Force in Defense of Third Persons: Defined and Allowed

(a) Except as otherwise provided by this Section and § 7.96, the use of force upon or toward the person of another is justifiable to protect a third person when: (1) the defendant would be justified under § 7.84 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect; (2) under the circumstances as the defendant believes them to be, the person whom he seeks to protect would be justified in using such protective force; and (3) the defendant believes that his intervention is necessary for the protection of such other person. (b) Notwithstanding Subsection (a): (1) when the defendant would be obliged under Paragraph (2) of Subsection (b) of § 7.86 to retreat or take other action, he is not obliged to do so before using force for the protection of another person, unless he knows that he can thereby secure the complete safety of such other person; (2) when the person whom the defendant seeks to protect would be obliged under Paragraph (2) of Subsection (b) of § 7.86 to retreat or take similar action if he knew that he could obtain complete safety by so doing, the defendant is obliged to try to cause him to do so before using force in his protection if the defendant knows that he can obtain complete safety in that way; and (3) neither the defendant nor the person whom he seeks to protect is obliged to retreat when in the other’s dwelling or place of work to any greater extent than in his own. SOURCE: G.P.C. § 197(1), (3); M.P.C. § 3.05; Cal. § 630, 635 (1971); Mass. ch. 263, § 36, 39; N.J. § 2C:3-5. CROSS-REFERENCES: §§ 7.86 and 7.96 of this Code. COMMENT: Section 7.88 continues and expands upon the defense of the use of force to protect a third person as found in present law. This defense is expanded in that the person using force is not limited to any relationship, stated in law, with a person he is protecting. Moreover, the Section permits intervention under the facts as the defendant believes them to be, subject to §§ 7.96 and 7.84 of this Code. It might bear emphasis, that the intervenor might well be protected even though the person on whose behalf he acts could not, in fact, use self-defense. Nevertheless, this Section limits the right of self-defense, as popularly practiced on Guam, in that a person assisting another in, say, a fight outside a bar, must urge his friend to retreat if retreat is possible before he can claim the right to self-defense. He cannot simply barge in and start fighting without more.