Michelle asked me about the rights of intruders versus the rights of homeowners. Hate to say it, but intruders, i.e., criminals, have rights, too. Which rights an intruder gets to exercise depends upon the circumstances, and upon the criminal laws of the various states. And no, they are not all the same. Please do not take this to be legal advice. We can start by asserting that a woman’s home is her castle.
- Whether you live in a castle or a shack, you have the right to peaceful abode.
There are different approaches to this issue.
They all come under the various headings of Duty to Retreat, Homicide in Self Defense, Retreat to the Wall, and so on. You could look these up in any law library in the U.S.A or the U.K. By the way, usually when I quote law cases (called “citations” or just “cites”, I provide the annotations or cites themselves, as is the custom in legal research, to enable the reader to more easily look up the references. However, I will not do so in this article. If you are really interested, by all means contact me at http://skipassets.com through the email method, or even more efficiently, just write to me directly at email@example.com.
In most states, burglary is defined at common law as the breaking and entering of the dwelling of another in the nighttime, with intent to commit a felony therein.
Note here that if the intruder walked into a garage whose door was completely open, no breaking would have occurred upon initial entry (though it may well have been a trespass), while the pushing aside of the curtain across the doorway leading into the house would probably constitute breaking under law. Note as well that if the putative intruder lifts a window, hears a noise within, and then leaves, this has not been a burglary, because not all the elements of the crime of burglary are present. I identifed those elements in the definition of burglary, supra. (I just had to use that legal term!)
So much for breaking.
Now for entering or entry. Pay attention: Entry per se, under criminal law, may be defined as the unlawful insinuating of oneself into a dwelling with intent to commit a felony therein. If that guy at the door, ostensibly selling encyclopedias, sticks his foot in the door as you are trying to close it, he may have perpetrated unlawful entry. Any entry, however slight — finger, foot, tool, or anything else — may be seen as an entering. And remember the guy in the garage? Well, he probably could be charged with unlawful entry, even if he had remained in the garage. Remember this scenario.
No, Michelle, I have not forgotten the question. Just need to lay a good foundation for the Retreat or kill argument.
Smile! You’re on Camera
Evidence of Intent…
… is shown in court by the actions of the accused after he (and yes, sometimes she) entered the dwelling. It may be inferred from the facts. Or, as Perry Mason would say, res ipso loquitur – the facts speak for themselves. Now, this is not Crim Law II: Evidence, so just please be aware that what you are reading is but a brief overview of the foundations of laws impacting on homeowners’ rights v. intruders’ rights. Okay, so what are the facts? Ultimately, in criminal law, the facts of a matter before the court are determined by the fact-finders, the 12 reasonable people who sit in the jury box. Let’s wind up the intent thing.
The time is 2:45 AM.
You are a woman. Home with an infant in the crib. No adult male attends you. The intruder makes his way upstairs to your bedroom, and does not call out, “Honey, I’m home!” He crosses the threshold of your bedroom. Who ya gonna call? If you said, I would run like hell, you are wrong. If you said, “The police”, you are wrong. Maybe dead or raped wrong. The correct answer is, I don’t call anyone. And I don’t have to retreat; this is my home, my castle, my private place. I put three rounds into center of mass, kill the bastard, pick up my baby, cuddle my baby, soothe my baby, and then –
oh, yeah, dial 911.
Time is 2:45 PM.
Different scenario. You are a woman alone in the garage. Your 124-pound male German Shepherd is in the kitchen, on the other side of the door. Man walks into the garage, and asks directions. Doggie starts barking, really really loud. You walk toward the kitchen door. Man hurries out of the garage. You open the kitchen door, and shriek, Sic ‘em Henry! The dog catches up to the man, now at the sidewalk, takes him down, and shreds him.
You need a criminal defense lawyer. Now! Here’s why: In the first scenario, the intruder demonstrated intent by ascending the stairs and attempting to enter your bedroom, in the dark. You perceived him as a clear and present threat in that he put you in fear for your baby’s life, and your own. Your feared for your honor, and physical integrity. (By the way, if you ever have to deal with this scenario, make sure the sucker is dead before you dial 911.)
In the second scenario, the man was essentially fleeing your premises; hence, he presented no visible intent to harm. Alternately, you could have immediately retreated into your kitchen, closed and locked the door, and encouraged your doggie to bark. Instead, you encouraged your dog to attack the man who had presented no threat whatsoever, and your dog munched on him on the sidewalk, a public place.
Fight or Flight
Some words on the legal doctrine of a Duty to Retreat. Whilst in the garage, had the man physically assaulted the woman, or threatened her in any way, placing her in fear for her life or her honor, most state laws hold that she could have defended herself in whatever manner most suitable. This could have been anything from using a tire iron, to a kick in the cookies, to opening the kitchen door and inciting her dog to attack the man. In other words, most states would perceive her as an innocent, a person of lesser strength, unable to defend herself, and as she was legally in her own home, not required to run and hide. If he had put his hands on her, placing her in fear for her life or honor, she probably could have killed him with a tire iron, or turned the dog on him, and been charged with homicide in defense of human life.
On the other hand, had a male adult, noticeably larger in stature than the stranger, come out of the kitchen door, watched the stranger walk toward the woman, and then beat him with a tire iron, other laws would have applied. A prosecutor might have asked questions like Why did you not yell at him? Why did you not just push him down — if indeed he was threatening the woman? Why not send the woman into the house while obstructing the stranger’s path?
Other laws hold here, amongst which the most important may be the doctrine of Reasonable Force. You can’t meet verbal threats with deadly force, no matter what the words are; the responding force must be proportional to the threat, and the conditions.
Let’s go back to that lady alone at home with the infant. Slightly different scenario. She knows husband is out of town. She hears glass break downstairs. She hears someone roaming around downstairs. She looks for her gun, finds it in the closet, loads it, and silently slips downstairs. She quietly pads toward the living room. The intruder has his back toward her; he is loading silverware into his Santa bag. On little cat feet, silent as the fog, she slips up to within ten feet behind him, points her .357 at his back, and snaps off three quick rounds into his back. Dead before hitting the floor, he has signed her arrest warrant.
She is going to be arrested and charged with some degree of intentional homicide, maybe felony murder. Why? She stalked her victim, with intent to kill him. He presented no clear and present threat to her, and had the right to not be ambushed and killed.
LOOKS LIKE WORDPRESS HAS SCREWED ME OVER. THE SYSTEM HAS CORRUPTED THE LAYOUT OF THIS POST. PLEASE EXCUSE THE LACK OF PROPER SPACING.