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253.7 Defense Of Property/Ejectment Of Trespasser

    253.7.1 Defense Of Property: Ejectment Of Trespassers From Real Property
    253.7.2 Defense Of Property: Defendant Not Required to Ask Trespasser to Leave Before Using Force
    253.7.3 Defense Of Property May Ripen Into Self Defense If Defense Of Property Is Met With Attack On The Person
    253.7.4 Ejection Of Civil Trespasser As Defense To Criminal Battery

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PRACTICE NOTE: Where the property is not a dwelling or habitation, deadly force may not be used to protect the property or to eject a trespasser. (See LaFave & Scott, Substantive Criminal Law (West, 1986) §5.9(a), pp. 668-69; see also U.S. v. Peterson (DC Cir. 1973) 483 F2d 1222, 1229 [any unlawful aggression against one's person, habitation or property may justify such reasonable nondeadly force as may be necessary to repel it]; Commonwealth v. Haddock (MA 1999) 704 NE2d 537, 540 [in determining whether defense of property, in sense of ejecting trespassers, may provide defense to criminal charge, relevant inquiry is whether (1) defendant used only nondeadly force, and (2) force used was appropriate in kind and suitable in degree to accomplish the purpose]; State v. Murphy (WA 1972) 500 P2d 1276, 1283.)

    Ordinarily, to justifiably uses force against a trespasser, the owner or possessor must first give the trespasser notice to leave, but if the trespasser makes a violent entry, notice is not essential to the right to defend of one's property.  "...[T]he occupant may not use deadly force as against a mere trespasser, unless the trespasser attempts to commit a forcible felony or unless, when the occupant requests the trespasser to leave or when the occupant uses reasonable force to eject him, the trespasser offers resistance to such a degree as to threaten the occupant's life." (State v. Pellegrino (SD 1998) 577 NW2d 590, 595.)

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RATIONALE: Without a specific instruction the jury might erroneously assume that a person must first ask a trespasser to leave before gaining the right to use self defense in defense of his or her habitation.

POINTS AND AUTHORITIES: A duty to first ask a trespasser to leave has never been included as a prerequisite to the right to defend one's habitation. (See generally FORECITE National™ 253.4.4 [Defense Of Habitation Or Place Of Business]; LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.9(A).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

    A person may use force to remove a trespasser who is in his or her residence or in the area immediately surrounding his or her residence.

    However, if the trespasser is peaceable and well-behaved, it is necessary to ask the trespasser to leave before using force.

[See generally LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.7(d), p. 656; see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A) Inst. 15 [Defense of Habitation] (South Carolina CLE, 1994).]

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PRACTICE NOTE: The principle of the defense of property is analogous to that of all defensive force justifications.  This rule provides that conduct constituting an offense is justified if an aggressor unjustifiably threatens the property of another and the actor engages in conduct harmful to the aggressor (a) when and to the extent necessary to protect the property, (b) that is reasonable in relation to the harm threatened.  (See Robinson, Criminal Law Defenses (West, 1984) § 134; see also Wharton’s Criminal Law (West, 15th Ed. 1993) § 132, pp. 222-23.)

    However, a defended of property may lawfully use self defense if the trespasser attacks the defender.  (See LaFave, Scott, Substantive Criminal Law (West, 1986) § 5.9 p. 669.) "In such circumstances, it is necessary ‘to provide the jury with an instruction harmonizing the defense of use of force to protect property and self defense.’" (Commonwealth v. Birch (PA 1994) 644 A2d 759, 763; see also LaFave & Scott, Substantive Criminal Law (West, 2000 Supp.) § 5.9, fn 10.)

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RATIONALE: Without an explanatory instruction the jury may not understand that a battery is not committed when a property owner seeks to eject or restrain a person who has failed to comply with the conditions of a restrictive consent.

POINTS AND AUTHORITIES: "Ordinarily, the owner of property, in the exercise of his inherent right to protect the same, is justified in restraining another who seeks to interfere with or injure it. [Citation]." (Collyer v. S. H. Kress & Co. (CA 1936) 5 C2d 175, 180 [54 P2d 20].) However, a trespass may occur if the party, entering pursuant to a limited consent, i.e., limited as to purpose or place, proceeds to exceed those limits by divergent conduct on the land of another. (Civic Western Corp. v. Zila Industries, Inc. (CA 1977) 66 CA3d 1, 17 [135 CR 915]; see also Brasure v. State (DE 1972) 291 A2d 287, 289; State v. Peck (IA 1995) 539 NW2d 170, 174.) "A conditional or restricted consent to enter land creates a privilege to do so only insofar as the condition or restriction is complied with." (Rest. 2d Torts, § 168.) Hence, an unlawful touching does not occur when a possessor of private property lawfully attempts to eject or detain one who has initially trespassed or one who has exceeded the bounds of a consensual entry.

    Where the property is not a dwelling or habitation, deadly force may not be used to protect the property or to eject a trespasser. However, nondeadly force may be used. (See LaFave & Scott, Criminal Law (West, 1986) §5.9(B).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

    A lawful possessor of property may consent to others entering the property. Such consent may be conditioned on the others using the property for a specific purpose or at a specific time. This is referred to as a conditional or restrictive consent.

    A conditional or restrictive consent creates a right to enter the property only if the entering party complies with the conditions of the consent. If the entering party fails to comply with those conditions, that person becomes a trespasser.

    As soon as the person becomes a trespasser the lawful possessor of the property is justified either in ejecting the entering party [trespasser] or in physically detaining [him] [her] and calling police to take [him] [her] into custody for investigation.

    The prosecution has a burden of proving that any touching was unlawful and unjustifiable. If you have a reasonable doubt whether the touching was made in the course of a lawful enforcement of a possessor's conditional consent for others to enter the property, you must find the defendant not guilty.

[Source: FORECITE National™.]