Protection of Property

Terms:

Defense of Property:
The right of a person to protect one's property with reasonable force against another person who is threatening to infringe on one's possessory interest in such property.

Where a defendant is on trial for criminal assault or battery, he may argue, in certain instances, that he reasonably believed that his actions were necessary to defend his property from the victim. However, as we will see, the use of force to protect property is much more limited than the right to use force to protect oneself or other people.

It is important to remember that deadly force can never be used simply to defend property against someone else’s interference with that property, even if that interference is unlawful and even if there is no other way to prevent that interference. See State v. Metcalfe, 212 N.W. 382 (Iowa 1927). Please note, however, that deadly force may be used where the facts also support another privileged use of force. For example:

1) Fred illegally enters Barney’s property with the intent of swimming in the pond that is located on Barney’s property. Barney asks Fred to leave the property and Fred refuses. Barney then physically pushes Fred, trying to get him off the property. Fred responds by pulling out a gun. Barney happens to be holding a baseball bat and, when he sees Fred pull out the gun, Barney hits Fred over the head with the baseball bat and kills him. In this situation, Barney’s use of deadly force is justifiable. Barney’s initial use of force was justifiable because he was using non deadly force to protect his property, which he is allowed to do. Fred responded to this non-deadly force by pulling a gun, thereby threatening Barney with death or serious bodily injury. Since Fred’s threat of death or serious bodily injury was unlawful, the facts therefore supported Barney’s privileged use of deadly force. Therefore, Barney’s use of deadly force in this case was justifiable.

2) Fred enters Barney’s property with the intent of burning Barney’s barn to the ground. What Fred does not know is that Barney’s children are sleeping in the loft. As Fred is beginning to set the barn on fire, Barney attacks Fred with a baseball bat and kills him. In this situation, Barney’s use of deadly force is also justifiable. Typically, Barney would not be allowed to use deadly force simply to protect his barn. However, Fred’s action of destroying Barney’s property also posed the risk of death or serious bodily injury to Barney’s children. Since Barney is allowed to use deadly force to protect other people from death or serious bodily injury, the facts here support another privileged use of deadly force. Therefore, Barney was privileged in using deadly force to prevent Fred from burning down the barn.

Some jurisdictions also allow the right to use deadly force in defense of one’s actual dwelling even if there is no risk of death or injury to any person involved.

Non-deadly force can be used to protect property that is in the defendant’s lawful possession if the force that the defendant uses reasonably appears to be necessary to prevent or terminate an unlawful intrusion onto, or interference with, that property. See People v. Payne, 8 Cal. 341 (1857). For example:

Fred buys a car from Barney. Since Fred owns the car, he is allowed to use non-deadly force to protect his car from intrusion by another person. If Fred instead rents the car from Barney, he is still allowed to use non-deadly force to protect the car from an unlawful intrusion because, even though Fred does not own the car in this case, he is in lawful possession of it. This is true even if it is Barney who is trying to take the car. Even though Barney is the owner of the car, Fred has the right to possess it at this point in time. Therefore, he may use force to prevent an intrusion on his right to possess the car.

Please note that since this rule requires that the defendant either own the property or be in lawful possession of it in order to be able to use force to protect it, a defendant is not allowed to use force to protect the property that is in lawful possession of someone else under the common law rule, even if the defendant owns the property. However, the Model Penal Code does allow the defendant to use non-deadly force to protect property even if it is in someone else’s lawful possession.

Please note also that force to protect property must be used either at the moment of the wrongful intrusion or near the time of the wrongful intrusion. Thus, one who has been wrongfully deprived of his property cannot use force to regain it or, if it is real property, to re-enter it, if any significant period of time has gone by between the deprivation of the property right and the use of force. However, if the owner uses non-deadly force to regain property immediately after it’s taken or while in "hot pursuit" of the person who took the property, such non-deadly force is justified. See State v. Dooley, 26 S.W. 558 (Mo. 1894).

One cannot have a comprehensive discussion about the use of force to protect property without discussing the use of mechanical devices in the protection of property. The traditional rule involving mechanical devices is that an injury or death caused by a mechanical device is justifiable only if the person who rigged the device would have been justified in inflicting the injury or death had he actually been present when the victim was injured or killed. In other words, the use of a mechanical device is tied directly to the defendant’s right to use force and the level of force he would be allowed to use. The Model Penal Code is even more stringent. According to the Model Penal Code, any mechanical device that could potentially cause a serious injury or death is never allowed to be used under any circumstances.

At common law, deadly force could be used in the defense of one’s dwelling if it reasonably appears to be necessary to prevent a forcible intrusion into the dwelling and if a warning had first been given to the intruder not to enter. See State v. Patterson, 45 Vt. 308 (1873). Because we are dealing with a dwelling there was no duty to retreat before the use of deadly force can be applied. However, modern statutes have limited the right to use deadly force in defense of a dwelling so that, today, the use of deadly force is only allowed if the defendant reasonably believes that the intruder intends to commit a felony or to hurt somebody in the dwelling. See Morrison v. State, 371 S.W.2d 441 (Tenn. 1963).

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