“Hell yes! I worked hard for my property. You try to take it away from me, you deserve to die, and I’m just the guy who’ll do it!”
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The decision to use deadly force to protect personal property involves the question of whether deadly force “may” be used, but equally important, whether it “should” be used. One is clearly a legal question. The other is a moral question and, perhaps more importantly, a practical question, one that you should not be in a hurry to answer. First, it is very important to understand that the laws providing the legal right to use deadly force vary greatly from state to state.
DEADLY FORCE LAWS BY STATE
In Texas, deadly force may be used to protect property from criminal activity or to prevent a fleeing felon from making off with property, but only if the property owner “reasonably believes” the property cannot be protected by any other means, or attempted recovery would subject the owner to the risk of death or serious injury. So you can legally use deadly force to protect property, right? Maybe, maybe not, please read on.
In Georgia, deadly force cannot be used to protect property unless the owner “reasonably believes” it is necessary to prevent a “forcible felony,” a term with a very specific definition including, but not limited to, physical force or violence against a person, including murder, burglary, robbery, kidnapping, or rape. Florida, Illinois, Ohio, and Pennsylvania use similar language, as do other states. But the crimes included in the definition of a “forcible felony” can vary significantly from state to state. Florida includes car jackings, and Illinois includes residential burglary. In Pennsylvania, the term only refers to crimes capable of causing death, serious bodily injury, kidnapping, or forceful rape. In Iowa, it includes human trafficking. The statutory law dealing with the use of deadly force in the protection of property varies significantly from state to state.
In Minnesota, deadly force is authorized in the face of an immediate threat of death or crippling injury, or to prevent the commission of a felony “in the actor’s place of abode.” Seems straightforward, but it is not. The Minnesota appellate courts have interpreted this language to mean that deadly force in “defense of a dwelling” must meet three criteria: (1) the belief that deadly force was necessary to prevent the commission of a felony in the dwelling; (2) the person’s judgment as to the gravity of the situation was “reasonable” under the circumstances; and (3) a “reasonable person” would have done the same thing under the same circumstances.
“REASONABLE” BELIEF
Note the repeated use of the terms “reasonable” or “reasonably.” Who decides whether you “reasonably believed” deadly force was necessary, or that deadly force in a specific instance was reasonable? Juries decide those questions in the course of a trial in which a prosecutor may have charged you with crimes ranging from simple assault to first-degree murder. Do you get to tell them your belief was reasonable? No. You can tell them “what” you believed, but whether your belief was a “reasonable belief” is left to the jury to decide. What about your self-defense trainer? Can he or she tell them your belief was reasonable? No, courts have uniformly ruled that such statements “invade the province of the jury.” Are you beginning to see the problem?
The lesson to be learned here is this: When you are dealing with legal issues, and you see the word “reasonable,” think jury, lawyers, attorney fees, and time away from work with the possibility of conviction and loss of freedom for a significant period of time.
Some states by statute make it clear that deadly force cannot be used in defense of property. In Tennessee, the law states that “Unless a person is justified in using deadly force as otherwise provided by law, a person is not justified in using deadly force to prevent or terminate the other’s trespass on real estate or unlawful interference with personal property.” Arizona, Iowa, and Utah law on the subject is similar. In Massachusetts, the deadly force statute specifically excludes defense of property and requires that a person defending their home have a reasonable belief that the intruder is about to inflict great bodily injury or death upon someone and that deadly force was the only reasonable means of defense. This is true in a number of other states as well.
Most states have a definition in their laws for what constitutes a justifiable use of deadly force. The usual standard is that the person using lethal force has to have a “reasonable” expectation of either death or grave injury to themselves or someone else if they don’t act. That doesn’t include property; it must be a threat to life or limb, or else it isn’t legal. Washington state law authorizes deadly force “when there is ‘reasonable ground’ to believe another intends to commit an immediate felony or to do some great personal injury to the slayer or to some other person.” There’s that term “reasonable” again.
CASTLE DOCTRINE
Well, what about “castle doctrine,” you might ask. The “castle doctrine” relates to only one issue. Do you have a duty to retreat before using deadly force in your own home? That’s it, nothing more. It does not authorize the use of deadly force, and it can’t, because that is done by statute. The castle doctrine is a non-statutory legal principle that courts employ to answer one question: Did the actor have a duty to retreat or not? If the state follows the castle doctrine, and most do, then within your own home (or “castle”), you have no duty to retreat. But your use of deadly force must still meet the statutory test.
At the same time that you are dealing with the statutory law of a state, think about this. Not only do deadly force laws vary from state to state, but so also do how law-enforcement officers, prosecuting attorneys, and the courts interpret those statutes, even within a given state.
CASES IN POINT
In 2007, a Pasadena, Texas man was subjected to a grand jury review of his fatal shooting of two attempted burglars at his neighbor’s home. The shooting occurred while a law-enforcement dispatcher was on the phone telling him not to interfere with the burglars, as officers had been dispatched. He shot them both anyway because they were “getting away.” The prosecutor convened a grand jury, which refused to indict the man for murder, and no other charges were filed.
In Spokane, Washington in 2013, a man who shot and killed a car thief driving away in the stolen vehicle was charged with first-degree manslaughter. A year later, the shooter was acquitted of the criminal charges, and a Washington jury found that his actions were also justifiable, requiring the state to compensate him for a reported $300,000 in legal bills.
In contrast, in July 2016, an armed customer opened fire on a Spokane Valley bank robber in the middle of a robbery at a credit union. The bank robber was not threatening the customer directly, but he was committing an armed crime. The robber was shot and wounded and later apprehended. The prosecutor, after reviewing the situation, declined to charge the citizen who wounded the robber.
In 2015, an Ohio man shot at two fleeing burglars in his yard, killing one. He was charged with manslaughter, convicted and, in 2017, sentenced to serve six years in prison.
In 2017, a Minnesota man who surprised three men attempting to burglarize his isolated country home was charged with second-degree manslaughter after fatally shooting the driver of a car that attempted to run him over in his own driveway. The manslaughter charge was eventually dismissed, and the homeowner entered a plea to a felony charge of reckless discharge of a firearm.
USE DEADLY FORCE ONLY WHEN YOU MUST
Literally dozens of such stories are popping up all over the country. How do we reconcile the different outcomes? We cannot, because they are the subject of the exercise of human discretion and judgment. That makes the outcome unpredictable because each incident is driven by facts unique to that case. I have included a small sampling to illustrate the point.
Deadly force is a justification for what would otherwise be a crime: the taking of a human life or causing some grievous bodily injury. As such, it should be reserved for “must” situations, where life or serious injury are being threatened, and not employed in “can” situations. In self-defense incidents, experienced trainers as well as experienced self-defense attorneys will tell you, there will be two fights. The first is the fight to preserve your life or the life of someone close to you. The second, longer, more protracted, and much more expensive one may very well be the fight for your future. Deciding to wage either of those fights over easily replaceable property is not a wise investment of time, energy, or money.
Back in the good old days, you could shoot somebody for stealing your horse. They hung horse and cattle thieves on a regular basis. We need to go back to that rule with all property crimes.
Don't get your legal advice here. Re: Castle Doctrine. It apparently has different legal implications in different states. In some, it simply means that someone feloniously entering your castle is presumed by law to present a threat sufficient to justify deadly force. In other words, someone operating under that law would not have to prove an actual or reasonably perceived serious threat. It is presumed by law. On the other hand, a "duty to retreat" issue is commonly covered (or not) by a "stand your ground" law, which may, or may not be related to a castle doctrine law in a particular jurisdiction. Stand your ground does not confer any presumption of justification for force. Go talk to an actual lawyer...
Great Discussion! Ok, I am forced to use a walker and it's looking less and less likely I will graduate to a cane, so I feel like I have a target on my back when in the public. I always carry concealed even though it would be hilarious to watch me try to keep my balance w/one hand while I try to get my pistol out. IOW, I would be a easy target & depend on my handgun to give me a little edge. Will the laws/statutes allow me to protect myself and family with a little discretion toward my handicap or would I be treated as able bodied?
regarding theft of property, if I find someone stealing one or more of my guns. That would seem to justify deadly force, right? After all, it seems stealing guns would be for only criminal purposes and they would likely be used to hurt someone? But I may be applying logic when the law seldom is so logical.
Dear Mr. Pincus, another pathetic it is "just stuff" argument if I have heard that phase once of heard a least a couple of hundred times. Protecting your stuff with locks how utterly ludicrous.
In my opinion, one cannot "defend" personal property. It's impossible as personal property is inanimate and not alive. I believe in castle doctrine. One shouldn't have to retreat where one has individual legal rights to be. In fear for one's life or grave bodily harm of themselves or loved ones no problem on my end defending. Train, train, train to be a good shot. Shoot to kill, never to injure. Just remember that way too often the criminals file charges on their victims (if an when they live). Going to prison, you might as well die at the hands of a criminal intent on killing you. It would be a quicker death. In prison the gangs will beat you to death slowly until you eventually die. In a nutshell, do what your mind tells you is right at the time. Thinking about all of this crap will take too much time when you NEED to make a split second decision. Know your state and local laws. Plenty of law enforcement seems to consider everyone a criminal and will violate your rights without hesitation. That alone puts you at risk even before any incident occurs. Some folks might think about concealed carry insurance or the USCCA and what they offer. The powers that be count on the American public to me misinformed or not know the laws. Nobody sends you updates to your state laws each year do they? Do prosecuting attorneys actually do the right think or might they be concerned with morals and such? Or will they do whatever the sheriff or chief of police wants or tells them to do? What rights does the US constitution grant or give you? Life, liberty, and the pursuit of happiness? There's no REAL guarantees in life or this world. Never have been and never will. Bottom line is, do you want some criminal taking you or your loved one's life? At least go down putting up a good fight! Lots of folks just simply go down as victims. For what? No martyrs in this ordeal.
If someone is in my home, I can guarantee he's there to do bodily harm on me, my family, property or dogs, when found he'll have a weapon on him that I found to be threatening me with great bodily harm, knife, gun, whatever.
Being careful not to discount everyone's opinion (because many are based on real life experience) - I am failing to really understand the debate here. (The paragraphs below do not take into account the use of drugs or alcohol which are known to affect the proper judgement of either party. The same also do not take into account the sometimes present multiple assailants.) We all have the right to protect our property regardless of the state in which reside. That said, use of deadly force is only for protecting life and not property. If it is known or expected that you undoubtedly face bodily harm or death by intervening (Example: the property owner going to the perp) and you are forced to use deadly force then it can be said that, and often is, that you aggravated and provoked the situation. These situations usually involve brandishing of a weapon on approach of the perp. Example: Someone stealing a car in a driveway and and someone exits the home with a gun or a baseball bat visibly in hand that is usually construed as using a gun or other weapon to protect property. (Remember, a good lawyer can make grandma with a rolling pin look like Ma' Barker). Now if a person sees someone trying to steal their car and approaches the perp and there is no brandishing to aggravate and the perp's reaction is to actually attempt (key word) to cause permanent bodily harm that may even lead to death rather than fleeing then it is often considered reasonable to use deadly force. Now if a perp is physically approaching someone to steal their car or attempting to enter one's home AND in the process of the action threatens or attempts to cause permanent bodily harm or death then it is usually reasonable to use deadly force, especially when dark because it cannot be seen if the perp is armed. Elderly people, women, and children have a greater expectation of fear due to less physical strength. (Last statement has been proven, tried, and accepted by most.) Just getting pushed away or to the ground is not in itself a reasonable justification to use deadly force unless the perp continues the attack. The key is unprovoked attack on one's self or another human being which includes someone comitting a crime while pointing a gun at someone (or a knife, or any other weapon that can cause permanent harm or death). Any perp that is moving away from innocent person's direction is considered to not be threat unless that perp is shooting or using deadly force. The general rule that we teach is that if one and all innocent people can walk away without harm then do so but if it is NOT then it is "usually" reasonable to use deadly force. (The word "usually" is used as juries are unpredictable and there is always that small chance of conviction). To qualify what I have stated above: I have been in physical altercations while armed and because there was no fear of the loss of life or permanent injury my gun never came into play. I have also intervened to prevent bodily harm and even given chase to create distance between perp and victim but also stopped when perp was no longer close enough to harm and yet never fired a shot because perp was retreating. I have also been approached with deadly force with no reasonable ability to retreat and had to deal with it accordingly (Stand your ground). This is where the education from trainers and people such as Rob is very important and keeping up with the forever changing laws. It develops the proper mindset. Using deadly force always has implications. Even if not legal implications, mental implications for sure as it will without question change a person forever.
Thanks for the article. I know of Jim via my ACLDN membership. As a new gun owner and recent obtainer of CCL, one thing I realized real fast about it all was that I just took on a hell of a lot of legal jeopardy and added responsibility. As attorney Branca states it (paraphrased) "When you engage in the use of force with another you've increased to greater than zero your risk of death and/or life in prison." Property isn't worth the risk of losing your freedom or life. People really need to get not only arms and defense training they should get legal training as well so they they know the legal boundaries. I'm doing all that as best I can. That's why I joined PDN amongst other sites. As a gun owner, I want all the information I can get from all the most reliable sources. Thanks again.
After retiring as a Green Beret from the Army, I decided to give away free practical selfdefense information away on YouTube to benefit veterans. Here is how to properly defend your home https://youtu.be/bxv_fpVSn90