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 a substantial amount of information, so much in fact, that we’ll run the first half this month and wrap up the rest in August.

Peter Georgiades
Wayman, Irvin & McAuley, LLC
Three Gateway Center Ste. 1700, Pittsburgh, PA 15222
412-566-2970, Ext. 111

I will address Pennsylvania law, although there are not many (if any) states which differ substantially from Pennsylvania law in these specific respects. My advice is also necessarily informed by my training, and experience as an instructor in firearms and tactics.

The scenario is “rioters entering residential neighborhoods and invading or destroying homes.” This is not the same thing as rioters breaking windows or looting stores, and the law will be applied differently in the two different situations.

Actually, “facing home intruders and arsonists moving through neighborhoods” it is not your problem, legally or practically. Unless you are a sworn officer or acting pursuant to an explicit request for aid from a sworn officer, you have no duty to act, and probably no right to act. Since this is not 1870, and nowadays officers virtually never solicit assistance from private citizens, it is not going to be up to you to stop the rioting, arson or home invasions. Let the police handle it.

With respect to one’s own home, one should give some serious thought, in advance of the mob’s arrival, about whether it is wise or prudent to start shooting it out with rioters in the midst of a riot. The idea that shooting a rioter will cause the rest to disburse is … let’s say, “overly optimistic.” Just ask any officer who has been in that situation. And never presume you are the only one in town who owns a gun.

Putting practicality aside for a moment, in no case is a citizen legally justified in the use of deadly force to prevent the commission of a crime unless it is clear the crime in question is one that normally causes or threatens death or serious bodily harm (which includes arson). But just because arson “normally” causes death or serious bodily harm does not mean it necessarily presents such a threat in every circumstance. One may not use deadly force, for example, to prevent the burning of an abandoned barn out in the middle of a field. And keep in mind that setting foot on one’s real estate is not a “home invasion.” To be a home invasion there must be an invasion of the home (not somebody else’s home at some other point in time), giving rise to another whole set of legal problems.

Further, the individual using deadly force must be actually correct that the person they shoot is the one committing the crime. If one is mistaken, and inadvertently shoots someone who was not actually committing the crime (or actually joining in or assisting in the commission of the crime), the armed homeowner is himself guilty of a serious crime. Depending upon the circumstances, the crime with which he is likely to be charged for making a mistake and shooting the wrong person may be voluntary manslaughter rather than murder, but, bad enough.

Above all, one is never justified, legally, in using deadly force to protect property, including one’s home. In the words of the Pennsylvania Supreme Court:

“To avail oneself of deadly force for self-protection, three factors must be found to exist. First, the actor must have reasonably believed himself to be in imminent danger of death or serious bodily harm, and that it was necessary to use deadly force against the victim to prevent such harm. Second, the actor must have been free from fault in provoking or continuing the difficulty which resulted in the slaying. Third, the actor must have violated no duty to retreat.”

This has been restated eighteen ways from Sunday; but these are always the factors which will justify the use of deadly force. Period. No exceptions for one’s house, antique car of even beloved dog. (Although I admit, if serving on the jury I would not likely vote to convict one who shot a dog killer; but that’s not the law.)

So, the fact the individual who got shot was a “rioter” is irrelevant, except as it may be evidence in support of one of the other elements of a justification defense. For example, the fact the individual is rioting would likely tend to support one’s claims that one did not provoke the incident and was in imminent danger of serious bodily injury or death. But the fact there was a riot going on will not raise a presumption that at the specific time and place of the shooting the armed homeowner reasonably feared for his life or the life of another. If the rest of the demonstrable facts do not support the defense, the defense will likely fail notwithstanding the fact the victim of the shooting was a “rioter” or otherwise guilty of doing bad things.

Then there is the large problem of proving the decedent was a rioter, and not a bystander or mere cheerleader for the rioters. Who is going to testify? The other rioters? The friends and family of the decedent? Was it dark? Was there noise, smoke and confusion?

It is likewise immaterial that the “rioter” was trying to burn one’s home, as opposed to some other structure, except, again, as it may be evidence in support of one of the other elements. In Pennsylvania, being lawfully in one’s home, or in the curtilage around the home, relieves one of the duty to retreat (the third element identified by the Pennsylvania Supreme Court). But it is critical to understand two things about the right to stand one’s ground: (1) because one does not have to retreat does not satisfy the other elements of the defense (a reasonable belief a human being is in imminent danger of being severely injured or killed, the use of deadly force is necessary to prevent the harm, or that one is free from fault in provoking or continuing the difficulty which gave rise to the shooting); and (2) the fact that one is not legally required to retreat does not mean starting a gunfight with rioters is very smart.

So, for example, if one is confronted by a small child who says they are going to burn one’s house down, the fact one is standing before his home does not justify killing the child. Nor does the fact that a “rioter” is setting fire to your car out at the end of your driveway legally justify your killing them, unless you can articulate specific facts which give rise to a reasonable belief that burning the car will put some human being in immediate peril. And standing around one’s property saying things that might later be construed as provocative might well cause the entire defense to fail.

So, it is complicated. And the matter is even more complicated because in the middle of a riot it would be easy to make a mistake, and proof of specific facts is made more difficult.

Those who are compelled to use deadly force in much less tumultuous and confused circumstances, including trained police officers, rarely know all of the facts about who was present, people’s actual motivations, or what went on just before the shooting. They only know the part they saw and heard and actually perceived and understood. (This is why lawyers tell their clients not to make any statements until they have consulted with an attorney, who can then investigate the facts and figure out more of what actually went on.) It is easy to confuse the identities of specific individuals in a dynamic situation, let alone in the dark. And who knows what stupid thing one might be heard to say under the stress and in the excitement of the moment?

The point is that the practical considerations will trump technical legal rights and requirements if a riot shows up on one’s doorstep. Anyone who cares about their own safety or that of their family will avoid the whole situation if at all possible.

Thank heaven the scenario of a riot coming to one’s residential neighborhood is so rare as to be statistically insignificant. But, we never know. So, my advice in the event this kind of trouble ever finds you is: (1) leave if you can safely do so; (2) keep your mouth shut before, during and after; (3) keep your weapon concealed unless and until you are compelled to use it; and (4) buy insurance for your stuff (which does not include any exclusion for “riot” or “civil unrest”); and (5) under no circumstances shoot anybody unless you can articulate specific facts which give rise to a reasonable belief (both words count) the use of deadly force was immediately necessary (both words count) to prevent serious bodily injury or death to an innocent person.

Derek M. Smith
Partner, Law Offices of Smith and White, PLLC
717 Tacoma Ave. S., Ste. C, Tacoma 98402

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?

Washington allows self defense with deadly force in these situations: if you believe you or your family or another is threatened with death or force that may result in death or serious injury and a reasonable person in your situation knowing what you know would feel the same, your use of force would be lawful. So, as to home intruders, my recommendation would be to be sure they are, in fact, trying to invade your home first. Arson is a different story since what may be unreasonable in one place might be reasonable in another depending on conditions on the ground (hot, dry, windy conditions with houses close vs. wet conditions with houses far apart). So, with that, it would depend on the situation. Certainly, if it’s YOUR home and someone is coming towards it with a torch, that’s way different than shooting someone with a torch approaching a house 100 yards away.

How do your state’s laws differ on deadly force used to protect human beings compared to 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?

In Washington, you can only use deadly force to prevent injury to a person, not property. So, an occupied house is clearly within that realm, an unoccupied shed is not without a reason to believe (that you could defend to a jury) it was in fact occupied, not a hunch.

John Chapman
Kelly & Chapman
PO Box 168, Portland, ME 04101
This email address is being protected from spambots. You need JavaScript enabled to view it.

Maine permits the use of deadly force on “premises” to prevent an arson. It does NOT need to be a dwelling or occupied. My theory is that fires, once set, have a mind of their own, hence the relatively expansive permission. A set fire on someone else’s property implies a willingness to risk death or injury.

Note that our statute has a couple caveats: You must “reasonably believe deadly force is necessary.”

You must be some kind of lawful occupant of the premises. See title 17-A MRSA sec. 104.

Neither our defense of person statute, nor our defense of premises statute require that the subject actually enter a “dwelling.” The words used are “has entered or is attempting to enter” [emphasis added]. One need not be actually inside yet.

When dealing with intruders, the threshold for use of deadly force is quite low.

Note that all the above supplement and are in addition to “street rules.” In short, occupants can use deadly force to “prevent” arson on premises, which are NOT limited to dwellings. The use of deadly force to prevent entry by burglars (criminal trespass by someone who intends to commit some other crime) includes those who “attempt” to enter.

The statutes I focused on are “in addition to” the statutes on defense of person. Those are in 17-A MRSA sec. 108.

John I. Harris III
Schulman, LeRoy & Bennett PC
3310 West End Avenue, Suite 460, Nashville, TN 37203
615-244 6670 Ext. 111

Tennessee’s laws on the use of force and the use of deadly force are contained in several sections of the statutes. In Tennessee, the law provides that deadly force can only be used when there is an imminent risk of death or serious bodily harm to an individual. Tennessee Code Annotated § 39-11-611. When someone is in their home or business, the law creates a “rebuttable presumption” that deadly force exists if a) the homeowner/business owner is not engaged in any illegal activity and b) a third person “unlawfully and forcibly enters or has unlawfully and forcibly entered” the home or business. It is not enough that the third person, perhaps a looter, is just in the yard or outside. The rebuttable presumption can be defeated in a criminal case by facts that would show that there was no threat to human life – such as evidence that the looter was only taking merchandise or had already done so and was leaving.

In Tennessee, deadly force cannot be used to terminate a trespass on property. Tennessee Code Annotated § 39-11-614. Deadly force cannot be used to stop a property theft or to protect real or personal property from damage that does not also rise to the level of a threat of death or serious bodily injury. Tennessee Code Annotated § 39-11-614.

In Tennessee, deadly force cannot be used to effect a citizen’s arrest. Thus, if a looter is stealing merchandise or damaging property, a homeowner or business owner cannot brandish a weapon and yell “stop or I will shoot” merely to stop a property crime.

A big “Thank You!” to our affiliated attorneys for their extremely useful contributions to this worrisome question. Please return next month for the second half of our affiliated attorneys’ comments on this topic.

To read more of this month's journal, please click here.