Defense of Property

Fundamentals of Criminal Law by Adam J. McKee

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All jurisdictions allow people to use some degree of force in the defense of their property under certain circumstances. In matters of law, property can usually be categorized as either real property or personal property. Real property is land and anything permanently attached to it (think “real estate”).  Personal property is any movable object that a person owns or lawfully controls.  Real property usually suggests houses, but, as with the common law, houses (and other dwellings) are afforded special rights and protections by modern statutes.  

The Model Penal Code provides “the use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary: (a) to prevent or terminate an unlawful entry or other trespass upon land or a trespass against or the unlawful carrying away of tangible, movable property” (Model Penal Code §3.06(1) (a)).  This idea often extends to the defendant’s right to chase someone who steals personal property and take the property back. In general, the Model Penal Code and most states do not authorize the use of deadly force to protect property under any circumstances.  Were such an authorization made under state law, it would likely run afoul of the federal Constitution under the logic of Tennessee v. Garner.  

A closely related idea is the lawful right to eject trespassers from real property.  A trespasser is an individual who is present on real property without the consent of the owner. Property owners have the legal right to eject trespassers, but only under particular circumstances.  Most states also allow for an agent of the owner to make such a removal. The quintessential example would be a “bouncer” employed by a bar. Most states require that the property owner first ask the trespasser to leave, and then allow a reasonable amount of time for the trespasser to comply with the request.  As you probably guessed, the amount of force authorized in such situations is evaluated under a reasonableness standard.  In other words, the use of force will not be lawful if it is not reasonable (e.g., it is excessive) under the circumstances that gave rise to the question.

Modification History

File Created:  07/17/2018

Last Modified:  05/03/2021

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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