The following entry contains the Black Letter of §§ 26 and 44 of Tentative Draft No. 5, Chapter 3. Privileges, from Restatement of the Law Third, Torts: Intentional Torts to Persons. The full draft contains Comments and Reporters’ Notes.
This project was on the 2020 Annual Meeting agenda before the Meeting was cancelled due to COVID-19. Accordingly, this text has not been considered by the membership of The American Law Institute and therefore does not represent the position of the Institute on any of the issues with which it deals. This supplement may be revised or supplemented prior to consideration by the membership in May 2021. If you are interested in obtaining a copy of this or any other Section of this project, please contact us.
On June 3, 2020, the Australian High Court cited §§ 26 and 44 in a decision involving the use of CS gas, a form of tear gas, during an incident at a juvenile detention center. The question was whether the tort of battery was committed when prison officers used tear gas to control a disruptive detainee in a youth detention center; the allegations of battery were made, not by the disruptive detainee themselves, but by four other detainees who were located nearby and were exposed to the gas. Read the full opinion: Binsaris v. Northern Territory; Webster v. Northern Territory; O’Shea v. Northern Territory; Austral v. Northern Territory  HCA 22 (3 June 2020).
TOPIC 2. SELF-DEFENSE AND DEFENSE OF THIRD PERSONS
(a) “Bystander” means a person who is not employing or threatening force against the actor or against a third person.
(b) Liability to bystander for intentional tort. If an actor, for the purpose of self-defense (or defense of a third person), intentionally employs force against a bystander rather than against the person posing a threat of force to the actor (or to a third person), the actor has a more limited privilege than §§ 21-24 provide. The privilege of the actor is limited as follows:
(1) The actor may not employ deadly force against the bystander;
(2) The actor may employ force against the bystander if but only if the actor reasonably believes that:
(A) the force that the other person is employing 1 or threatening against the actor is substantially greater than either the force that the actor is employing against the bystander or the force from the other person to which the actor is exposing the bystander, and
(B) the actor’s use of the force against the bystander is immediately necessary to avoid the other person’s threat or use of force.
(c) Liability to bystander for negligence. If an actor engages in otherwise tortious intentional conduct that is a privileged exercise of self-defense or defense of a third person under §§ 21-24, and the actor thereby unintentionally causes harm to a bystander, the actor is not subject to intentional tort liability to the bystander. In such a case, the actor’s tort liability is determined solely according to applicable principles of negligence.
TOPIC 4. ARREST AND PREVENTION OR TERMINATION OF CRIME
§ 44. Liability to Bystander for Intentional Tort or for Negligence
(a) If, in the course of a privileged or unprivileged use of force under §§ 35-41, an actor intentionally employs force against a bystander, the actor is subject to intentional tort liability to the bystander and is privileged only if protected by the privilege recognized in § 26(b).
(b) If an actor engages in otherwise tortious intentional conduct that is a privileged use of force under §§ 35-41, and the actor thereby unintentionally causes harm to a bystander, the actor is not subject to intentional tort liability to the bystander. In such a case, the actor’s tort liability is determined solely according to applicable principles of negligence.