Introduction

Using Force to Protect Property

Introduction

The law lets an owner use some force to protect property, but far less than it lets a person use to protect a body, and the gap comes from how the law weighs the interests involved. On one side of the balance sit the owner's interest in the item and society's interest in respecting ownership and condemning unjustified aggression. On the other side sits the bodily integrity of the thief or intruder, which counts for less because the intruder started the confrontation by acting wrongfully. That discount has a ceiling, because a human life, even a wrongdoer's, is generally valued above property.¹ The ordinary case shows the result. If Ada sees Betty grabbing Ada's lawfully possessed laptop, Ada may use reasonable force to prevent or terminate the theft, but never deadly force, and the same limit applies if Betty is sneaking onto Ada's lawfully possessed land.² A robbery, which involves assaultive conduct toward the victim, ordinarily falls under the rules of self-defense instead, so the property rules in this chapter are aimed at theft and trespass.³

The organizing text for the lesson is Model Penal Code § 3.06, which opens with a lead-in that every later provision inherits. It declares that, subject to the section itself and to § 3.09, the use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary.⁴ That sentence has three working parts. The first is force toward a person: the section addresses what an owner does to another human being, which is the conduct that would otherwise be an assault or a battery and so needs a justification. The second is the actor's belief, which anchors the inquiry in what the actor perceived at the moment rather than in facts discovered afterward. The third is immediacy, a timing requirement taken up in the first section below. The opening words also make the whole grant subject to § 3.09, a cross-reference that qualifies everything that follows and that this chapter does not unpack here.

Paragraph (1) then gives two purposes for which such force may be used, and the difference between them is the difference between keeping and retaking. Paragraph (1)(a) covers force to prevent or terminate an unlawful entry or other trespass on land, or a trespass against or unlawful carrying away of tangible movable property, where the actor possesses the land or property or protects someone who does.⁵ Paragraph (1)(b) covers force to enter or re-enter land, or to retake movable property, after possession has already been lost.⁶ Paragraph (3) of the section then adds three limits on both purposes: the actor must first ask the other person to desist, must not use force that exposes a trespasser to substantial danger of serious bodily harm, and may not use force against a lawful re-entry.⁷ Each of those rules, and the two purposes themselves, presupposes that the force is immediately necessary, so this chapter begins with what that requirement demands.