Introduction

Defending Third Persons

Introduction

The law ordinarily asks nothing of a bystander. Absent a statute, a special relationship, or a duty the bystander has assumed, a person who watches a stranger in danger has no affirmative obligation to help, and criminal law likewise does not punish a bare failure to act.¹ This chapter therefore concerns the volunteer who does choose to act, and who acts by using force on another human being. Force against a person is otherwise a battery or worse, so the volunteer needs a recognized privilege to escape liability, and defense of others is one of the principal ones.² The Model Penal Code supplies it in § 3.05, which governs force used to protect a third person.³

The text of § 3.05(1) begins: "Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward the person of another is justifiable to protect a third person when:" and three conditions follow.⁴ Those conditions are joined by "and," which makes them cumulative: the actor must satisfy every one, and failing any of them leaves the force unjustified. Each is framed around what the actor believes about the scene, which puts the rescuer's view at the moment of decision at the center of the analysis. The provision also rests on the self-defense section, because the first condition asks whether the actor would be justified under § 3.04 in using the force to protect himself against the injury he believes is threatened to the other person.⁵ The opening clause points outward as well, since subsection (2) of § 3.05 and the separate provisions of § 3.09 both qualify what subsection (1) grants, and later parts of this chapter take them up in turn.

The Code's emphasis on belief answers a problem that the street-corner scene poses directly: if the rescuer misreads the fight, is the force still justified? Courts confronting that question before the Code gave two different answers. One line of cases allows the rescuer to act on a reasonable perception of the scene, much as a person defending himself may act on a reasonable perception of attack, while the other, sometimes called the shoe-stepping approach, ties the rescuer to the position the protected person actually occupied.⁶ Which approach governs decides whether a well-meaning but mistaken intervenor pays for the error. The common-law treatment of the mistaken rescuer, and the reasons the Code departed from it, come first.