Are People Allowed to Use Deadly Force to Defend Property?
BY Herschel Smith
3 years, 11 months ago
Reason.
[1.] In all states, you can use deadly force to defend yourself against death, serious bodily injury (which can include broken bones and perhaps even lost teeth), rape, or kidnapping, so long as (a) your fear is reasonable and (b) the danger is imminent (requirements that also apply to the doctrines I discuss below).
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But in nearly all states, you can’t generally use deadly force merely to defend your property. (Texas appears to be an exception, allowing use of deadly force when there’s no other way to protect or recapture property even in situations involving simple theft or criminal mischief, though only at night, Tex. Penal Code § 9.42; see, e.g., McFadden v. State (Tex. Ct. App. 2018).) That’s where we get the conventional formulation that you can’t use deadly force just to defend property.
[2.] This conventional formulation, though, omits an important limitation: In basically all states, you can use nondeadly force to defend your property—and if the thief or vandal responds by threatening you with death or great bodily harm, you can then protect yourself with deadly force. So in practice, you can use deadly force to protect property after all, if you’re willing to use nondeadly force first and expose yourself to increased risk.
[A.] In about half the states you can use deadly force against robbery, which generally includes any theft from the person that uses modest force or a threat: “Even a purse snatching can constitute a robbery if the victim simply resists the effort to wrest the purse away.” Some robbery of course does also create a reasonable fear of death or serious bodily injury, but in these states such a fear is not required.
[B.] In some states, there is a rebuttable presumption that you reasonably fear death or great bodily harm—and may thus use deadly force—if the target is (to quote the Iowa statute),
Unlawfully entering by force or stealth the dwelling, place of business or employment, or occupied vehicle of the person using force, or has unlawfully entered by force or stealth and remains within the dwelling, place of business or employment, or occupied vehicle of the person using force.
I think Missouri is like Texas in this regard even though he didn’t mention it.
In the Colonial era, horse theft brought harsh punishment, including branding, torture, exile and even death. This is so because theft of the means of plowing the ground on the frontier meant relegating your family to death for lack of food.
It’s complicated. Be sure to know the laws of your state. For me, it comes down to this: If the person is entering the premises of your home or business with a weapon or intent to commit theft, you simply cannot trust that he will stop there.
There are thousands of instances where a thief took what he wanted and then killed the people who saw him do it.
There is also his article on The Duty To Retreat In The Founding Era. Read this as well, and as always, none of this constitutes legal advice. You have to pay for that.
On June 7, 2020 at 10:13 pm, Dan said:
The laws regarding deadly force are similar in most states….but there can be important differences that can mean quite literally the difference between freedom and a life behind bars. But more important than the laws where you are is the mentality, politics and agenda of the local prosecutor/DA in your city or county. THAT is the person who ultimately decides whether or not a citizen is persecuted for having the gall to defend themselves or their homes. And to many of these people in power the law is secondary to their agenda. You need to know not just what the law says but what the prosecutor you will face believes.
On June 8, 2020 at 7:56 am, Fred said:
This is what I woke up thinking about, but property rights are only one aspect.
First, I completely agree that the police need to be disarmed and disbanded. That however, requires certain fundamental aspects of duties and rights. So, if the standing army that the founders warned us against is to be abolished these must be the conditions for it to work:
1. The 2A needs to be fully restored. Every Terrible Implement of War Shall Not Be Infringed must be followed.
2. Property rights must be fully restored. Full property rights. No more business licenses, no more taxes on any properties and most importantly, the right to defend property with deadly force.
3. Freedom of association must be fully restored. Completely. No quotas, right to refuse service, right to disassociate personally, organizationally, and extended all the way to the States if they so choose to leave the Union.
I do realize that as many as perhaps several million would die in the first year of trying this, but the rest would learn to be an armed and therefore polite society.
Sadly, Americans just don’t have it in them. What I’ve proposed is not my idea at all. I’m not that smart. but, 240 years ago there were some guys who were that smart. It’s mostly Bible based, what became known as Classical Liberalism. Lockean/Jeffersonian Liberalism. But, and it’s a big but, huge in fact; this form of government is only fit for a Christian people, real Christians willing to the hard work of civilization building, and not the fate based Ism’s America has today. The reason that this government form is only fit for a Religious people is that the commands of God need to be the local civil laws, and expected norm of the wider society.
But, American Christians just don’t have it in them. They love their armies both foreign and demostic and they love their warring. It’s a strange way to be pro life indeed. Their religion is really weird in fact. They are willing to build a house, raise children, seek a career (spit), etc. all while being completely resigned to evil taking over the world. It’s a bazaar admixture and frankly, I think that the large majority of them are simply using one understanding of eschatology, whether sound or not – you decide, as an excuse for not doing the hard work of returning America back to Holy God, in an attempt to forestall the arriving Judgement, and thereby saving western civilization.
(I’m under no; muh constitoooooshun delusions here, ok.)
For the third time, they just don’t have it in them. It’s very sad. If God sent a Holy Anointed Profit as of old to warn and to lead America out of this mess, I believe American Christians would treat him know better than the profits of antiquity were welcomed.
I don’t see a way out but war and ruin.
On June 8, 2020 at 6:38 pm, Chris Mallory said:
In regard to property, some states do allow deadly force to stop an arson of a dwelling or occupied building.
“.but there can be important differences”
Very true. In Kentucky, which has pretty decent gun and self defense laws, defense of self is judged under the “reasonable person” standard. Defense of another is judged under a “facts as they are” standard. The usual example is a guy dressed like an outlaw biker starts assaulting you with no comment. You are able to use lethal force. But if you come around a corner and see the same guy straddling a small female and you shoot him to defend the female, but it turns out he was an undercover cop trying to make an arrest you are in some hot water.