State to state, laws vary about using deadly force in defense of one’s home and its occupants. We recently queried our affiliated attorneys about how broadly the principle allowing defense of one’s home is applied in the various states in which they practice. Because this was a multi-part question, we deviate from our usual commentary format to attribute the answers to each question separately to avoid repeating each question for each response. We asked–
Does your state require citizens to retreat before using deadly force in self defense inside the confines of their homes?
How stringently or expansively does your state define one’s dwelling, habitation, or abode as regards home defense rights? (Does it extend onto the home’s porch or steps? Attached garage? The yard?)
Some have asserted that laws allowing defense of dwellings extends to tents and automobiles (and indeed some do live in cars and tents). Is that true in your state?
When citizens in your state discuss lawful defense of the home, what mistaken beliefs most often need to be corrected?
The attorneys’ responses to our specific questions follow:
Does your state require citizens to retreat before using deadly force in self defense inside the confines of their homes?
Steven C. Howard
209 N. Walnut, Upper Level, Lansing, MI 48933
517-374-9000
http://stevenhowardesq.com/
No! Michigan does not require that the person retreat. You can meet equal force with force. If they escalate to deadly force, you may use deadly force as well. You must pass both the subjective, and the objective standard that your life was in the gravest of extremes. In English: you have to be afraid, and a neutral observer would have to say, “I would be afraid if I was in their shoes.” An objective person, in their shoes, needs to be afraid.
James D. "Mitch" Vilos
Attorney at Law, P.C.
PO Box 1148, Centerville, Utah 84014
801-560-7117
https://mitchvilos.com/
No, Utah is a "Stand Your Ground" state. UCA 76-2-402 & 405.
John R. Monroe
John Monroe Law, PC
156 Robert Jones Rd., Dawsonville, GA 30534
678-362-7650
http://johnmonroelaw.com
No. My state (Georgia) has no duty to retreat in any scenario where deadly force is authorized.
Lcdo Osvaldo Sandoval Báez
Sandoval Báez & Asociados
799 Ave de Diego, Caparra Terrace, San Juan, PR 00921
787-400-3317
No.
Donald J. Green, Esq.
The Law Offices of Donald Green
4760 S Pecos Rd # Suite103, Las Vegas, NV 89121
702-409-8239
https://www.don-green-law-las-vegas-7777.com/
This is Don Green. I am an attorney in Nevada and in California. I have been a lawyer 41 years.
A. In Nevada there is no duty to retreat in your own home before using deadly force, so long as all the elements for deadly force are met: Immediate fear of great body injury or death.
B. Nevada recognizes the castle doctrine and the doctrine of Stand Your Ground. There is no duty to retreat, although if retreat isn't available option, one should retreat to avoid the conflict, again if it is possible to retreat safely.
John W. Chapman, Esq.
Kelly & Chapman
PO Box 168, Portland, ME 04101
207-780-6500
John Chapman here. Maine lawyer since 1980.
Maine generally does NOT require actual retreat, inside or outside the home. That said, outside a dwelling, one cannot use deadly force if one can “retreat in complete safety.” While prudence and logic would dictate retreat in such cases, the law does not. See 17-A MRSA sec. 104 and 108. This is reflected in J. Alexander's “Maine Jury Instructions.”
How stringently or expansively does your state define one’s dwelling, habitation, or abode as regards home defense rights? (Does it extend onto the home’s porch or steps? Attached garage? The yard?)
Steven C. Howard, Lansing, MI
How far it extends: to the sidewalk.
James D. "Mitch" Vilos, Centerville, UT
Utah has a "Defense of Persons on Real Estate" statute: 76-2-407.
John R. Monroe, Dawsonville, GA
It applies to “entry into or attack upon a habitation,” but the statute does not describe what parts of the home count. It just says “dwelling.”
Osvaldo Sandoval Báez, San Juan, PR
Yes. The whole property.
Donald J. Green, Esq., Las Vegas, NV
A. Home, apartment, mobile home.
B. Curtilage surrounding the home.
C. Nevada has extended the castle doctrine into your being in your automobile, truck, or motor vehicle.
A proper defense assumes that you are acting in accordance with lawful conduct: you are not intoxicated; you are not under the influence of any drugs, including marijuana; you are otherwise authorized to own and possess the firearm.
John W. Chapman, Esq., Portland, ME
Maine, in Sec. 2 of Title 17-A (our criminal code), defines a dwelling as a place designed for overnight accommodation of persons. The definition does NOT include garages or storage areas, attached or unattached, no part of which is a dwelling. While not expressly stated, the “footprint” seems to be the operative concept.
Some have asserted that laws allowing defense of dwellings extends to tents and automobiles (and indeed some do live in cars and tents). Is that true in your state?
Steven C. Howard, Lansing, MI
Homestead: wherever you are living/sleeping is your home. That means vehicle, tent, hotel room, a friend’s house or a bedroom and a roommate sharing arrangement.
James D. "Mitch" Vilos, Centerville, UT
Yes, as long as the tent or auto is being used as a home “habitation.”
John R. Monroe, Dawsonville, GA
Yes, Georgia law specifically includes “motor vehicles” as habitation.
Osvaldo Sandoval Báez, San Juan, PR
We don’t have jurisprudence on it and the law is not specific.
Donald J. Green, Esq., Las Vegas, NV
A. A tent is a dwelling for temporary purposes but, Nevada does not have any law preventing any homeless person from possessing a firearm so long as he is otherwise eligible to possess the firearm. So, if a homeless person lives in a tent, he’s authorized to have that, except in areas where firearms are prohibited.
B. The castle doctrine applies to automobiles in Nevada.
John W. Chapman, Esq., Portland, ME
The definition of “structure” (farther down in Sec. 2 of Title 17-A) ropes in some additional dwelling definitions. Vehicles used for transportation are not dwellings, though if a part is so adapted, that part is the dwelling. Thus, a “houseboat” or an Airstream trailer are dwellings. The sleeping area of a "band bus" or the sleeping area of a tractor-trailer are the “dwelling.” By caselaw, the common areas of apartment houses or hotels are not dwelling places.
There is no reason why a tent with cot and bedroll would be disqualified from “dwelling” status, and the Supreme Court (Maine) case of State v. Bruce Akers supports this reading. Akers was rousted out of bed in the night in his pop-up camper. He dodged a murder charge when his statements were excluded.
When citizens in your state discuss lawful defense of the home, what mistaken beliefs most often need to be corrected?
Steven C. Howard, Lansing, MI
Biggest mistakes I’ve seen: they chased somebody, or they move off of their home property before the violence happens. Or they shoot somebody and then don’t call the cops. They should call a lawyer and then call the cops. Once you call 911, they will not let you hang up! Your phone becomes an open mic and a bug in your hand. It records everything you say, and it is perfectly good evidence!
James D. "Mitch" Vilos, Centerville, UT
If the alleged defender really was the initial aggressor.
If the assault really wasn’t an act of self-defense or defense of someone in the home or on the defender’s real property.
John R. Monroe, Dawsonville, GA
People often say, “your car is an extension of your home,” but that is not a valid legal doctrine. In some cases, homes and cars are treated similarly, but in other cases they are treated very differently.
Osvaldo Sandoval Báez, San Juan, PR
Shooting from inside the house to the outside yard.
Donald J. Green, Esq., Las Vegas, NV
A. It is wrong to assume that you can shoot anybody just because they are in your home. There must still be the element of fear of great body injury or death at that moment, not in the past, not in the future, but at that exact moment.
B. You can’t shoot someone just because they’re in your backyard. The elements of great body injury or death must still be apparent.
C. Example: If I am the aggressor in an altercation and I am in my house, Nevada law requires me to disengage, try to retreat before inflicting what is defined as the mortal blow or the shot which kills or injures the other person involved in the fight.
John W. Chapman, Esq., Portland, ME
“You can only shoot if your life is in danger.”
“If you shoot them outside, drag them inside.”
“You can shoot a trespasser in your home.” (More is required to shoot a trespasser even in the home.)
“Never draw a firearm unless you plan to shoot.”
“Pointing a gun or threatening with a gun is deadly force.”
“Pointing or threatening with a firearm is always justified if nondeadly force is justified.”
The most useful statutes in determining the parameters of self defense in the home are all in Maine's Criminal Code - Title 17-A, in Chapter 5. “Use of Force in Defense of Premises” - Sec. 104 - is most pertinent, with the “dwelling” provision of Sec. 108 (Use of Force in Defense of a Person) a close second. The 108 “dwelling” privilege is notable for allowing deadly force to be used against intruders to prevent “bodily injury,” which is a low hurdle. “Bodily injury” means physical pain, physical illness or any impairment of physical condition.
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Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month for the second installment of responses to this question.