Excluding a Trespasser Safely

Excluding a Trespasser Safely

The request to desist in paragraph (3)(a) governs how a possessor begins to use force, and paragraph (3)(b) governs whether force may be used at all once the possessor knows what exclusion will do to the intruder. Its text provides that force to prevent or terminate a trespass is not justifiable if the actor knows that excluding the trespasser will expose him to substantial danger of serious bodily harm.¹ The limit works as a veto. The trespass can be real, the land can be the actor's, and the force can satisfy every other requirement, yet the justification disappears when the actor knows that putting the intruder out will place the intruder in serious peril. Because the limit speaks of preventing or terminating a trespass, it tracks the keeping-possession purpose in paragraph (1)(a) and not the retaking purpose in paragraph (1)(b), which has its own limits further on.²

The reason for the veto lies in how the law weighs property against bodily safety. A person may not use deadly force solely to protect property, and that rule rests on the judgment that human life is worth more than property.³ The same balancing explains why property interests have a ceiling: the owner's stake in the land or the item, together with society's interest in condemning unjustified aggression, is weighed against the physical harm to the intruder, and that weight is generally exceeded once a human life is taken.⁴ Paragraph (3)(b) carries this reasoning into a quieter setting. No one need swing a fist or draw a weapon, because the danger comes from where the exclusion leaves the trespasser, such as outdoors in a blizzard. The owner's interest in having the intruder gone is real but modest, and the trespasser's interest in avoiding serious bodily harm is grave, so once the owner knows that the first will cost the second, the balance tips against force.

Two thresholds in the text keep the limit from swallowing the privilege. The danger must be substantial, meaning a real prospect and not a remote possibility, and the harm must be serious bodily harm, which excludes minor discomfort. Nearly every ejection leaves the trespasser somewhat worse off, whether wetter, colder, or simply embarrassed, and if that sufficed no possessor could ever remove anyone. The danger must also flow from the exclusion itself, so the question is what happens to the trespasser because he is put out, and how roughly he was handled on the way is a different matter. Roughness is regulated elsewhere, since paragraph (3)(d) separately restricts deadly force, which means that (3)(b) can defeat the justification even for the gentlest escort.⁵

The only difference between the two scenes is what exclusion does to the person excluded, and the word that carries the limit is knows. The lead-in to paragraph (1) and the exceptions in paragraph (3)(a) ask what the actor believes, and the contrast with the word used here is deliberate.⁶ Belief provisions look at how the situation appeared to the actor, so they extend a justification to someone who acts on appearances. Knowledge works in the opposite direction because it is the trigger for losing a justification: a person cannot know a fact that is not so, and cannot know a fact of which the person is unaware. The justification is therefore forfeited only when the danger is real and the actor consciously recognizes it. An actor who failed to notice the danger, or who should have realized it but did not, has not known it, and this limit does not strip the justification. The functional reason is that a possessor deciding in the moment whether to put someone off the land should not lose the privilege over a peril the possessor never perceived, while a possessor who does perceive it cannot claim to be defending property by knowingly sending a person toward serious harm.

Students commonly carry the belief standard from elsewhere in § 3.06 into this limit and ask whether the actor believed exclusion was safe or whether a reasonable person would have seen the danger. The test is the actor's knowledge, so an exam stem that tells you the actor is aware of the peril triggers the limit, and a stem that supplies only appearances, assumptions, or a danger discovered afterward does not. The limit also removes only the justification for force. The intruder remains a trespasser, and the possessor keeps lawful options such as calling the police, which the common-law approach prefers whenever time permits.⁷ The next limit, in paragraph (3)(c), addresses a different problem: the person holding property who resists someone who was actually dispossessed of it and is lawfully coming back.