Nowadays democratization increases exponentially, which leads to the popularization of the principle of limiting the use or threat of force. However, the use of force should be clearly stated in law along with the situations in which it can be used. The modern society is based on legislation. Each country has its own separate legislation, but nevertheless, according to the constitutions of many countries, every person has the right to self-defense and the use of force.
Also, the police can legally use force during arrests and in preventing crime. Civilians may also use force to prevent crimes or to conduct a self-arrest of the offender. There are certain laws that govern the use of force against children. However, every law has a number of gotchas that should be considered in great detail.
Keywords: legislation, constitutions, self-defense, use of force, arrests, self-arrest
The situations in which a citizen feels entitled to harm, does grievous bodily damage or uses weapons against another person appear quite often in criminal practice and are often controversial. Therefore, the importance of knowledge of the law is obvious. To understand the importance of this issue exactly, it is sufficient to note that if the court finds a person justified in using force, this person will exempt himself or herself from criminal liability.
Otherwise, he or she will be prosecuted on the same basis. In such cases, it is too difficult to distinguish between legal and illegal conditions.This paper will present an overview of the laws governing the use of force by civilians and police as well as the use of force in the prevention of crime, in upbringing and arrests by civilians.
The Use of Force in Self-Defense
Self-defense is defined as the right to prevent suffering from force or violence by the use of sufficient level of force. At first glance, this definition seems rather simple, but it causes a set of questions about application to real situations. As a rule, self-defense justifies the use of force when responding to a direct threat. The threat can be either verbal, when it does not influence the target victim directly, or the threat of physical abuse. However, offensive words without the attendant threat of immediate physical violence would not justify the use of force for self-defense.
Personal self-defense is divided into melee defense, armed defense, and mental defense. For melee defense consists in the use of various types of martial arts. To improve the efficiency of self-defense, many martial arts can be mixed in a single fight. Armed self-defense involves the use of bladed weapons as well as gas sprays and batons for protection. There is strict legislation on the use and limitations on the storage of each type of weapon.
Psychic self-defense implies the possibility of proper mindset when performing self-defense. There are also other methods of self-defense, including preventing and de-escalation. De-escalation involves the use of words for protection. There is a personal alarm for self-protection of children and the elderly. It is a small device that emits a loud sound when pressing a button. In this way, it attracts attention of others.
Self-defense also has to correspond to level of threat. In other words, a person can use force in case of need to eliminate a threat. If a threat consists in the use of deadly force, the person protecting himself can kill to resist to threat. However, if a threat assumes insignificant force and the person applying self-defense uses force that can cause severe injuries or death, the claim of self-defense will not work well.
However, some states have set certain laws in relation to the use of deadly force by civilians. It depends on the development of the black market, the level of crime, and many other factors. According to the work Shoot First: Stand Your Ground Laws and Their Effect on Violent Crime and the Criminal Justice System (2013), in North Carolina there is a law according to which a person has the right to shoot if the offender illegally broke into the house, regardless of intent (p.18). This law is valid not only for crimes in homes, but also in trying to hijack cars.
The Use of Force in Crime Prevention
Crime prevention and self-defense can be caused by many factors. As it has already been mentioned, the use of force for self-defense, crime prevention, protection of other people, and lawful arrest do not require liability under the law. Different types of protection are governed by different regulations. For example, the protection of people is governed by the Common Law. According to the Constitution of the United States (n.d.), the Congress must ensure the defense of the country (Art. 1, Sec. 8, par. 1).
On the basis of this statement, it is possible to conclude that the Congress should ensure security of the nation by all means. With regard to the protection of property, there is the rule of law based on the Criminal Damage Act 1971. The regulatory framework of police arrests and crime prevention is controlled by the Criminal Law Act 1967.
Self-defense excludes the fact of the crime. According to the United States of America v. Bennie L. Peterson, Appellant (n.d.), An affirmative, unlawful act reasonably calculated to produce an affray foreboding injurious or fatal consequences (para 26). According to Suk (2008), some parts of the law are relevant to the law on criminal liability: A true man, who is without fault, is not obliged to fly from an assailant, who, by violence or surprise, maliciously seeks to take his life or do him enormous bodily harm (p.244).
Reasonable and Unreasonable Force
There is a subtle nuance about the use of force. Even if the use of force was really necessary, there are cases in which it is not reasonable. If a person has acted to protect himself, it is reasonable force, of course. However, if a person used force after some reflection or after an attack, it is called unreasonable use of force. All these details should be discussed in detail during the investigation.
As a rule, self-defense arises as a counter to a specific threat to safety, health or life of a citizen. The threat may be verbal. However, insulting words towards a victim are not a legal reason for self-defense and do not justify the use of force. In addition, the use of force in justification of self-defense loses the case of the end of the threat. For example, the offender assaulted a victim and then got scared of a patrol officer and ran away. But the victim caught up with the offender and used force. In this case, the use of force will be considered as an unreasonable response, but not as a self-defense.
Questions that consider the use of self-defense are also described in the Part 776.012 of the 2014 Florida Statuses. According to the Florida Legislature (2014), it addresses the common law defense and describes the nuance of so-called welfare of reasonable force. Also, subsection 776.013 describes the use of force in protecting homeowners from intruders. Under this subsection, the householder has the right to use force, but only in cases where that power is disproportionate.
The use of force against criminals, such as burglars and hijackers, should be considered in great detail. In such cases, lawyers should pay attention to the nature of offense, the degree of damage to both sides, etc. On the one hand, the law strongly opposed violence. On the other hand, it should encourage the participation of citizens in the capture of the offender or in the prevention of offenses.
The Use of Force by Police
In considering the use of force, it will be pertinent to recall the work Politics as a Vocation by Max Weber. In his work, Weber deduced the theory of monopoly of violence, according to which only the state has the right to use force against citizens. Weber also believed that the monopoly of violence should be one of the most important characteristics of the state. According to Weber (1919), the modern state consists of organized institutions that have succeeded in monopolizing the legitimate physical violence as a means of domination (p.4).
To this end, the States unite their funds in the hands of the leaders and functionaries of all unite with their powers. Weber's concept of the use of force occupies a prominent place in the philosophy of law and political philosophy of the twentieth century. It has made a significant contribution to the development of legal laws in many countries.
According to the International Association of Chiefs of Police/COPS Office Use of Force Symposium (2012), use of force describes the amount of effort required by police to compel compliance from an unwilling subject (p.1). Undoubtedly, every day the police are faced with different degrees of danger in carrying out their duties. It can be very difficult to properly assess optimal resistance in relation to the offender. However, the police learn that in training and during studying.
According to International Association of Chiefs of Police/COPS Office Use of Force Symposium (2012), there are five components of the use of force. The first one is the physical strength and the second one is the chemical force, the third one is the electronic force, the fourth one is a firearm, and the fifth one is deadly force. It should be noted that the police rarely used excessive force.
According the Justia U.S. Supreme Court (1989), the police have the right to use reasonable force if it is necessary for the exercise of implementing powers. The basic civil powers of arrest are described in the second half of Graham v. Connor. Under this law, any use of force that affects arrest may be legal or illegal. Any use of force that resists arrest, may be legitimate. According to the Bureau of Justice Statistics (2015), the legal use of excessive force whether the police officer reasonably is believes that such force is necessary for the achievement of the lawful purpose of police.
Police should use reasonable force when it is necessary to achieve order. Otherwise, if the police apply more force than necessary, it is considered excessive. Moreover, excessive force is illegal. In the use of force by the police commanders have an important role. They must balance the competing rights groups and minimize the use of force.
According to the New York State Law (n.d.), the police have the right to use deadly force if there is a possibility of an attempted murder or the probability of causing fatal injuries to civilians (sec. 35.30). Also it is allowed to use deadly force if the offender committed kidnapping, arson or burglary of the first degree. If the offender possesses a firearm or makes an attempt to escape after arrest, deadly force may also be applied.
However, deadly force should be applied only in cases when there is no other choice in the police. Police officers should not use deadly force if it endangers innocent civilians. During arrest, the police have the right to use any force necessary to catch the criminal. However, if the court proves that the police used excessive force, the latter will incur criminal liability.
The Use of Force in Arrests by Civilians
There are cases when civilians are compelled to arrest an offender. In such cases, they have right to use force. However, it is different from the rights which concern the use of force by a police officer. Thus, a civilian is allowed to use force if the offender has committed a serious crime. Otherwise, if a citizen acted based on guesswork even before the offender has committed an offense, the use of force is not justified.
If a citizen uses nonlethal force to arrest the offender, his or her actions can be justified provided that the offender committed the crimes. It is also important to clarify the caveat that the citizen must not use excessive force to arrest the suspect. Also a citizen has the right to use force to prevent the escape of the offender.
In some states, the use of lethal force is prohibited. It is possible to apply deadly force only in those cases when a citizen (or police) faces a real risk of serious injury or death. In such situations, the use of deadly force is justified. In other states the use of deadly force is allowed in the event of escape of the detainee criminal.
The Use of Force on Children
The use of force by parents in upbringing deserves some words. Parents have the right to use reasonable force against children. According to the Washington State Legislature (1986), physical discipline applied to a child is considered legitimate in cases when it is justified and reasonable. The use of force against children by parents (or teachers, guardians) is also considered justified only if it is used solely for the purpose of education or deterrence.
If force is used by a person who has no relation to the child, such use of force is illegal. The Washington State Legislature also provides a list of actions that are considered unreasonable in upbringing. Among these actions, the use of kicks, burns, punches, closing access to the airway and a threat of firearms etc.
When Force Cannot Be Applied
The Constitution of the United States does not regulate the use of force in self-defense, in the activities of the police, in the upbringing of a child, etc. However, in The Bill of Rights, that is an addition to the Constitution of the US, there are described several amendments to the articles of the Constitution (The Charters of Freedom, n.d.). Thus, according to Amendment II (1791), civilians have the right to possess firearms as well-organized militia is necessary to the security of a free State.
Also, Amendment III describes the balance of military forces near the house owners. According to Amendment III (1791), soldiers should not be located near a house without the consent of its owner. Amendment IV describes the peoples right to protection of individual securities, property, and homes.
According to Amendment IV (1791), the police do not have the right to search the house without probable cause and without a warrant. Also, the order must be confirmed by the statement and shall contain a description of the place that police want to search, as well as information about the owners of the house. In other cases, the use of force during a search of homes is unacceptable.
According to the Amendment V (1791), the use of force when removing objects of private property is not valid. Also, no one can resist the lynching, or else any other court, which is not the Grand Jury. Also, the use of force is inadmissible under interrogation testify. It is forbidden to use force when being deprived of liberty or property unless there is a sufficient reason to do so.
To summarize, it is possible to say the following. The US law permits the use of force in self-defense, protection or other protection of their property civilians. The police have the right to use physical, rough or deadly force in carrying out their duties. However, in both cases of unacceptable or unreasonable use of excessive force, there are a number of legal nuances. Teachers also may use reasonable force in relation to students, but only in order to prevent hazards that may threaten other children.