Is it legal to defend a property of theft?

[777funk]

In most states it's legal to defend with up to lethal force against an intruder. It seems to be gray area on property vandalism and theft. In St. Louis last year a man shot and killed a teen who had broken into his car at night. He was cleared of the offense due to the circumstance. If a thief is stealing and/or intentionally destroying property on someone's farm and not breaking and entering a vehicle or structure, how does defending property play out? This seems to be a less defined gray area.

Is there any good reading on this topic?

 

[JTHunter]

Unfortunately, this tends to vary by states, as you might expect.
Some states have "stand your ground" provisions, some don't. Some states are so strict (CA & NY come to mind) this question is moot as only the crooks have guns.
A good rule of thumb is that you can only shoot if YOU (or maybe another person) are in IMMEDIATE danger.

 

[Frank Ettin]

Unfortunately, this tends to vary by states, as you might expect.
Some states have "stand your ground" provisions, some don't. Some states are so strict (CA & NY come to mind) this question is moot as only the crooks have guns.
A good rule of thumb is that you can only shoot if YOU (or maybe another person) are in IMMEDIATE danger.

Some misinformation.

First, "stand your ground" laws have nothing to do with the use of lethal force to defend property. They merely do away with any requirement that one retreat if he can do so safely before being justified in using force in self defense.

Second, use of lethal force in self defense can be justified in California and New York. California has had no duty to retreat and a form of Castle Doctrine law for many years. New York has some favorable law regarding self defense jury instructions.

....If a thief is stealing and/or intentionally destroying property on someone's farm and not breaking and entering a vehicle or structure, how does defending property play out? This seems to be a less defined gray area.....

It's really not much of a gray area at all. In general one may not use lethal force to defend property. If in a case reported in the press it appears that someone has used lethal force to defend property and has gotten off, the press report generally lacks legally significant details. In fact news reports are a lousy way to try to understand the law.

It's a basic principle in our society is that it is wrong, and criminal, to intentionally threaten, hurt or kill another human. That's been the default rule for hundreds of years and is the default rule today. If you intentionally threaten, hurt of kill another human you have prima facie (on the face of things) committed a crime.

Our laws do recognize, however, that there are extraordinary circumstances in which a person's intentional act of violence against another person may be excused. Those circumstances generally involve situations in which a reasonable and prudent person would conclude that violence against another is necessary to prevent the person against whom the violence is used from causing imminent death or grave bodily injury to an innocent.

Remember also that you won't have the final say about whether your act of violence was excusable or justified self defense. That decision will be made by others after the fact -- the prosecutor and/or a grand jury and/or, if you're unlucky, the jury at your trial.

The question then should never be, "Can I shoot?" The question should be, "Must I shoot in order to save an innocent life?"

Let's take a general, high level overview of use-of-force law in the United States.

But first some caveats: (1) I'm a lawyer, but I'm not your lawyer; (2) This is not legal advice, but rather it's general information on a legal topic; and (3) this is intended as a general overview without reference to the laws of any particular State, and as such it doesn't consider specific state laws that might allow justification of a use of force in some circumstance not mentioned here.

1. Our society takes a dim view of threatening or using force against and/or intentionally hurting or killing another human. In every State the threat or use of force and/or intentionally hurting or killing another human is prima facie (on its face) a crime of one sort or another.
   
   
   • However, for hundreds of years our law has recognized that there are some circumstances in which such an intentional act of violence against another human might be legally justified.
     
     
   • Exactly what would be necessary to establish that violence against someone else was justified will depend on (1) the applicable law where the event takes place; and (2) exactly what happened and how it happened, which will have to be judged on the basis of evidence gathered after the fact.
     
     
   • Someone who initiated a conflict will almost never be able to legally justify an act of violence against another.
   
   
2. The amount of force an actor may justifiably use in self defense will depend on the level of the threat.
   
   
   • Under the laws of most States, lethal force may be justified when a reasonable person in like circumstance would conclude that a use of lethal force is necessary to prevent the otherwise unavoidable, imminent death or grave bodily injury to an innocent. And to establish that, the actor claiming justified use of lethal force would need to show that the person against whom the lethal force was used reasonably had --
     
     
     • Ability, i. e., the power to deliver force sufficient to cause death or grave bodily harm;
       
       
     • Opportunity, i. e., the assailant was capable of immediately deploying such force; and
       
       
     • put an innocent in Jeopardy, i. e., the assailant was acting in such a manner that a reasonable and prudent person would conclude that he had the intent to kill or cripple.
     
     
   • "Ability" doesn't necessarily require a weapon. Disparity of force, e. g., a large, young, strong person attacking a small, old, frail person, or force of numbers, could show "Ability."
     
     
   • "Opportunity" could be established by showing proximity, lack of barriers or the like.
     
     
   • "Jeopardy" (intent) could be inferred from overt acts (e. g., violent approach) and/or statements of intent.
     
     
   • Unless the standard justifying the use of lethal force is met, use of some lesser level of violence might be legally justified to prevent a harmful or offensive, unconsented to contact by another person.
     
     
   • A threat of force or the use of force may be legally excused or justified only for the purposes of stopping the threat. Once the threat has ended, the continued threat or use of force can no longer be excused or justified and may result in criminal (and civil) liability.
   
   
3. If you have thus used violence against another person, your actions will be investigated as a crime, because on the surface that's what it is.
   
   
   • Sometimes there will be sufficient evidence concerning what happened and how it happened readily apparent to the police for the police and/or prosecutor to quickly conclude that your actions were justified. If that's the case, you will be quickly exonerated of criminal responsibility, although in many States you might have to still deal with a civil suit.
     
     
   • If the evidence is not clear, you may well be arrested and perhaps even charged with a criminal offense. If that happens you will need to affirmatively assert that you were defending yourself and put forth evidence that you at least prima facie satisfied the applicable standard justifying your act of violence.
     
     
   • Of course, if your use of force against another human took place in or immediately around your home, your justification for your use of violence could be more readily apparent or easier to establish -- maybe.
     
     
     • Again, it still depends on what happened and how it happened. For example, was the person you shot a stranger, an acquaintance, a friend, a business associate or relative? Did the person you shot forcibly break into your home or was he invited? Was the contact tumultuous from the beginning, or did things begin peaceably and turn violent, how and why?
       
       
     • In the case of a stranger forcibly breaking into your home, your justification for the use of lethal force would probably be obvious. The laws of most States provide some useful protections for someone attacked in his home, which protections make it easier and a more certain matter for your acts to be found justified.
       
       
     • It could however be another matter to establish your justification if you have to use force against someone you invited into your home in a social context which later turns violent.
       
       
     • It could also be another matter if you left the safety of your house to confront someone on your property.
   
   
4. Good, general overviews of the topic can be found at UseofForce.us, in this booklet by Marty Hayes at the Armed Citizens' Legal Defense Network, and in attorney Andrew Branca's blog, The Law of Self Defense.
   
   
5. Sometimes a defensive use of lethal force will have grave consequences for the defender, even when ultimately exonerated. For example --
   
   
   • This couple, arrested in early April and finally exonerated under Missouri's Castle Doctrine in early June. And no doubt after incurring expenses for bail and a lawyer, as well as a couple of month's anxiety, before being cleared.
     
     
   • Larry Hickey, in gun friendly Arizona: He was arrested, spent 71 days in jail, went through two different trials ending in hung juries, was forced to move from his house, etc., before the DA decided it was a good shoot and dismissed the charges.
     
     
   • Mark Abshire in Oklahoma: Despite defending himself against multiple attackers on his own lawn in a fairly gun-friendly state with a "Stand Your Ground" law, he was arrested, went to jail, charged, lost his job and his house, and spent two and a half years in the legal meat-grinder before finally being acquitted.
     
     
   • Harold Fish, also in gun friendly Arizona: He was still convicted and sent to prison. He won his appeal, his conviction was overturned, and a new trial was ordered. The DA chose to dismiss the charges rather than retry Mr. Fish.
     
     
   • Gerald Ung: He was attacked by several men, and the attack was captured on video. He was nonetheless charged and brought to trial. He was ultimately acquitted.
     
     
   • While each was finally exonerated, it came at great emotional and financial cost. And perhaps there but for the grace of God will go one of us.
     
     
   • And note also that two of those cases arose in States with a Castle Doctrine/Stand Your Ground law in effect at the time.

 

[lemaymiami]

Thanks Frank for that very good explanation. You might also want to add a brief explanation of how civil law regards the wounding or killing of another - no matter how justified and cleared it might have been under existing criminal law... The consequences of defending yourself (or another) after the fact need to be considered and understood by any armed citizen. Civil suits after a shooting can be a nightmare.

 

[Sam1911]

Also, perhaps worth some discussion is the matter of there being a distinction between "force" and "lethal force," and that various states have laws which say one may use some level of "force" to stop a theft. That can be confusing and can get people into trouble. Putting a bullet into someone is not reasonable force in stopping a threat.

This difference can lead people into very tactically unsound positions (e.g. running out to lay hands on someone stealing something and getting beaten or killed for their efforts), and very legally unsound ones (e.g. running out to lay hands on someone stealing something and quickly escalating to a homicide).

 

[Carl N. Brown]

Well, where I come from the law as seen at the police report, grand jury and trial court level seems to be pretty clear from multiple newspaper reports, a couple of family cases, and the 4 hours on self defense law in handgun permit class.

Use lethal force in gravest extreme only.

Lethal force is justified if the hypothetical "reasonable person" would agree that you were in imminent threat of death or greivous bodily harm from a person whom the reasonable person would agree that you believed had the ability and opportunity then and there to put your life or limb in jeopardy.

Stand Your Ground means if you are attacked where you have a right to be, you are not required to prove that safe retreat was not possible. Castle Doctrine means you are probably correct to assume that a stranger in your home is a danger to life or limb.

Using lethal force to defend property from theft, alone, without a reasonable showing that the thief was a threat to your life or limb, is not a good idea at all.

Locally we have had burglars detained at gun point by householder for arrest by responding officers, no consequences to the householder. One case involving shot fired with injury to burglar went to the grand jury (the grand jury no-billed the case). I have been told to expect a burglar-killed-case to go to a trial jury.

The reasonable persons judging you will be responding police officer, coroner or medical examiner, prosecutor or grand jury, trial judge or trial jury. Very rarely an appellate court. If at any level a reasonable person thinks you acted out of wrath rather than fear, or the fear was unreasonable and they would not have used lethal force standing in your shoes, you get bumped down to a deeper level of stuff that's hard to get out of.

 

[MedWheeler]

There are few, if any, jurisdictions within the US that prohibit someone from confronting a thief or burglar who is in the process of stealing (or attempting to steal) property from that person, and even going so far as to try to stop the crime from being completed using a level of force the law would excuse as "reasonable." This would typically not include force that is potentially "deadly."

However, should the burglar/thief then threaten the person confronting him (or her) with force sufficient to put the victim in reasonable fear for their own safety (death or serious bodily injury), the crime becomes elevated to robbery and the law may recognize that the level of force necessary for the victim to prevail and survive may also become elevated.

As was already mentioned, it is always unlawful to shoot, or threaten to shoot, another person. For such a defender to prevail, the law must favor the idea that the use of deadly force, though illegal, was necessary, and that to have followed the law against it would have been unreasonable.

The press likes to say things like "The pizza driver killed the teen over a pizza and twenty bucks." when the truth would have been more like "The pizza driver shot the robber because he feared he might have himself been killed over a pizza and twenty bucks." The first sounds like a property crime, while the second makes it indeed a dangerous crime against a person.

 

[GAF]

Here

 

[Kleanbore]

In St. Louis last year a man shot and killed a teen who had broken into his car at night.

Under Missouri law, the fact that a person had broken into his car would not lawfully justified the use of deadly force unless defender had been in the vehicle at the time.

In the case mentioned, the decision to not charge the defender was based on other aspects of the encounter that led the authorities to conclude that (1) the defender had had reason to believe, on the basis of what he knew at the time, the use of deadly force had been immediately necessary to defend against death or serious bodily harm and (2) the defense had not instigated the actual encounter.

The news reports were not sufficiently detailed to allow anyone to understand why the authorities reached those conclusions.

 

[Frank Ettin]

....You might also want to add a brief explanation of how civil law regards the wounding or killing of another - no matter how justified and cleared it might have been under existing criminal law... The consequences of defending yourself (or another) after the fact need to be considered and understood by any armed citizen. Civil suits after a shooting can be a nightmare.

Yes, any use of force against another human could also be a basis for a civil suit for monetary damages. Although justification is a defense to a civil suit as well as a criminal charge, the standard of proof in a civil suit is lower. A civil plaintiff need only establish the defendant's liability by a preponderance of the evidence.

Getting entangled in the legal system, criminal or civil, can be a highly stressful and expensive situation. Lawyers charge several hundred dollars an hour for their work. Expert witnesses, private investigators, and other persons who will help a lawyer prepare your case for trial also charge hefty fees. A jury trial will cost you anywhere from $50,000.00 to $150,000.00, or even more, in legal fees and court costs alone depending on the complexity of the case.

 

[AlexanderA]

There are few, if any, jurisdictions within the US that prohibit someone from confronting a thief or burglar who is in the process of stealing (or attempting to steal) property from that person, and even going so far as to try to stop the crime from being completed using a level of force the law would excuse as "reasonable." This would typically not include force that is potentially "deadly."

However, should the burglar/thief then threaten the person confronting him (or her) with force sufficient to put the victim in reasonable fear for their own safety (death or serious bodily injury), the crime becomes elevated to robbery and the law may recognize that the level of force necessary for the victim to prevail and survive may also become elevated.

OK, let's say that you attempt to detain a burglar at gunpoint, while at the same time calling the police. If the burglar attacks you, it seems you might be justified in shooting him in self-defense. But what if he calmly turns his back on you and walks away. That's where you would not be justified in shooting him to prevent his escape. (Even if he walks away with the loot.) However, if you physically blocked his escape, matters might escalate so that, again, you would have a self-defense situation. Things get murky at this point.

 

[Sam1911]

Murky indeed! And in several ways.

1) Yeah, legally murky in that what exactly (can be proved or suggested by evidence to have) happened will be dissected and picked over and re-framed and re-hashed by prosecutors, defense attorneys, and the jury. You may have acted perfectly rightly under the law. You may, unfortunately, end up NOT acting perfectly within the law. Either way, your legal outcome (criminal and possibly also civil) will depend on neither of those things exactly, but rather what is suggested and believed by the jurors -- which is never going to be precisely the same thing. All tricky ground.

2) Legally murky also in the physical danger involved. (Something we, as true weapons masters, tend to ignore.) From the moment you're within the sight of this criminal you've just confronted, you are not in control of events. And you do not know what he's going to do. Or what he would be willing to do. Or how he would react to anything you might do. And things will very likely happen extremely fast.

When we describe how we might confront him and he might start to walk away, but then he might turn and come back, and then we might .... it all sounds like it would take place over a leisurely half hour of consideration and decision.

Instead it may unfold like, "We might confront him and then he mi...bang, I'm dead."

You can be very RIGHT and very dead at the same time.

 

[Berger.Fan222]

You win every gunfight you avoid.

Just because there may not be a "duty to retreat" does not mean it's not the best option legally and tactically once all the risks and costs of engaging are fully understood.

For me, whatever property they are stealing is unlikely to be worth the potential legal entanglements (with possible extraordinary exceptions like stealing something needed to sustain life - and by that I mean literal life, not lifestyle).

 

[MedWheeler]

AlexanderA responded to my post that read, in part, as follows:

There are few, if any, jurisdictions within the US that prohibit someone from confronting a thief or burglar who is in the process of stealing (or attempting to steal) property from that person, and even going so far as to try to stop the crime from being completed using a level of force the law would excuse as "reasonable." This would typically not include force that is potentially "deadly."

However, should the burglar/thief then threaten the person confronting him (or her) with force sufficient to put the victim in reasonable fear for their own safety (death or serious bodily injury), the crime becomes elevated to robbery and the law may recognize that the level of force necessary for the victim to prevail and survive may also become elevated.

..by asking:

But what if he calmly turns his back on you and walks away.

By itself, that would hardly be threatening the person confronting him. As you mentioned, though, the scenario might include the suspect attempting to continue with the theft. In most jurisdictions, the law would still "forgive" a person using a "reasonable amount" of force to stop this, which, again, does not typically include deadly force unless and until the confrontation "re-escalates" to a level in which it becomes necessary.

The prudence of this continued pursuit is for another discussion, as this one is about legality, so I won't comment on it here.

 

[JeffG]

There is no gray area. Unless your personal safety is (imminently, and articulately) threatened in the commission of a theft, which now becomes a robbery, deadly force is not appropriate to stop a property crime.

 

[Schwing]

I would argue that, even if you were legally somehow authorized to use deadly force in to prevent some kind of theft or vandalism, would you want to? Morally speaking, I don't believe I would be justified in taking a life unless I felt that my own life or the life of someone else was at stake.

Now, if you are talking about the guy breaking in at midnight or the guy trying to carjack me with my kids in the back seat, that is one thing. I'm very unlikely to ask questions. Coming across some punk stealing change from my glove box however and I just don't think it is worth the confrontation. I personally don't believe that any stuff is worth any life... even if that life is a POS.

 

[Kleanbore]

OK, let's say that you attempt to detain a burglar at gunpoint,...

What makes you think that it would be lawful to threaten someone with deadly force to prevent his departure?

 

[JeffG]

What makes you think that it would be lawful to threaten someone with deadly force to prevent his departure?

My firearm would be used to assure my safety. The Castle Doctrine in Wisconsin allows deadly force for home invasion, armed intruder or not, he could already be bleeding. The crime at this point is forcibly entering, not theft. If he fled, I would not be inclined to shoot, nor follow...

 

[HankB]

Texas' penal code sections 9.41 through 9.44 explicitly defines the circumstances in which deadly force may be used to protect property - the law in other states may differ considerably. A few noteworthy tidbits are that Texas' famous "theft during the night" provision isn't quite the carte blanche provision to shoot a bad guy that some people think it is, and setting traps that may kill or seriously injure a bad guy is illegal.

Sec. 9.41. PROTECTION OF ONE'S OWN PROPERTY.
(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.
(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:
(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or
(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

Sec. 9.43. PROTECTION OF THIRD PERSON'S PROPERTY. A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:
(1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or
(2) the actor reasonably believes that:
(A) the third person has requested his protection of the land or property;
(B) he has a legal duty to protect the third person's land or property; or
(C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.

Sec. 9.44. USE OF DEVICE TO PROTECT PROPERTY. The justification afforded by Sections 9.41 and 9.43 applies to the use of a device to protect land or tangible, movable property if:
(1) the device is not designed to cause, or known by the actor to create a substantial risk of causing, death or serious bodily injury; and
(2) use of the device is reasonable under all the circumstances as the actor reasonably believes them to be when he installs the device.

There's also a discussion of Texas' castle doctrine available, which touches on the use of force to protect property: https://blog.uslawshield.com/castle-doctrine/

 

[GAF]

If

 

[Danoobie]

You win every gunfight you avoid.

JMHO- I would never risk being shot over somebody else's stuff. They may view the law differently than I do.
OTOH, I would not shoot somebody just vandalizing or stealing stuff. AFAIK, even if it is sometimes "justified"
under the law, in some areas, as others have pointed out, there are legal entanglements.

After all, folks gotta be able to steal your stuff. How else they gonna be able to afford money for school?

 

[AlexanderA]

If I encounter a burglar in my house with an arm load of my stuff and he/she or they turn to leave I will just let them go.

Ironically the most valuable things in my house are my guns themselves. Besides the monetary aspect, I have to worry about them falling into the wrong hands. Therefore, I would find it very hard to just passively "let them go." Some action would be taken, hopefully short of shooting someone. (This of course is assuming that the burglars have defeated all my other security precautions, and that I am actually home to confront them.)

 

[fallout mike]

Stealing something outside i would have a conversation with him from cover. Home invasion during the night, I'm not questioning whether they are there to steal or kill. I will be violently protecting my family. I've been around too many of these where people end up dead.Once where the man was tied up and forced to watch his wife and 10 year old daughter gang raped. 10 miles from my house.

 

[fallout mike]

There was a gang initiation in my home town of 18,000 where the members had to rape a woman of a certain race. Around 20 home invasions occurred in a few week span that resulted in a rape. My family's security business could not keep up with the installations for a while. My point is, if they are in your house you would be very foolish to just assume they want to steal your TV. It takes a different level of criminal to come into your house when you are home. They already know a encounter with the resident is very possible. They are prepared for this. You are not, unless you sit around the house on guard duty all night.

 

[Sam1911]

Of course, but we are straying from the specific question asked, which was in regards to theft. Theft is a defined legal term. Home invasion, rape, and murder are not theft.