28-1413. Use of force by person with special responsibility for care, discipline, or safety of others.

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A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

The use of force upon or toward the person of another is justifiable if:

(1)The actor is the parent or guardian or other person similarly responsible for the general care and supervision of a minor or a person acting at the request of such parent, guardian, or other responsible person and:

(a)Such force is used for the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of his or her misconduct; and

(b)Such force used is not designed to cause or known to create a substantial risk of causing death, serious bodily harm, disfigurement, extreme pain or mental distress, or gross degradation;

(2)The actor is the guardian or other person similarly responsible for the general care and supervision of an incompetent person and:

(a)Such force is used for the purpose of safeguarding or promoting the welfare of the incompetent person, including the prevention of his or her misconduct, or, when such incompetent person is in a hospital or other institution for his or her care and custody, for the maintenance of reasonable discipline in such institution; and

(b)Such force used is not designed to cause or known to create a substantial risk of causing death, serious bodily harm, disfigurement, extreme or unnecessary pain, mental distress, or humiliation;

(3)The actor is a doctor or other therapist or a person assisting him or her at his or her direction and:

(a)Such force is used for the purpose of administering a recognized form of treatment which the actor believes to be adapted to promoting the physical or mental health of the patient; and

(b)Such treatment is administered with the consent of the patient or, if the patient is a minor or an incompetent person, with the consent of his or her parent or guardian or other person legally competent to consent in his or her behalf or the treatment is administered in an emergency when the actor 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;

(4)The actor is a warden or other authorized official of a correctional institution and:

(a)He or she believes that the force used is necessary for the purpose of enforcing the lawful rules or procedures of the institution, unless his or her belief in the lawfulness of the rule or procedure sought to be enforced is erroneous and his or her error is the result of ignorance or mistake as to the provisions of sections 28-1406 to 28-1416 , any other provision of the criminal law, or the law governing the administration of the institution;

(b)The nature or degree of force used is not forbidden by section 28-1408 or 28-1409 ; and

(c)If deadly force is used, its use is otherwise justifiable under sections 28-1406 to 28-1416 ;

(5)The actor is a person responsible for the safety of a vessel or an aircraft or a person acting at his or her direction and:

(a)He or she believes that the force used is necessary to prevent interference with the operation of the vessel or aircraft or obstruction of the execution of a lawful order unless such belief in the lawfulness of the order is erroneous and such error is the result of ignorance or mistake as to the law defining such authority; and

(b)If deadly force is used, its use is otherwise justifiable under sections 28-1406 to 28-1416 ; and

(6)The actor is a person who is authorized or required by law to maintain order or decorum in a vehicle, train, or other carrier or in a place where others are assembled, and:

(a)He or she believes that the force used is necessary for such purpose; and

(b)Such force used is not designed to cause or known to create a substantial risk of causing death, bodily harm, or extreme mental distress.

Whether an act that could constitute third degree assault is justifiable under this section is a question of fact. State v. Beins, 235 Neb. 648, 456 N.W.2d 759 (1990).

Whether physical act committed by person responsible for care and supervision of minor is justifiable act or unlawful assault is fact question. State v. Miner, 216 Neb. 309, 343 N.W.2d 899 (1984).

Subdivision

(1)of this section codifies the common-law defense against criminal liability for a parent's use of force in, among other circumstances, punishing his or her child's misbehavior. At common law, a parent, or one standing in the relation of parent, was not liable either civilly or criminally for moderately and reasonably correcting a child, but it was otherwise if the correction was immoderate and unreasonable. State v. Kilgore, 30 Neb. App. 273, 967 N.W.2d 743 (2021).

The question of whether a parent's use of physical force to discipline his or her child was protected under subdivision

(1)of this section presents a question of fact for the fact finder. State v. Kilgore, 30 Neb. App. 273, 967 N.W.2d 743 (2021).

While the violation of department policy may be evidence that the degree or nature of force used was unlawful, this section ultimately requires the court to make a determination that the force used was not forbidden by section 28-1408 or section 28-1409. State v. Jackson, 26 Neb. App. 727, 923 N.W.2d 97 (2019).

This section does not create or confer an affirmative right to use physical or corporal punishment, but, rather, this section only provides a defense against criminal liability. State v. Nguth, 13 Neb. App. 783, 701 N.W.2d 852 (2005).