Defense of property

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Use of force law summary

We have discussed self-defense a lot here, but not the use of force in defense of property. 

In most jurisdictions, he use of RESAONABLE force is justified in defending property, but deadly force is not.

If someone snatches your cell phone and runs off with it, you are legally allowed to tackle him and take it back, but you can’t shoot him as he flees. That makes sense as you wouldn’t want to kill someone over a cell phone. But interactions with criminals are not predictable. 

So, what happens if the thief, having been tackled, pulls a knife? It would seem at that point, regular self-defense rules applied, but do you have a duty to retreat? 

In general, if you instigate a confrontation, you must disengage and retreat before using deadly force, but if you were not the aggressor, you need not retreat.

So, the question I have not been able to find a definitive answer for is who is the aggressor when you lay hands on a thief? In my mind, he was the aggressor when he took my phone, but some might see it differently, that using reasonable force to recover the stolen item is instigating the confrontation. 

And what if it is someone else’s property? Are you the aggressor if you tackle someone who has snatched a little old lady’s purse?

I’m sure everyone has an opinion, but can anyone provide an answer?

Published by Don Tabor

I am a former Chairman of the Tidewater Libertarian Party and was the 2007 LP candidate for the 14th district VA Senate. Previously, I was the Volunteer State Director for the FairTax. I am married 50 years with two grown children and 5 grandchildren.

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16 thoughts on “Defense of property”

    1. Rittenhouse was running away from Rosenbaum too and only raised his rifle when cornered against parked cars. And he was legally carrying the rifle.

      But that has nothing to do with the posed question about property

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      1. Property protection was the stated reason for Rittenhouse’s presence. If you are protecting property and brandish a powerful firearm, would not the expectation be to shoot anyone who you consider a threat to the property?

        Otherwise, why the gun? Threats alone are worthless unless you are willing to carry them out.

        Same in the Martin case, the stated reason for the actions of Zimmerman were to protect property.

        Interestingly enough, in neither case did the armed shooters identify themselves as legitimate security patrols. No uniforms, no announcements.

        And neither were authorized by the property owners to protect their property.

        So who would have known that Zimmerman or Rittenhouse were protecting anything, or just looking for a confrontation. I think that would be important in a self-defense case.

        If, as some would assert, we should all be armed, then perhaps we need to tighten the rules of engagement so grandma doesn’t get killed by some self professed vigilante as she tried to get in her house after losing a key. And if the vigilante just pops up, no uniform, who is responsible for any deaths or injuries.

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          1. So how does anyone know that a Rittenhouse or a Zimmerman is protecting or just looking for trouble. Or even a looter or robber.

            Carrying a heavy weapon with the finger in the guard is not brandishing? How about threatening deadly force?

            There is a problem with everyone walking around armed. Who are the “good guys”?

            Don’t forget, these killings took place at night. One in the rain and one in a very chaotic situation with folks running all over the place.

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          2. …”legally guarding property”…

            Yeah. Let’s leave my home state and go next door to protect property that has nothing to do with me or my family, and protect it because some Facebook posting recruited people to do just that.

            It may be “legal”, but it sure seems like a a 17 year old with a gun fetish wanted to go play cops and robbers in SOMEONE ELSE’S backyard.

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          4. Lights, cameras, police would work where I live. Police get here in minutes off the main street.

            Stepping out with a gun to confront young vandals is an invitation to disaster. Too many are also armed.

            Do you have some details about what you would do?

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          5. I have a phone and a camera. Shoot a picture of the perpetrator and call the police and provide them with the evidence. I will not grab my single shot 16 gauge and start firing pumpkin balls at the vandal.

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  2. RE: “who is the aggressor when you lay hands on a thief?”

    Establishing the aggressor may not be key. Suppose the hypothetical were stated differently: You have laid hands on the thief, he pulls a knife on you, do you then have a duty to retreat?

    https://volokh.com/2013/07/17/duty-to-retreat/

    This approach would at least allow you to examine the established principles in the common and statutory law.

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    1. Ooops. I see that duty to retreat is mentioned in the post. Still, I think duty to retreat is the doctrine that needs to be explored to answer the hypothetical.

      Blackstone wrote, “They cannot therefore legally exercise this right of preventive defense, but in sudden and violent cases; when certain and immediate suffering would be the consequence of waiting for the assistance of the law. Wherefore, to excuse homicide by the plea of self-defense, it must appear that the slayer had no other possible means of escaping from his assailant.”

      In common law, then, establishing the aggressor is secondary to establishing whether “certain and immediate suffering would be the consequence of waiting for the assistance of the law.”

      https://lonang.com/library/reference/blackstone-commentaries-law-england/bla-414/

      The problem is that different states have written different statutes to add or remove duty-to-retreat requirements. These statutes, in turn, are of varying quality with respect to the common law that Blackstone describes.

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  3. Some vigilantes show up to protect a car dealership. No contracted but rather a media call by militias to come and protect.

    A man gets shot in the chaos. Perhaps an errant shot. Who is liable?

    Can defense of property be a legitimate reason? Even if not requested or contracted by the business.

    Is the shooter liable if he thought he saw a break-in but it turned out to be the owner of the car? Of course he is.

    What if he brandished his weapon to deter the owner. Then the owner reaches into the glove compartment and pulls a gun and shoots to defend himself. So now who has the duty to retreat?

    We are talking property which might not satisfy deadly force requirements. So now we have possible legitimate claims from both sides.

    Introducing guns among vigilantes will lead to no good in my opinion.

    Last year an undercover cop was beaten badly by fellow cops at a demonstration that had turned violent. I would say the odds are even better with non-uniformed and untrained militia members taking the law into their own hands.

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    1. RE: “Some vigilantes show up to protect a car dealership.”

      It is not illegal to be a vigilante, nor is it illegal to protect property that doesn’t belong to you.

      Frankly, it is a little weird to propose that the law should be applied differently to different people based on some category to which they belong.

      RE: “We are talking property which might not satisfy deadly force requirements.”

      Property protection has nothing to do with deadly force requirements. Generally speaking you can use deadly force in self defense whenever it is reasonable to do so.

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  4. Except Texas. A neighbor, seeing a man, exiting the house next door by the window, chased the man two blocks before back shooting him. No charges were filed. His actions were within Texas law.

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