The Law: 5 Things to Know About Defending Your Home & Family

Burglarly

Introduction: Understanding “Reasonable” Force

As an American, you have the right to use reasonable force to protect your home, family, and personal property from an intruder if you reasonably believe that the use of such force is necessary to stop the intrusion and protect what’s yours.

Reasonable” is a legal term, which means “just, rational, appropriate, ordinary, or usual in the circumstances.” Courts use the “reasonable person standard” to determine whether that person acted like “a reasonably prudent person” would do under that set of circumstances. An individual who acts “reasonably” under these standards can raise a successful defense and avoid liability.

The most important thing to note is that the laws regarding the defense of home and property family vary from state-to-state. The following discussion provides a very general explanation of the common law developed over the years. To be sure, there are many, many exceptions to these rules, but it’s still helpful to have a basic understanding of what you should do when someone is threatening your home and hearth.

  1. The “Castle Doctrine” is a Home Dweller’s First Line of Defense

The common saying is that a man’s home is his castle. Well, courts generally agree. The “Castle Doctrine” is a legal defense theory that gives a homeowner (renters, occupants, etc. included) the right to protect his (or her) family (and others present in his home) with the use of deadly force. So, if a homeowner kills an intruder, and charges are brought against him for homicide, he would raise the “Castle Doctrine” as a defense to his actions. A person seeking to use it as a defense should remember that the burden is on them to prove that they acted reasonably in response to the threat. This means that the homeowner should be prepared to submit evidence to support his defense.

[For further information about what constitutes a “dwelling place,” “home”, or “dwelling”, see here.]

The Castle Doctrine’s General Requirements

Although the doctrine’s precise rules vary from state-to-state (be sure to check your state’s laws!), there are several general principles:

  • The homeowner must be inside of his home (front yard doesn’t count – this is another issue);
  • The intruder must have been attempting to commit or have committed an unlawful entry into your home; and
  • You must prove that your use of deadly force was reasonable (see above). If a homeowner can’t prove that he was in serious danger, then he can’t use “Castle Doctrine” as a defense. Fortunately, most courts have determined that if someone breaks into a person’s home, it can be believed that the intruder is there to commit serious harm.

Be Aware of “Stand Your Ground” States vs. “Duty to Retreat” States

In many states, there is a “duty to retreat” to safety, if possible, before using force against an intruder. This means that if someone breaks into a person’s home, the homeowner must try with every means to escape before engaging the intruder. On the other hand, in many states there are “stand your ground” laws that remove the homeowner’s duty to retreat, even if they made no attempt to run away. (Florida’s “stand your ground” law gained national attention during the George Zimmerman case.) [List of States].

Remember, even in “stand your ground” states, one can’t raise a defense if there was no reason for him to attack in the first place – for example, if he was the aggressor or instigator in a confrontation, he can’t successful raise this defense.

2. The “Castle Doctrine” is Different from Self-Defense

Self-defense is a defense to a criminal charge or to tort liability. This means that if a person is charged with killing someone, he could argue that he acted in self-defense because he reasonably believed that the aggressor posed an immediate, imminent threat to him or his family. It’s important to note, however, that once an intruder actually enters a person’s home, the usual rules of self-defense actually replace rules governing defense of one’s abode.

Generally, to argue self-defense, one has to prove that the altercation was not his fault (for example, that he did not provoke it). He also has to prove had no means to escape or retreat (in duty to retreat states). And finally, the danger must be imminent.

A person is permitted to use enough force in self-defense to halt any danger from attack, but every threat can’t be an excuse to just cause serious bodily harm or inflict deadly force. In other words, a person can’t argue self-defense if he killed someone or badly injured them just to defend his property — personal danger must be involved.

Further, a homeowner can’t just act out of fear or suspicion of an intrusion; there must be some kind of evidence that someone was trying to attack or break into the dwelling. For example, if a homeowner spots a suspicious person hiding in the bushes, he can’t immediately use force to remove the person. He must first warn the person to leave or call the police.

In sum, the “Castle Doctrine” is different from self-defense because, unlike self-defense, the doctrine does not require danger to life or great bodily harm in order to invoke the right to kill. As mentioned above, many courts have held that if someone breaks into a home, the intruder is dangerous threat. This is because using deadly force to protect a person’s home so that the homeowner can defend his house; rather, it is to protect those inside of his home. Therefore, it’s up to the prosecution to prove that the homeowner acted unreasonably.

3. A Person Can Use a Reasonable Amount of Force to Defend and Protect His Property

A homeowner can use force to stop an intruder from attempting to break in and steal or destroy property. However, the homeowner can only use the amount of force necessary to prevent the intrusion. If the homeowner goes too far, then he could be charged with assault.

A homeowner can use deadly force, such as with a firearm to protect his property, only in extreme circumstances. What is considered extreme is really determined on a case-by-case basis. For example, it can depend on the relationship between the two parties and the circumstances of the situation. Also, if someone steals or takes something from you, you can’t go after the person and use force to get it back.

4. A Person Can’t Use Force to Repel a Police Officer from Taking Property

If a police officer attempts to take property or possessions from a person – even without a warrant – that person can’t use force to protect and defend his property or possessions. Instead, the person has to use the legal process to bring a charge against law enforcement. In particular, the person can challenge the police officer’s actions under the Fourth Amendment of the Constitution.

5. Simple Trespassing Does Not Permit the Property Owner to Threaten or Inflict Harm

Trespass is a wrongful invasion of the property of another. Any unauthorized entry upon the land of another person is a trespass, whether or not the owner suffers any harm from it.

If a landowner wants to sue someone for trespass, he has to prove the following:

  1. The person interfered with anything having to do with his property
  2. through the trespassers physical act or force against that property
  3. which was done without the landowner’s permission

The landowner doesn’t have to prove that the trespasser purposefully intended to trespass; all he needs to do is prove that the trespasser consciously intended to do whatever he did that messed with the landowner’s property. But the most important thing to note is that a property owner cannot threaten bodily harm to trespassers – he could be charged with assault.

Thus, a property owner’s main recourse against trespassers is through the legal process. Obviously, you hope that you never get to that point, so here’s a great article from Outdoor Life with some do’s and don’t about trespassers.

Conclusion

If someone assaults your home, attempts to break in, or actually breaks in, you can generally use any and all force necessary to stop the intruders from inflicting imminent harm to your family. But, you must reasonably believe that the intruder has broken in to commit a felony or cause serious harm to you and your family.

Furthermore, depending upon the circumstances, you can lawfully use a reasonable amount of force to protect your property and possessions. But you can’t threaten or use force against someone who is simply trespassing on your property.

Once again, laws vary state-by-state, so be sure to check your state laws for a full understanding of your rights and defenses.

For a more thorough explanation of the various laws governing self-defense, trespassing, and personal protections, please visit www.prepperlaw.com, the Internet’s only legal resource dedicated to preppers and survivalists!

4 thoughts on “The Law: 5 Things to Know About Defending Your Home & Family

  1. Pingback: Top Seven Articles on Prepper Website for the Week! Just In Case You Missed It! | Ed That Matters

  2. tim

    #4 is inaccurate. You can legally use force to stop an officer from illegally taking your property, if it is in connection with their investigation then let them take and use the 4th amendment. When an officer attempts to take without any type of official cause, like because he wants it, you have the right to protect, just as you have the lawful right resist an unlawful arrest. Use caution and intelligence when deciding on the choice to do so tho, and make sure you have the evidence to back your position. And in some states like mine, you can make a citizens arrest on an officer or anybody else committing a crime, again, make sure evidence supports your actions.

    Reply
    1. RD Post author

      #4 is presented unclearly more than inaccuratly. In this case, #4 specifically pertains to the police conducting a search and seizure — reasonable/constitutional or not — based under what they believed was reasonable suspicion. Thanks for pointing this out.

      Reply

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