayvon Martin. The discussion
includes questions important to the plea of self-defense.
o Discussion: What are the important issues to the self-defense plea
in this case? How do the students think the jurors will rule on the
case? If the case has ended discuss the verdict and have students
discuss their agreement/disagreement with the jurors.
C. Good Samaritan laws.
1. Encourage but do not require involvement
D. Some states have enacted statutes that require people witnessing an assault to take
limited action, such as calling the police.
E. The use of deadly force in self-defense or the defense of others.
1. All people, including law enforcement officers, may use deadly force, but
2. Some states impose a duty to retreat
F. The Florida “stand your ground” law.
Media Tool
Florida stand your ground law
http://www.huffingtonpost.com/2012/11/27/loud-music-leads-to–
murder_n_2200708.html
o Video discusses the case of Michael Dunn who is charged with
murder and attempted murder and is invoking the stand your
ground law in his defense.
o Discussion: What did you learn from the video that may be
important to the defense? How does race play a part in cases such
as this? What further information would you need to make a
determination regarding the legitimacy of the defendant’s stand
your ground plea?
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1. A person who is not engaged in an unlawful activity and who is attacked
in any other place where he or she has a right to be has no duty to retreat
2. Since the Florida statute was passed, at least 29 other states have passed
similar laws or are considering such laws.
G. Loss of self-defense privilege for a wrongdoer or an aggressor
What-If Scenario
Shelly discovers Tammy breaking into her car. Shelly grabs Tammy and tries to restrain her. To
escape, Tammy punches Shelly and runs away. Which person used lawful force? Which person
used unlawful force? What charges might result from this event?
1. If the person asserting self-defense is engaged in unlawful activity, such as
2. State statutes and court decisions recognize two situations in which the
H. The “Castle” doctrine and the minority duty-to-retreat exception to that doctrine
2. Some states have adopted “make my day” rules, which put no limits on
the use of deadly force by the occupant of a dwelling
4. In a few states the “castle” doctrine has a duty to retreat
Class Discussion/Activity
The California “Home Protection Bill of Rights” presumes that a person
using deadly force on an intruder acted in reasonable fear of death or great
bodily harm to himself or herself or a member of the household. Do you
agree or disagree with such a presumption? Does the castle doctrine
encourage gun ownership?
I. Battered women and domestic homicides
Class Discussion/Activity
The National Criminal Justice Reference Service offers free online
publications on a broad range of criminal justice topics. Under the topic of
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“Victims,” students can find a number of reports on research studies of
battered women. Understanding the cycle of violence that battered
spouses experience can help students develop more informed opinions
about the “battered woman’s defense.” The Battered Women’s Clemency
Project in Michigan helps battered women who have been convicted of
murder to petition the state governor for clemency. Its website is very
informative.
What-If Scenario
A 33-year-old woman was charged with murder after shooting her husband with a shotgun. She
testified in her own defense and stated that her husband had abused her physically and
sexually during their marriage. She also testified that the shotgun went off accidentally. What
facts are important to the outcome of this case? What is the most likely conviction? Would you
convict the wife?
1. The National Clearinghouse for the Defense of Battered Women states
that every year 500 to 750 women kill men who abused them
3. To lawfully use deadly force in self-defense, a real or reasonable fear of
imminent death or great bodily harm must exist
4. Battered woman defense
II. The use of force in the defense of property
Class Discussion/Activity
What prompted the change in most states, if not all, that a person cannot
use deadly force in the defense of property. Do you agree with this
change? Should a property owner be allowed to use a booby trap as long
as notice, for example by use of a sign, is provided to an intruder?
Why/why not?
2. The interference with the property must be unlawful
4. The amount of force must be reasonable under the circumstances
6. Virtually all states permit owners of real estate to use non-deadly force to
evict trespassers from their property or protect the real estate from
imminent harm
III. The use of force in making an arrest – Assignment Number 2
Learning Objective 4: List the circumstances that justify a police officer using non-deadly
force in making an arrest.
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Learning Objective 5: Explain why the Fourth Amendment applies to use of force by a police
officer.
Learning Objective 6: Identify the circumstances that would justify the use of deadly force by a
police officer.
Media Tool
The Philadelphia police accused of using excessive force to arrest teen
http://philadelphia.cbslocal.com/2012/06/05/philadelphia-police-accused-of–
using-excessive-force-to-arrest-teen/
o Video shows force used during arrest of teen and interviews with
family members and police officer regarding what is happening in
the video and the consequences to the teen.
o Discussion: Does it appear that the police in the video used
excessive force in arresting the teenager in the video? If you
could investigate this event what questions would you ask? What
additional information would you want to have? Based on the
information available in the video and the article would you say
that the officers are guilty of excessive force? Why/why not?
A. Force may not be used legally in making an arrest unless the arrest is a lawful,
custodial arrest made in good faith.
B. Force is unnecessary in most arrests.
C. If necessary an officer may only use force reasonably believed necessary to:
1. Detain the offender, make the arrest, and conduct lawful searches
3. Prevent an escape and retake the person if an escape occurs
4. Protect the officer, others, and the prisoner, if necessary
Class Discussion/Activity
Do you agree that law enforcement officers should be able to force an
uncooperative driver suspected of DUI to provide a blood sample? How
have the courts justified such action?
D. Standards for the use of deadly force established by the U.S. Supreme Court.
2. Graham v. O’Connor
Class Discussion/Activity
Students can go online and research the case of Couture v. Com., 656
S.E.2d 425, 2008. Have students work in small groups to discuss the case.
Have student discuss the following questions. Why did the court made its
decision? What factors were important to the decision? Would a normal
citizen be held to the same standard as the police officer in a similar
situation? Why are police officers held to a higher standard than civilians?
Students may debate the conclusion of the court or, after working in small
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groups, discuss the reasons they found in favor of and against the court’s
decision as a class.
E. Determination of an unreasonable seizure.
1. Determined under the Fourth Amendment
2. Requires a careful balancing of the “nature and quality of the intrusion on the
F. Using reasonable force to obtain evidence of drunk or drugged driving.
1. In 2014, 9,967 people were killed in alcohol-related traffic accidents
3. Forced blood samples are becoming more common from uncooperative
drivers
a. Schmerber v. California
b. Missouri v. McNeeley
G. Standards for the use of deadly force established by the U.S. Supreme Court.
1. If a police officer uses excessive deadly force, murder or manslaughter
charges can be filed by state prosecutors
a. Police and the use of deadly force
b. Deadly force was excessive
c. Deadly force was not excessive
H. Use of force in resisting an unlawful arrest.
1. Under the common law, a person has a legal right to forcibly resist an
unlawful arrest
2. The old rule has been changed by court decisions and statutes in most states,
however, some states have retain the common law rule
I. The use of Tasers and other force in traffic stops
1. McKenney v. Harrison
III. Disciplining children – Assignment Number 3
Learning Objective 7: List the people who may use force in the discipline of children.
Media Tool
Parenting – Kids and discipline across cultures
http://www.dailymotion.com/video/xqiy77_parenting-kids-and-discipline-
across-cultures_travel#.UcnEbTvVCSo
o Video discusses use of force by parents in other countries.
o Discussion: Discuss the use of force by parents in disciplining
their children. Is it appropriate to use force at times? If so, when
are those times? Discuss the differences in cultures that may
impact the use of force in parenting in different countries. Should
the United States make it illegal for parents to use corporal
punishment as have some other countries? Why/why not?
A. Under the common law, a parent or a person in loco may use a reasonable amount of
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force in disciplining a child.
B. Teachers may use reasonable force to discipline children in their charge.
C. Law enforcement officers, neighbors, and other adults who see children misbehave
may not discipline a child (or children), although they may use reasonable force to
prevent damage to property or injury to other persons or themselves.
Lecture Notes
With self-defense, defense of others, and defense of property, the defendant admits to
committing the act and intending to commit the act. He or she is not offering an excuse for their
behavior, they are offering a justification. The defendant intended to cause harm, but the
defendant isn’t considered criminally responsible because the act was justified. For example, a
burglar breaks into your house and you have to use force to protect yourself, your family, and
your property. However, the burglar ends up getting assaulted or killed in the process. In some
cases, the homeowner could easily claim self-defense. However, in many self-defense cases we
must look at the actual force that was being used and ask: Was it appropriate? Did the victim
turn into the aggressor? Was the suspect trying to flee/retreat and the victim continued to
Self-defense is a common defense. Why? Many violent crimes begin with verbal, even physical
confrontations that “get out of hand.” One person or group yells or taunts another person or
group. Sometimes the participants are intoxicated by drugs or alcohol. Before you know it, the
fight is on. Who started it? Who is defending himself or herself? Who is the aggressor? There
the stories/reports generally brought to the publics’ attention? How do they believe this
information, often provided by the media, may impact the view that people have of law
enforcement?
Many parents in the United States believe that there are times when it is necessary to spank a
child. When does punishment cross the line to abuse? Discuss with students what they believe is
appropriate and not appropriate. Ask students who they believe should be allowed to physically
discipline children. Do they agree with the U.S. Supreme Court holding in Ingraham v. Wright?
Why/why not? What was the reasoning of the court in that case?
Key Terms
self-defense – The elements to evaluate whether an act of force for self-defense is justified
include the unlawfulness of the other’s action, the necessity to defend oneself immediately, and
the reasonableness of the act of self-defense under the circumstances. (p. 144)
defense of another – The elements to evaluate whether an act of force for defense of another is
justified include the unlawfulness of the action toward the other, the necessity to defend the other
immediately, and the reasonableness of the act of defense under the circumstances. (p. 144)
deadly force – Force that is likely to cause or is capable of causing death or serious bodily
injury. (p. 145)
“stand your ground” laws – Recent laws passed in many states that permit using deadly force in
response to an unlawful attack rather than the traditional “duty to retreat” policy. (p. 146)
“castle” doctrine – The doctrine permitting people who have been assaulted in their homes by a
trespasser to stand their ground and use such force as is necessary and reasonable to defend
themselves. (p. 149)
“make my day” rules – Rules adopted by some states that put no limits on the use of deadly
force by the occupant of a dwelling in response to a trespasser. (p. 149)
battered woman defense – Evidence of past abuse offered by women charged with violence
against their abusers to show its psychological effects as part of their claim of self-defense. (p.
151)
unreasonable seizure – A seizure made by a government officer that is unreasonable under the
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Assignments
1. What is the “battered woman defense” and how do courts treat such claims? Students
2. Discuss the current state of the law with regard to forcing an uncooperative driver
suspected of DUI to submit to a blood test should the driver refuse to consent. What is the
reasoning of the courts that have upheld such laws? Have students consult their state’s
3. Under what circumstances can parents and school personnel use force to discipline
children? How much force can be used? Have students consult their state’s laws about
4. Have students read: http://www.msnbc.msn.com/id/14095385/
Break your students into two groups. Have one group prepare an argument for murder
Case Analysis and Writing Exercises
1. Was the use of force justified in the following situation? The defendant was awakened
around midnight by noise in the hallway of his apartment building. He walked into the hall,
where he saw a man loudly knocking at a neighbor’s door. The defendant told the man to
leave, and after an exchange of words, the defendant claims the man threw a punch at him.
The defendant then struck the man, knocking him down a flight of stairs. At the defendant’s
trial for assault he contends he was privileged to use force because the other man was in the
defendant’s “castle”. As a result, the defendant contends, he had no duty to retreat. Is the
defendant correct? See State v. Devens, 852 N.W.2d 255 (Minn. 2014). Would it change your
answer if this had happened in a “stand your ground” state?
2. When a police officer is charged with assault based on force used by the officer during a
lawful arrest, how should the jury be instructed to evaluate the officer’s claim that the force
used was not excessive? Does the officer have to consider other options to the use of force,
such as a duty to retreat? Is it relevant that the victim was resisting arrest? To what extent?
3. Police officers were summoned to a residence by a 911 call which said a person there was
having seizures. Police and emergency medical personnel entered the premises, and
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determined that the person should be taken to a hospital for observation. The person resisted,
kicked at the officers and medical personnel, and refused to be strapped into an EMT
transport chair. Ultimately, a police sergeant used a Taser to subdue the person.
Subsequently, the person sued the officer and city, alleging excessive force had been used.
How should a court evaluate the officer’s decision to use the Taser? Pacheco v. City of New
4. Three members of a street gang, La Sierra Brown Nights, went looking for members of a
rival gang, Tiny Winos, intending to confront the other gang over harassment by that gang.
They found seven members of Tiny Winos, and asked them, “Where you from?”, which in
The La Sierra members were charged with murder. At their trial they asserted a defense of
self-defense. Were they entitled to assert that defense? If so, what did the trial court (and the
prosecutor) do wrong? People v. Ramirez, 233 Cal. App. 4th 940 (Cal. App. 2015)