In this monthly column, we ask our Network affiliated attorneys to contribute commentary on questions and topics about which Network members are asking. In these unsettled times, a goodly number of Network members have asked questions about using deadly force in defense against rioters entering residential neighborhoods, invading or destroying homes. This concern initiated a series of questions to help members better understand their state laws about use of deadly force in defense of themselves, their families and their homes.
State laws vary on where the line is drawn allowing deadly force to stop intruders, so members are concerned about whether intruders may achieve actual entry into the portions of the home occupied by the residents before they can legally use deadly force in defense of themselves and their families while others are asking if they can stand guard with a rifle at their property line and what to do if threatened there.
We asked our affiliated attorneys how they would respond to Network members from their states asking what the law allows against rioters moving through residential neighborhoods and were very appreciative of their responses to the following questions:
If facing home intruders and arsonists moving through neighborhoods, are residents of your state required to wait until the home has been entered or a fire started on it to stop the attackers?
How do your state’s laws differ on deadly force used to protect residents compared against preventing an arson of an occupied dwelling? What limits are placed on use of force to prevent other kinds of destruction to the home? What restrictions are in place as regards preventing destruction of attached garages, outbuildings or property like vehicles on the home’s lot?
Our affiliated attorneys provided so much information that we ran the first half in July and now, we wrap up the rest in August. If you missed the initial answers, please review and learn from them, too, at https://armedcitizensnetwork.org/july-2020-attorney-question along with these explanatory responses.
Law Office of Brian Craig, PLLC
95 West 100 South, Suite 106 Logan, Utah 84321
When can Utah residents use force in defending their home?
The riots and looting in the wake of the disturbing death of George Floyd in Minneapolis have led many people to ask what rights they have in defending their homes and property. The State of Utah recognizes the strong public policy favoring the right of self defense and the right of persons to protect their homes to preserve peace and good order of society. Certain states use the term “castle doctrine” but Utah does not expressly use the phrase “castle doctrine.” Rather, Utah uses the phrase “defense of habitation.” The main test is whether the person who uses force “reasonably believes” that the use of force is justified under the circumstances. Actual physical entry into the home by an intruder is not required for a person to use reasonable force in preventing an attack upon the home. Utah Code § 76-2-405 states that persons are justified in using force when they reasonably believe “that the force is necessary to prevent or terminate the other’s unlawful entry into or attack upon his habitation.”
Deadly force or serious bodily injury. Utah Code § 76-2-405 also states that a person is justified in the use of force which is intended or likely to cause death or serious bodily injury only if the use of force involves unlawful entry that is “violent, tumultuous, surreptitious, in stealth, or for purpose of committing a felony.”
Rebuttable presumption. Utah creates a presumption that the person using force or deadly force in defense of habitation is “presumed for the purpose of both civil and criminal cases to have acted reasonably and had a reasonable fear of imminent peril of death or serious bodily injury if the entry or attempted entry is unlawful and is made or attempted by use of force, or in a violent and tumultuous manner, or surreptitiously or by stealth, or for the purpose of committing a felony.” Utah Code § 76-2-405. Once the presumption that a defendant was justified in using deadly force in defense of habitation applies, the State may defeat it by showing that the entry was lawful or not made with force, violence, stealth, or felonious purpose. See State v. Karr, 364 P.3d 49, 2015 UT App 287 (Utah Ct. App. 2015).
Broad definition of “home” or “habitation.” The Utah Supreme Court has given a broad definition of what is considered a person’s “home” or “habitation.” The Utah Supreme Court has held that Utah Code § 76-2-405 should be interpreted and applied in the “broad sense” to preserve peace and good order of society. The statute includes not only a person’s actual residence, but also whatever place he or she may be occupying peacefully as a substitute home or habitation, such as a hotel, motel, or even where he is a guest in the home of another. The Utah Supreme Court held, in reversing a man’s conviction for murder in the second degree, that the defense of using force in the protection of one’s habitation was available to the defendant who allegedly used a rifle in protection of his sister’s home which he was occupying as a substitute home or habitation. State v. Mitcheson, 560 P.2d 1120 (Utah 1977).
Definition of “reasonable.” What is considered “reasonable” belief in the use of force means objectively and not subjectively reasonable. The Utah Supreme Court reversed the adjudication for a 17-year-old boy for stabbing two individuals who had entered his home and directed the juvenile court to inquire whether the victims’ entry into the juvenile’s home was unlawful and forcible in determining whether the stabbing was justified. State in Interest of R.J.Z., 736 P.2d 235 (Utah 1987). Ultimately, the question of “reasonable belief” is for the jury as the finder of fact to decide.
Perfect self defense and imperfect self defense. Utah recognizes both perfect self defense and imperfect self defense. Self defense is an affirmative defense that justifies “using force against another when and to the extent that the person reasonably believes that force . . . is necessary to defend the person . . . against another person’s imminent use of unlawful force.” Utah Code § 76-2-402. Perfect self defense is a complete justification and bars a conviction. Perfect self defense applies when a defendant reasonably believes that unlawful force against him is imminent and he is legally justified in using force to defend himself. Imperfect self defense is a partial justification. It reduces a murder charge to manslaughter when a defendant reasonably, but mistakenly, believes “that the circumstances provided a legal justification or excuse” for the use of deadly force. The only difference between the two defenses is that a defendant arguing perfect self defense must show that the use of deadly force was legally justifiable under the circumstances. State v. Silva, 2019 UT 36, 456 P.3d 718 (Utah 2019).
Use of force in defense of property not involving a person’s home. Along with Utah Code § 76-2-405 which applies to the use of force involving a person’s home or habitation, Utah Code § 76-2-406 applies to the use of force in defense of property that does not involve a person’s home. Utah Code § 76-2-406 provides that a person is justified in using force, other than deadly force, against another when and to the extent that the person “reasonably believes” that force is necessary to prevent or terminate another person’s criminal interference with real property or personal property. Furthermore, Utah Code § 76-2-407 governs the use of deadly force in defense of persons on real property other than his habitation if he “reasonably believes” that the force is necessary to prevent a felony by a trespasser that poses an imminent peril of death or serious bodily injury to a person and that the force is necessary to prevent the commission of that forcible felony.
Civil liability. Besides a criminal prosecution, the possibility exists that individuals injured may bring a civil suit as a tort action against persons who use force in defending their home. Utah Code § 76-2-405, which provides for the presumption in the use of force in the defense of habitation, applies to both civil and criminal cases.
Utah’s stand your ground law. Utah’s “Stand Your Ground” statute and common law decisions reflect a public policy favoring the right of self defense. Utah has been a “Stand Your Ground” state since 1994. Utah Code § 76–2–401 provides “a defense to prosecution for any offense” if the defendant acted to protect himself or others from imminent harm. In Ray v. Wal-Mart Stores, Inc., 2015 UT 83, 359 P.3d 614 (Utah 2015), the Utah Supreme Court held that Walmart store employees who were involved in physical confrontations with shoplifting customers and were ultimately fired for violating company policy, requiring employees to disengage and withdraw from potentially violent situations, could sue the store in federal district court for wrongful termination. The Utah Supreme Court held that the policy favoring the right of self defense is a public policy of sufficient clarity and weight to qualify as an exception to the at-will employment doctrine and allow employees to sue for wrongful termination.
Criminal prosecution and the right to a jury trial. In some cases, prosecutors may decide not to charge an individual for using force. For example, in 2015, a Utah County homeowner shot and killed a man who attempted to enter his home. Police said the intruder climbed to a second-floor balcony. The homeowner attempted to speak with the man, who then tried to force his way into the house. The homeowner shot and killed the intruder. Prosecutors decided not to charge the homeowner with any crime. (Associated Press, No charges for Pleasant Grove homeowner who shot, killed intruder, Herald Journal, June 25, 2015) Similarly, in 2018, a Salt Lake County prosecutor said a South Jordan homeowner who shot and killed a woman who broke into his home would not face any criminal charges after police found a knife near the intruder’s body and evidence showed that the intruder threatened the homeowner with the knife before the shooting. (AP State News, No charges filed against Utah homeowner who shot intruder, June 28, 2018.)
If the prosecutor decides to go forward with the case, and the judge decides that sufficient evidence exists after a preliminary hearing to bind the defendant over for trial, the defendant can present evidence of self defense during trial and request a jury instruction. The jury can then decide whether the defendant “reasonably believed” that the force was necessary. Individuals charged with criminal offenses in defending their homes and property should assert their constitutional right to a jury trial and let the jury decide whether the use of force was reasonable under the circumstances.
Alex M. Ooley & E. Michael Ooley
P.O. Box 70, Borden, IN 47106
The questions this month raise a number of interesting issues, and it is impossible to cover all of the specific factual scenarios that could be associated with the general situation described. Before addressing the law in Indiana, we would reiterate the wisdom expressed by Gila Hayes a couple of months ago in the June issue in which she indicated that self-defense encompasses defensive strategies that begin far in advance of the point where deadly force should be considered. We would also remind everyone that every scenario will involve distinct facts, and the question of self defense is ultimately, in many cases, a question of fact to be determined by a jury. However, the jury will be informed of the law via jury instructions and the factual determination made by the jury will be made in the context of the applicable law.
An important law that will likely be applicable in Indiana is our general self-defense statute at IC 35-41-3-2 that provides, in part, that . . . (c) A person is justified in using reasonable force against any other person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person: (1) is justified in using deadly force; and (2) does not have a duty to retreat; if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony . . .
Please note that the statute contemplates instances in which one might be justified in using “reasonable force,” but not necessarily deadly force. Deadly force will not be justified or characterized as reasonable force unless the person reasonably believes that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. One could write a book regarding the definition of “reasonably believes” and we will not go there in the limited space we have here. However, we would refer you to your attorney and Masaad Ayoob’s book Deadly Force as well as the ACLD Network videos that members are provided for further study.
You will no doubt be curious about the term “forcible felony,” which can serve as an element for the justified use of deadly force. That term is defined in our statues at IC 35-31.5-2-138 as a felony that involves the use or threat of force against a human being, or in which there is imminent danger of bodily injury to a human being. We believe this would clearly include murder, rape and arson of an occupied building. One other point to keep in mind is that there are some situations that would preclude applicability of our self-defense statute. For instance, the threat must be imminent, you cannot be the initial aggressor, and your commission of a crime cannot be the cause of the confrontation with the other party.
With respect to the defense of property, Indiana’s “Castle Doctrine” is at IC 35-41-3-2(d), which indicates that a person is justified in using reasonable force, including deadly force, against any other person; and does not have a duty to retreat; if the person reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle. Once again, this statute is difficult to address comprehensively in a limited way. However, please note that it is limited to your dwelling (not a separate business location), occupied motor vehicle, and “curtilage.” You will no doubt ask what “curtilage” means. It is difficult to say with certainty under Indiana law. This may not help much, but according to Indiana pattern jury instructions, the term “curtilage” means the land, not necessarily fenced or enclosed, adjoining the dwelling house including buildings used in the conduct of family affairs and domestic purposes. In determining whether an area or building is within the “curtilage” of a dwelling house, two (2) factors are of principle importance: 1) its proximity to the dwelling, and 2) its use in connection with the dwelling for the purpose of conducting family affairs and domestic purposes.
With respect to property that is not your dwelling, your occupied motor vehicle, or your “curtilage,” IC 35-41-3-2(e) indicates a person is justified in using reasonable force against any other person if the person reasonably believes that the force is necessary to immediately prevent or terminate the other person’s trespass on or criminal interference with property lawfully in the person’s possession, lawfully in possession of a member of the person’s immediate family, or belonging to a person whose property the person has authority to protect. Please note IC 35-41-3-2(e) does not provide for the use of deadly force to protect any property that is not your dwelling, curtilage or occupied motor vehicle. We get some startled and disgruntled responses in our legal class to this concept, but we do not make the law, we are just the messenger.
There is one other point we would like to make as you consider potential defenses to looting and the protection of your property. Although Indiana does not have a “brandishing statute” per se as many states do, we do have a statute that makes pointing a firearm a crime if a person knowingly or intentionally points a firearm at another person (it is a misdemeanor if the gun is unloaded and a felony if the gun is loaded). Think about that the next time you go to a gun show or public range. Anyway, case law in Indiana also indicates that pointing a firearm creates a risk of serious bodily injury, and is construed as the use of deadly force. Hence, one should conclude that the pointing of a firearm is only justified if the use of deadly force is justified. Please consider this as you contemplate and visualize defensive strategies far in advance of the point where deadly force should be considered. In other words, your gun handling skills are critical in addition to a myriad of other skills.
Timothy A. Forshey
Timothy A. Forshey, P.C.
1650 North First Ave., Phoenix, AZ 85003
In light of the chaotic nature of the world of late, I have been inundated with these types of questions from clients, students and acquaintances. It seems everyone is looking for an easy, simple response, as if there is some brightly lit “on/off” switch in the body of self-defense law. Actually, there kinda is—but it’s always subject to interpretation: are you reasonably in fear of an imminent loss of human life? If yes, do what you need to do to save that (those) life (lives). Even if the answer is “yes,” however, STILL use whatever precious seconds you can spare to ask yourself if there is some OTHER way to end that threat short of the use of lethal force and follow that course. If so (my personal favorite, the so-called “Nike Defense,” often works quite well), employ that (those) option(s) before you reach for your gun.
If facing home intruders/arsonists roving through your neighborhood, the legal threshold (interpreted by a prosecutor/judge/ jury) for being reasonably in fear for human life will very likely be lowered. My dear, sainted father told me twice per year, when actually taking my long suffering mom out for a hamburger (either her or the Marine Corps birthday), “…if you have to shoot someone, be sure to drag the body up onto the porch before you call the Sheriff.”
I guess he wanted me to go to prison instead of college (cheaper, but not as much fun, I’d imagine). The old man was wrong (NOT something I could say if he was still around—THAT would place ME in fear for my life). Just because someone has not yet entered your home does not preclude you from being in reasonable fear for human life. Rifles can easily kill you inside of your home when used from outside of your home. So, as with our concern here, can Molotov cocktails. That said, retiring to your improvised rooftop sniper’s nest with your pre-determined DOPE on neighborhood landmarks is not a good idea. You have now shifted from self DEFENSE to OFFENSE. Not likely to be legal.
Simply put, no, you do not have to wait for them to gain entry or light the match in order to be in fear for human life. In the face of a mob, it is likely even more deference will be given to your decision. As one of my heroes, Oliver Wendell Holmes said in Brown vs. United States, “[D]etached reflection cannot be demanded in the presence of an uplifted knife.” I’d imagine he’d say the same about rifles and firebombs. That said, the Court of Public Opinion these days seems to be an even harsher judge than most actual judges. A Mas Ayoob statement is almost always the best last word—make sure your use of lethal force is used only “in the gravest extreme.”
Question 2: In Arizona, we have an actual statute (A.R.S. Section 13-411, nicknamed by many, the “Vigilante Statute”) which absolutely states that one is justified in using deadly force to stop arson of an occupied structure (defined in A.R.S. Section 13-1704). A review of that defining statute for arson will reveal that arson of an occupied structure, or the contents thereof, suffice. So—if, at a party at my home, I inadvertently walk in on a pyromaniac guest in my guest bathroom who is lighting flaming balls of my toilet paper from the candle on the back of my lavatory, and flushing away the resulting ash, it is apparently legal for me to shoot him/her. The moral of the story: don’t trust these statutes to keep/get you out of trouble. Don’t view them as some kind of hunting license. Always fall back on the tried and true: are you reasonably in fear for a human life?
As for the second part of the question, about property in general, the line is quite clear in Arizona—lethal force can NEVER be used to defend property alone. Curtilage (out buildings, garages, etc.) buildings, unless specifically occupied, are still property only. In the face of a crazed mob of arsonists, it may be difficult to determine whether the object of the mob’s focus is occupied. Interestingly, in Arizona, the THREATENED use of lethal force is legal to protect mere property from theft/destruction. Legal, but really, really stupid. I for one, am not willing to kill or die for anything I can replace with the insurance payment, and by threatening to use lethal force when I know I can’t be justified in USING it, I may well escalate the situation to where it then becomes an otherwise avoidable lethal force situation. I would hope (and would argue at trial) that perfect decision making here is difficult if not impossible (see the Holmes quote above). That said, know that your judgment will ALWAYS be scrutinized and questioned, especially if there is a political agenda driving that scrutiny.
A big “Thank You!” to our affiliated attorneys for their very detailed contributions to this interesting discussion. Please return next month when we ask our affiliated attorneys for their thoughts on a new topic.
To read more of this month's journal, please click here.