Chapter 10

DEFENSE OF PROPERTY AND HABITATION

§ 10.01 Defense of Property

[A] Common Law – A person in possession of real or personal property is justified in using non-deadly force against a would-be
dispossessor if he reasonably believes that such force is necessary to prevent imminent and unlawful dispossession of the property. Under
no circumstances may a person use deadly force to prevent dispossession.
[1] Possession versus Title to Property – The privilege of defense-of-property entitles a person to use necessary force to retain rightful
possession of, as distinguished from title to, personal or real property.
[2] Threat to Use Deadly Force – Although states universally prohibit use of deadly force to protect property, they are divided as to
whether one may threaten it as a way to prevent dispossession.
[3] Claim of Right – When a person asserts a claim of right to property in the possession of another and seeks to reclaim such property,
the possessor is not justified in using force to thwart the dispossession if he knows, believes, or as a reasonable person should believe, that
the claimant has a legitimate claim of right to possession of the property in question. Since the use of force to protect property is
legitimate only if the act/attempted act of dispossession is unlawful, in such cases of a legitimate claim to property, the act of
dispossession is lawful.
[4] Recapture of Property – A person may not ordinarily use force to recapture property of which he has been unlawfully dispossessed
except if he acts promptly after dispossession. One may follow the dispossessor in hot pursuit in order to recapture his property and if
necessary, use non-deadly force in the process.
[B] Model Penal Code
[1] General Rule Allowing Use of Non-deadly Force – The Model Penal Code essentially conforms to the common law. Section
3.06(1)(a) provides that a person may use non-deadly force upon another person to prevent or terminate an entry or other trespass upon
land, or to prevent the carrying away of personal property, if he believes that three conditions exist:
1.) the other person’s interference with the property is unlawful;
2.) the intrusion affects property in the defendant’s possession, or in the possession of someone else for whom he acts;
and
3.) non-deadly force is immediately necessary
[2] Limitations on Use of Non-deadly Force – Non-deadly force that is otherwise permitted in defense of property is unjustified in
two circumstances.
1.) Force is not "immediately necessary" unless the defender first requests desistance by the interfering party. A request
is not required, however, if the defender believes that a request would be useless, dangerous to himself or to another,
or would result in substantial harm to the property before the request can effectively be made. [MPC § 3.06(3)(a)]
2.) One may not use force to prevent or terminate a trespass to personal or real property if he knows that to do so would
expose the trespasser to a substantial risk of serious bodily injury. [MPC § 3.06(3)(b)]
[3] Recapture of Property – Section 3.06(1)(b) permits the use of non-deadly force to re-enter land or to recapture personal property
if:
1.) the defendant believes that he or the person for whom he is acting was unlawfully dispossessed of the property; and
either
2a.) the force is used immediately after dispossession; or
2b.) even if it is not immediate, the defendant believes that the other person has no claim of right to possession of the
property. Here, however, re-entry of land (as distinguished from recapture of personal property) is not permitted
unless the defendant also believes that it would constitute an "exceptional hardship" to delay re-entry until he can
obtain a court order.
[4] Deadly Force to Prevent Serious Property Crimes – The Model Code goes beyond the common law in permitting deadly force to
protect any type of property in limited circumstances, where the defendant believes that:
1.) the other person is attempting to commit arson, burglary, robbery, or felonious theft or property destruction;
2.) such force is immediately necessary to prevent commission of the offense; and either
3.) the other person previously used or threatened to use deadly force against him or another person in his presence, or
4.) use of non-deadly force to prevent commission of the offense would expose him or another innocent person to
substantial danger of serious bodily injury. [MPC § 3.06(3)(d)(ii)]
§ 10.02 Defense of Habitation
[A] Common Law Use of Deadly Force – It is generally accepted that a person may use deadly force to defend his home, but the
extent to which such exercise of deadly force is justified varies. Some courts allow deadly force only to prevent entry into the home. In
such jurisdictions, once entry has occurred, the defendant is only justified in using deadly force if based on another ground such as self-
defense. Others permit deadly force in the home even after entry has been completed.
There are three approaches to the use of deadly force in defense of habitation.
[1] Early Common Law Rule – Early common law broadly defined this rule to permit a home-dweller to use deadly force if he
reasonably believed that such force was necessary to prevent an imminent and unlawful entry of his dwelling.
[2] "Middle" Approach – A more narrow approach to the defense of habitation provides that a person may use deadly force if he
reasonably believes that:
 1.) the other person intends an unlawful and imminent entry of the dwelling;
2.) the intruder intends to injure him or another occupant, or to commit a felony therein; and
3.) deadly force is necessary to repel the intrusion.
[3] "Narrow" Approach – A narrow version of the defense provides that a person is justified in using deadly force upon another if he
reasonably believes that:
1.) the other person intends an unlawful and imminent entry of the dwelling;
2.) the intruder intends to commit a forcible felony – a felony committed by forcible means, violence, and surprise, such
as murder, robbery, burglary, rape, or arson – or to kill or seriously injure an occupant; and
3.) such force is necessary to prevent the intrusion.
[B] Model Penal Code – A person may use deadly force upon an intruder if he believes that:
1.) the intruder is seeking to dispossess him of the dwelling;
2.) the intruder has no claim of right to possession of the dwelling; and
3.) such force is immediately necessary to prevent dispossession.
[MPC § 3.06(3)(d)(i)] The defendant may use deadly force even if he does not believe that his or another person’s physical well-being is
jeopardized.
This provision is broader than the common law in that the right to use deadly force is not predicated on the defendant’s right to safe and
private habitation, but rather is founded on his right to possession of the dwelling. On the other hand, this provision does not authorize
deadly force merely to prevent an unlawful entry into the home, as the common law originally permitted.
§ 10.03 Spring Guns

An increasing number of states now prohibit the use of a mechanical device designed to kill or seriously injure an intruder to protect
property, even if the possessor would be justified in using deadly force in person. The Model Penal Code bans the use of such devices as
well. [MPC § 3.06(5)(a)]