Can You Legally Hurt Someone In Defense of Property?

Are you allowed to harm someone else to protect your home, car, or other property? Find out how castle doctrine and other laws apply to defense of property. 

Everyone knows that you have a legal right to defend yourself under American law. If somebody is trying to stab you with a large knife, you can use force to save yourself from harm.

You can even act to stop someone from hurting or killing someone else. No reasonable person would dispute that you can do whatever is needed to protect your child.

Often, you can even resort to deadly force in protection of life or well-being. This is true whether you act in your own defense of the defense of others.

This legal right of self-defense comes into play in the legal system. Obviously, if you hurt somebody who was trying to stab you to death, they can’t win an assault lawsuit against you.

Defense of your life, or someone else’s, is what’s called “affirmative defense” in both civil and criminal law. That means that even though it’s true that you hit your attacker, you were legally justified and thus not liable.

The law is less definitive when it comes to the protection of property as opposed to life. This article will examine another affirmative defense in criminal law and civil tort law claims: defense of property.

Legal Requirements for the Affirmative Defense

Man pointing a gun to another man with hands on his head

Laws vary from state to state, but California has a good example of the defense of property doctrine. According to California Criminal Jury Instruction 3476, the owner of personal property may use “reasonable force to protect that property from imminent harm.”

This rule is interesting for a few reasons. First, the “imminent harm” language is important. It suggests that a real property owner would be less justified in use of physical force against a trespasser than a vandal or arsonist. Trespassing generally does not cause imminent harm and is thus less serious.

Second, the concept of “reasonable force” is somewhat vague. It means that the force used is what the average reasonable person in the same situation would think is necessary to protect the property.

For example, let’s say that someone is trying to slash your car’s tires with a knife. To stop them, you grab their arm and take away the knife. Your goal is only to take away the knife, and you stop as soon as you have the knife secured. They struggle against you, and in the skirmish they break a finger.

In this situation, you likely have a valid defense. You were acting to protect your property. The only actions you took were to remove the knife before your property suffered imminent harm. Thus, you did not use excessive force.

Once you neutralized the threat, you stopped contact. The vandal’s broken finger is unfortunate. But you were using only the amount of force necessary to protect your property. It’s therefore likely that a jury or judge would find your use of force in this situation reasonable.

Any application of the reasonableness test must account for the circumstances of the incident.

What is the difference between real property and personal property?

Real property is buildings or land. Personal property is non-real estate that can be moved.

It’s very difficult to lay down a general rule of thumb for when the use of force to defend property is reasonable. One should always exercise caution and good judgment.

Is It Okay To Use Deadly Force To Protect Property?

Man in military uniform holding a sniper rifle

The use of deadly force to protect your own life is a reasonable defense in many states. Stand-your-ground laws and the castle doctrine apply in much of the country.

In stand-your-ground states, you generally do not have to retreat before using deadly force if you are attacked.

States with the castle doctrine allow you to use deadly force without retreating in your own home. In other states, you must retreat before using deadly force against an intruder.

In Florida, Statute 776.13 creates a presumption that:

“A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm … when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another”  against a person who is “… in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle …”

Texas Penal Code section 9.42 allows deadly force when you reasonably believe deadly force to be necessary to prevent a property crime. It may also be used to prevent escape after the crime.

Texas’s law is much broader than other states, but still employs a reasonableness test for the use of deadly force. Any response should be rational and appropriate for the situation.

Additional features of many castle laws are civil immunity and criminal immunity from prosecution. In other words, if you must use force to protect yourself or someone else from an intruder in compliance with your state’s castle doctrine, you cannot be sued for damages or prosecuted for a crime based on injury or death to the intruder.

Only about 15 jurisdictions, including the District of Columbia, have little or no castle doctrine laws that allow citizens to use deadly force to protect their homes.

Note that the law does not usually conclude that hand-to-hand combat or martial arts constitutes deadly force.

Protecting Businesses or Other People’s Property

A shelf full of jewelries in a jewelry store

Castle doctrine may apply if you’re defending your own business against an intruder, especially if you fear for your safety.

Depending on the state, you may even have the right to use deadly force to protect someone’s else’s business, if that’s where you work.

For example, Wisconsin allows the use of force to defend someone else’s business if you work for the business or have a relationship with the owner.

Wisconsin Statutes § 939.49(2) provides:

“A person is privileged to defend a 3rd person’s property from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend his or her own property from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such as would give the 3rd person the privilege to defend his or her own property, that his or her intervention is necessary for the protection of the 3rd person’s property, and that the 3rd person whose property the person is protecting is a member of his or her immediate family or household or a person whose property the person has a legal duty to protect, or is a merchant and the actor is the merchant’s employee or agent.” 

Idaho expanded its Code § 18-4009 to justify the use of deadly force: 

“[I]n defense of habitation, a place of business or employment, occupied vehicle, property, or person… against anyone who tries to enter the habitation, business or vehicle with the intent to commit a felony or cause harm.”

Idaho’s law also states that any person who uses force or stealth to enter a home or business is presumed to be doing so with the intent of committing a felony.

“Reasonableness” is generally the test across the country for use of force. (See, for example, the laws of Oregon and Florida.)  In any “stand your ground” state, the best defense to the use of deadly force is that your were in fear for your safety, or the safety of another person. 

As an employee, you are not required to risk your safety to protect your employer’s property. If you work in a store or bank that’s being robbed, let the thief have the money or merchandise.

Many companies have policies that prohibit employees from trying to stop a robber, precisely because the company does not want workers to face additional risk. Additionally, many workplaces prohibit employees from bringing firearms to work, even if they have a concealed carry license.

The Occupational Safety and Health Administration (OSHA) Checklist for Workplace Violence Prevention recommends that workers should never confront or chase robbers or shoplifters, and they should hand over the money in a robbery.

Be Careful When Defending Property

The law recognizes your right to defend property just as it recognizes the right of self-defense. That right, however, is less clear cut because the stakes are lower. Losing property, or having it damaged, is not as serious a problem as being injured or killed. The legal protections that come with it are therefore not as strong.

There are differences among the states when it comes to using force in defense of business property, especially if it’s not your business. If the use of force is objectively unreasonable under the facts, a person could be convicted of a crime or held liable for a tort by using that force.

If you’re concerned about your right to defend your home, vehicle, business, or your employer’s property, talk to an attorney in your state for legal advice. Because these cases are so sensitive to individual facts, it is difficult to know where you stand without a professional opinion.

Matthew Carter, Esq. has been a licensed attorney since 2004. He’s admitted to practice law in California and Nevada, where he was awarded the Martindale.com rating of AV – Preeminent. Matthew has successfully handled a variety of personal injury and wrongful death cases, as well as trials, appeals, and evidentiary hearings throughout state and federal... Read More >>

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