Concept
Deadly Force and Devices
Defense of property
Deadly Force and Devices
The earlier parts of this chapter decided when force to protect property is justified at all: the actor must believe the force is immediately necessary, the intrusion or dispossession must be of a kind the Section recognizes, and the actor ordinarily must first ask the other person to desist. This section asks how much force the privilege can carry. The textual hook is the lead-in to the property-defense provision, which makes every privilege that follows subject to the rest of the Section and to § 3.09, so that no property-defense privilege reaches as far as its own words alone might suggest.1 The detail of § 3.09 belongs elsewhere. The limit that matters here is the one that keeps deadly force away from cases in which only property is at stake.
The material comes in three steps. The first is the basic rule that property alone never justifies deadly force. The second is the home, where an intruder threatens people as well as things and the balance shifts. The third is the mechanical device, which raises the question whether an owner may arrange in advance, and then walk away from, force that the owner could not apply on the spot. All three rest on one idea: deadly force answers a threat to a person, and the value of an object, however great, does not create that threat. The first step is the rule itself.
Deadly Force Limit
A person may not use deadly force solely to protect property.2 This is the general, although not universal, position, and it caps everything the earlier sections taught. An owner who has satisfied immediate necessity, faces a genuine trespass or theft, and has asked the intruder to desist holds a privilege to use force, but that privilege does not reach force that kills or seriously injures when the property is the only thing at stake. Lesser force against a thief remains available under the earlier rules, and this limit fixes the ceiling above which no force is justified.
The reason is a balancing of harms, and it has two parts that explain different things. The first part explains why force against a wrongdoer is permitted at all. Defensive force justifications weigh the injury to the aggressor against the interest being defended, and because the aggressor is culpable, the injury inflicted may be permitted even when it is not smaller than the harm avoided.3 In the property setting, the injury to a thief is weighed against the owner's interest in keeping the item together with society's interest in preserving property ownership and condemning unjustified aggression.4 The second part explains the ceiling. Those societal interests can outweigh the worth of the particular item, but their weight is finite, and it is generally exceeded when a human life is taken, because a life, even a culpable aggressor's, is likely to be valued above property.5 An owner's stake in a bicycle or a laptop therefore never reaches the weight needed to justify a killing, however clearly the taker is in the wrong.
The common law gave the same limit a concrete shape. Deadly force was available against forcible and atrocious crimes, such as murder, mayhem, rape, and robbery, because the violence of those crimes means that human life or personal safety from great harm either is or is presumed to be in peril.6 In that account the justification comes from the peril to a person, and the nature of the property plays no part. In People v. Ceballos the California Supreme Court reviewed the conviction of a defendant who had mounted a trap gun in his garage and who argued that the person shot had been attempting a burglary.7 The trap gun is taken up in the last part of this section. Burglary had been included in the list of atrocious crimes, but the court refused to treat it as forcible and atrocious in every case: where the character and manner of the burglary do not reasonably create a fear of great bodily harm, there is no cause for deadly force, and the burglary supplies that fear only if it threatened, or was reasonably believed to threaten, death or serious bodily harm.8 The court added that at common law deadly force could not in general be used solely to protect property.9
When the facts do show danger to a person, the analysis moves to a different body of law. The justification then rests on the threat to the person, so self-defense or defense of others governs, and those doctrines are taught separately.10
The fact that moved the result is the threat to a person. In the first scene the whole stake is a bicycle, so the ceiling applies. In the second the property is no longer the reason for the force, so the owner's justification, if any, comes from a different body of law with its own requirements. On an exam, the stem usually supplies an alarming label such as theft or burglary and then asks whether deadly force was justified. Students lose these questions when they treat the name of the property crime as the justification, because the label alone says nothing about whether anyone's life or safety was in peril.11 The facts to look for are what the intruder said or did toward the people present, and whether anyone was present to be threatened.
Dwellings and Castle Laws
The deadly-force limit meets its hardest test in the home. An occupant who confronts an intruder inside a dwelling is protecting a place, but usually also the people in it, so the line between defense of property and defense of self and others becomes difficult to draw. The doctrine of defense of habitation, which permits force to protect one's dwelling from intrusion, is the label for that overlap, and the excerpted materials describe it as blurring exactly that line.13 The question that follows is whether habitation justifies any deadly force that self-defense and defense of others would not already supply.14
One answer is a rule of unconditional permission. A former Attorney General of South Carolina summed up such a policy in 2001 as “invade a home and invite a bullet,” which raises the question whether a person may shoot any intruder regardless of other circumstances.15 The Model Penal Code gives a narrower answer. Deadly force is justifiable only if the actor believes one of two things about the person against whom the force is used.16
Only the first path is tied to a dwelling. The second is not confined to homes, which shows that the Code's concern is danger to persons and not the character of the place. The words “otherwise than under a claim of right” in the first path matter as well, because someone with a genuine claim to possess the dwelling is in a different position from a wrongdoer, and the retaking rules studied earlier already govern force in that kind of contest.
The reason a dwelling changes the analysis is functional. An intrusion into an occupied home confronts the occupant with a stranger of unknown purpose in the place where the occupant and others are most likely to be present and least able to step away, so the threat to persons that property defense ordinarily lacks is more likely to exist. The Code's second path asks about that threat directly, by looking to deadly force already employed or threatened or to the danger that lesser force would create. The same point explains the result in People v. Ceballos, where no one but the two intruders was on the premises and the burglary therefore threatened no one with death or serious bodily harm.17 Presence of people, and not the word “dwelling,” is what carries the weight.
Statutes often called castle laws build on the same intuition by giving occupants a legal advantage when they use force against someone entering the home. California's section 198.5 gives an occupant who uses deadly force against a person entering the residence a rebuttable presumption that the occupant was in reasonable fear of imminent danger.18 A California court applying that statute held that entry onto an ordinary unenclosed front porch is not entry into the residence, because a reasonable occupant does not expect protection from unauthorized intrusion onto a place that social convention invites strangers, such as the person delivering the newspaper, to approach.19 The court added that an occupant who reasonably believes bodily injury is about to be inflicted by someone on the porch may still use reasonable force and claim self-defense.20 Where the statutory presumption fails, then, the occupant is left with the ordinary inquiry into danger to a person. Statutes of this kind vary from state to state, so an answer should apply the text the problem supplies.
The entry and the place are identical in the two scenes, so the only fact that moved the answer is danger to a person. On an exam, the usual mistake is to treat a dwelling alone as the justification. The better approach is to ask who is present, what the intruder has done or said toward them, and what lesser force would risk, and then to check whether the jurisdiction's statute adds a presumption that depends on entry into the residence itself.
Mechanical Devices
The last problem is deadly force that the owner arranges in advance and then leaves behind. The rule is that a person may not do indirectly, through a spring gun, trap, or similar device, what the person could not do directly. A device is the owner's own force, applied at a time and in a manner the owner chose beforehand, and nothing in the law of property defense changes the character of that force because the owner was elsewhere when it operated. The defendant in People v. Ceballos was convicted of assault with a deadly weapon after a trap gun mounted in the garage of his dwelling struck a person he said was attempting a burglary, and the California Supreme Court affirmed.22
The court's reasoning shows why the absence of the owner counts against the owner and not for the owner. The burglary did not threaten death or serious bodily harm, since no one but the two intruders was on the premises, so deadly force could not be justified on the theory that a person was in peril.23 The court also held that a defendant is not protected merely because the intruder's conduct would have justified the defendant, had the defendant been present, in believing that the intrusion threatened death or serious bodily injury.24 The explanation lies in what presence adds: a person on the scene might realize the true state of affairs and recognize someone the person would not be justified in killing or wounding.25 A device makes its decision once, ahead of time, for whoever happens to trigger it. It cannot ask whether the person at the door is a burglar, a lost hiker, or a neighbor, and it cannot stop when the circumstances change.
Each condition has its own work to do. The first applies the deadly-force limit to the device, since a device built or known to kill or seriously injure delivers deadly force, and deadly force cannot be used solely to protect property. The second asks whether this device is a sensible answer to this kind of intrusion given what the actor believes. The third supplies familiarity or notice: a customary device is one a would-be intruder can expect and avoid, and a warning serves the same function as the request to desist by giving the intruder a chance to stop before harm occurs. Because the three conditions are conjunctive, a warning sign cannot rescue a device that fails the first.27
The owner was absent in both scenes, so the owner's absence cannot be what separates them. The facts that moved the result are the design of the device and whether it is the customary kind. Students lose this issue when they treat the owner's absence as if it cut the owner off from the injury, because the device carries the owner's force into the owner's absence and is judged as though the owner had applied it directly.28
Deadly Force Limit
The rules covered so far, from preventing a trespass to retaking stolen goods, authorize nondeadly force. Above all of them sits a ceiling: a person may not use deadly force solely to protect property.30 Deadly force for this purpose is force likely to cause death or great bodily injury, so the ceiling turns on what the force is likely to do to the other person, whatever the value of the thing being protected.31 The Model Penal Code's own illustration marks the line: when Ada sees Betty grabbing Ada's lawfully possessed laptop, Ada may use reasonable force to stop the theft, but never deadly force.32
The reason for the ceiling begins with the balance of harms that underlies every defensive-force rule. Force against a human aggressor is justified partly because the aggressor's own culpability may be seen as discounting the value of the aggressor's life in the balance.33 That discount explains why an owner may use some force against a thief, but it does not erase the difference between a thing and a life, and the law treats the life as worth more however high the property's price.34 A second reason concerns who decides. A rule allowing lethal force against a thief would make the victim, in a moment and on the victim's own judgment, the person who imposes the gravest sanction the law knows for what is usually a lesser offense, before anyone has tested whether the facts were as the victim believed them. The ceiling therefore keeps a thief's wrongdoing from automatically costing the thief a life, and it leaves the owner with the nondeadly force and the other lawful measures that the earlier rules describe.
The ceiling holds even when the property is valuable and the owner's anger is easy to understand. In a standard illustration, Maria shoots and kills an unarmed thief who has told her that he will not hurt her and wants only her belongings. Her property is very valuable and uninsured, yet the analysis finds her guilty of homicide, because property alone cannot justify deadly force and nothing the thief said or did gave her a reasonable basis to fear for her own life.35 Two facts decide that result: the thief posed no danger to any person, and the worth of the property is not a fact that counts on the owner's side of the scale.
The fact that moved the result in the first scene is the knife. When the thief meets the owner with what reasonably appears to be deadly force, the thief has changed the situation from defense of property to defense of human life, and the rules of self-defense now govern.36 In the second scene the escalation came from the owner, so the privilege ran out and the thief gained a right of self-defense.37 In both directions the question is where the threat to a person comes from, and the owner's property interest never answers it.
Exam stems often supply an alarming label and then ask whether deadly force was justified, and students lose these questions when they treat the name of the property crime as the justification. A label matters only for what it suggests about danger to a person. Robbery involves assaultive behavior, so the victim can usually rely on ordinary self-defense, while a plain theft or trespass supports only nondeadly force, and burglary turns on what crime the intruder actually threatens.38 In People v. Ceballos the California Supreme Court held that burglary is not a forcible and atrocious crime in every case, because deadly force is justified only where the character and manner of the burglary reasonably create a fear of great bodily harm, and that burglary threatened no one because only the two intruders were on the premises.39 The court added that at common law deadly force could not in general be used solely to protect property.40 The shot in that case came from a device, a feature that raises its own questions and is taken up later in this chapter.41
The Model Penal Code writes the same ceiling into § 3.06(3)(d). Deadly force is not justifiable under that section unless the actor believes the person is attempting to dispossess the actor of a dwelling otherwise than under a claim of right, or is attempting arson, burglary, robbery, or other felonious theft or property destruction and either has employed or threatened deadly force or lesser force would expose the actor or another present to substantial danger of serious bodily harm.42 Apart from the dwelling category, which the next section takes up, each path asks about danger to a person. Jurisdictions vary at the edges, because the rule against deadly force for personal property is general but not universal, so an answer should apply the version the problem supplies.43
Dwellings and Castle Laws
The ceiling on deadly force bends at one point, and that point is the occupied home. Entry into a dwelling puts the people inside at risk as well as the property, so the balance of interests that forbids deadly force over a laptop or a toolbox no longer describes the whole situation.45 The occupant also faces a problem of knowledge. Someone who hears a door give way at night cannot tell whether the entrant wants a television or wants to hurt a person, and there is no time to find out. The law answers that uncertainty by letting the occupant's reasonable belief about the entrant's purpose carry the weight, which is why the limits that govern other property are not always applied to a dwelling.46
The common law reached its present rule in stages. An early English view permitted the householder to use deadly force to stop a forcible entry after warning the intruder not to enter, on the theory that defending the home that sheltered life mattered as much as defending life itself.47 Most jurisdictions have rejected that rule as too broad. Today most allow deadly force against a forcible entry into a dwelling only if the occupant reasonably believes the intruder intends to commit a felony inside.48 That felony-intent rule gives the home special weight, because it permits deadly force even when the anticipated crime would not kill or seriously injure anyone in the house.49 Courts word the required belief in slightly different ways, some asking whether the intruder means to commit a felony or to harm someone inside and others whether the entry is for a felony that includes killing or great bodily harm, but under any of these formulations the occupant need not retreat if retreat is reasonably possible.50 In many jurisdictions this castle doctrine has replaced the older approach of asking first and using only minimal force, at least for the dwelling.51
The Model Penal Code builds the rule differently. Deadly force to protect a dwelling is justified under § 3.06(3)(d) only if the actor believes the other person is attempting to dispossess the actor of the dwelling otherwise than under a claim of right, or is attempting arson, burglary, robbery, or other felonious theft or property destruction and either has employed or threatened deadly force against or in the presence of the actor, or lesser force would expose the actor or another to substantial danger of serious bodily harm.52 Apart from the dispossession category, which the drafters treated as a separate and difficult policy question, the Code does not accept a felony alone as enough. It asks for a substantial risk to a person, which is the very danger the dwelling rule was meant to stand in for.53
The two approaches show their difference on the illustrations in the inventory. An intruder forces his way into Maria's occupied condo in the middle of the night, and she reasonably believes he intends a felony inside. The facts say little about what he meant to do once he got in, and the defense can argue that an occupant should not have to investigate his purpose, because an inquiry only adds to her danger. Under the common law rule a jury would probably find her justified, though the case is close.54 Under the Code she would have to persuade the jury that she reasonably believed a serious crime was under way or that, without deadly force, she risked serious bodily injury, and the explanation concludes that a jury would probably agree.55 Compare Julio, who comes to Jorge's door to keep arguing about garbage cans. Jorge has no reason to believe Julio is armed or intends a felony, and Jorge uses deadly force anyway. In many states Jorge would be charged with assault with a deadly weapon, because a homeowner generally may not use deadly force to protect property and nothing suggested a threat of death or serious injury.56
The facts that separate the two are the manner of the entry and what the occupant could reasonably infer from it. A forced entry into an occupied home at night supports a reasonable inference of felonious purpose, while a visitor with a quarrel and no sign of a weapon supports none. Students lose this issue when they treat the setting of the confrontation as the justification, since the home supplies the justification only through what the occupant reasonably believes about the entrant's purpose or the danger to a person.
Castle laws change the second question. They effectively presume that a person who unlawfully and forcibly enters a residence intends to kill or seriously injure someone inside, so the resident is presumed to have a reasonable fear for his or her life and may use deadly force without any duty to retreat.57 The presumption removes the burden of guessing intent, which is the difficulty that made the dwelling a special case to begin with. California presumes a reasonable fear of imminent peril of death or great bodily injury when deadly force is used inside the residence against a person who is not a family or household member and who unlawfully and forcibly enters, provided the occupant knew or had reason to believe the entry was unlawful and forcible.58 Colorado justifies any degree of force against an unlawful entrant when the occupant reasonably believes the entrant has committed or intends a further crime and might use any physical force, however slight, against an occupant.59 Florida's presumption does not require any belief in an additional crime and reaches occupied vehicles as well as dwellings.60 Because these statutes vary from state to state, an answer should apply the text the problem supplies and, where the presumption does not attach, fall back on the jurisdiction's general rule for dwellings. The retreat rules and the fuller treatment of castle laws belong to the self-defense reading.
Mechanical Devices
The rules above assume an owner who is present, who can see the entrant, and who decides on the spot how much force to use. A spring gun, a trap, or a similar device removes all three assumptions: the owner sets it in advance, goes away, and leaves it to apply force later to whoever happens to trigger it. The law answers with one principle, which is that a possessor may not do indirectly what the possessor could not do directly.62 Because deadly force may not be used solely to protect property, a device that delivers deadly force for that purpose meets the same ceiling, and an owner gains nothing by working through a mechanism rather than by hand.63
The reason a device is judged at least as strictly as a present owner follows from what a device cannot do. An owner standing at the door can see who has arrived, give a warning, and stop when the entrant backs away, whereas a device operates automatically even when the occupant is away. It cannot tell a burglar from a firefighter answering an alarm, and it fires in circumstances where the occupant's own life is in no danger.64 A standard torts illustration shows the contrast in one scene.65 Brittany sees Zachary raise a sledgehammer over the hood of her parked Mercedes and knocks him out with a punch, and the privilege to use reasonable force to protect property defeats his battery claim. When Brittany instead sets a spring gun to fire at anyone who enters her garage and Zachary is hit as he enters to vandalize the car, he can recover, because force likely to cause death or great bodily harm may never be used to protect property. The punch was a judgment made while the threat stood in front of her, and the gun was a judgment made earlier on behalf of every possible visitor.
At common law, a device that kills or seriously injures is justified only if the owner would in fact have been justified in taking the trespasser's life had the owner been present, as where the trespasser is trying to enter an occupied dwelling to do great violence to the occupants or to commit a burglary there.66 The Model Penal Code rejects even that limited justification and takes the view that a deadly mantrap is never justifiable.67 The drafters had a practical objection to the common-law test, and a short pair of facts shows it.
That pair of outcomes is the defect in the common-law test: liability depends on fortuitous circumstances, namely the intentions of whichever trespasser happens to be killed or injured, and the owner cannot know in advance who will come.68 A flat bar gives the owner a standard that can be followed at the only moment the owner has any control, which is the moment the device is installed. Jurisdictions that keep the common-law test show its cost, because an occupant whose device injures a firefighter responding to an alarm is strictly liable for the unlawful use of deadly force.69
The Code does allow devices that are not deadly, but it attaches conditions that must all be met. Because a failure on any one of them removes the justification, the provision is best run as a short sequence of questions.
The tort rule runs along parallel lines. The Third Restatement privileges a device only if the type of device is reasonably necessary to protect the property, the particular device is reasonable under the circumstances, the device is customary or reasonable care is taken to make its use known to probable intruders, and the device is not intended or likely to cause serious harm.74 Custom and notice matter for a functional reason. A device the community expects carries a known level of harm, and a posted warning lets a would-be intruder decide to stay out, so both reduce the chance that the device injures someone who never chose to run the risk. Some jurisdictions accordingly permit nondeadly devices, such as electric fences, only when proper warning is posted.75
Applications on the deadly side are straightforward. Maria keeps a deadly cobra in her condo as a mechanical watchdog, and neither the common law nor the Code authorizes a deadly device to defend property, including a dwelling, however valuable the property inside; the animal also endangers firefighters and caretakers who may have to enter in an emergency.76 Dani sets a dart trap that injures Jon, who escapes the worst of it only because he happens to be hugging the wall, and she faces an assault charge because a device that indiscriminately injures intruders or emergency responders is unlawful at common law and this one gave no warning.77 In People v. Ceballos a homeowner who had mounted a trap gun in the garage of his dwelling was convicted of assault with a deadly weapon after it struck a person attempting a burglary, and the California Supreme Court rejected his argument that the attempted burglary made his conduct lawful and affirmed the judgment.78 On the other side of the line, an owner who rings a warehouse with razor-sharp wire, or who installs a spiked fence, uses customary devices that do not carry a substantial risk of serious bodily harm, and the Code permits them.79
Tort law supplies a floor beneath these rules. An owner owes a trespasser only a duty to refrain from willful or wanton injury, and setting a hidden trap that will injure trespassers is the standard example of a breach.80 Under Restatement (Second) of Torts § 85, a possessor who uses a device calculated to cause death or great bodily harm is liable for any harm the possessor would not have been privileged to inflict if personally present, in most cases notwithstanding posted warnings.81 Students lose this issue when they treat a posted warning as converting a deadly device into a lawful one, since warnings and custom matter only for devices that are not designed or likely to cause serious harm.82