The legality of defending property with firearms

[DocSabo40]

I'm seeing a lot of posts about business owners in riot areas protecting their property with firearms. I have not heard of any shots being fired. I'm interested in the legality of this. If someone breaks into my house, there is a high probability that they will end up being shot and I will not face criminal charges (I live in GA). Does the same standard apply to the businesses? If a rioter breaks the window with a brick and then forces entry, what could one of these business owners do? I would assume it is largely based on geography, but is there any common ground?

Go easy on me, this is a request for information not a political or moral statement. I keep hearing about more and more folks gearing up for the riots, but I assume the standards of a DGU are still in place during a riot.

[peterb]

Georgia Code Title 16. Crimes and Offenses § 16-3-24

(a) A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to prevent or terminate such other's trespass on or other tortious or criminal interference with real property other than a habitation or personal property:

(1) Lawfully in his possession;

(2) Lawfully in the possession of a member of his immediate family; or

(3) Belonging to a person whose property he has a legal duty to protect.

(b) The use of force which is intended or likely to cause death or great bodily harm to prevent trespass on or other tortious or criminal interference with real property other than a habitation or personal property is not justified unless the person using such force reasonably believes that it is necessary to prevent the commission of a forcible felony.
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(6) “Forcible felony” means any felony which involves the use or threat of physical force or violence against any person.

[Robinson]

I may not completely understand that section of Georgia code, but it doesn't really seem to solve the problem. It seems to be saying that you can use force to protect property in certain cases, but it cannot be lethal force unless lethal force is first threatened by the offender.

Any attempt to prevent someone from damaging property by using force has a very high chance of escalating to a lethal force encounter. So in that case, which party will be seen as the initiator of said force? Georgia's self defense law doesn't protect you if you were the one who initiated the confrontation. So if you initiate the confrontation in order to prevent the person from damaging property, then it escalates into a lethal force encounter, will your acts be considered legitimate self defense or could you be charged with the offense instead?

Looks pretty risky to me.

[blues]

Mark, I am not a lawyer and don't play one on P-F, but my reading is that since the first paragraph implies that as long as you meet the standards of 1, 2 or 3 enumerated below, you can legitimately use reasonable force of some sort to stop the perpetrator from criminal acts regarding the "real" property. Then, if it turns to a life threatening situation, lethal force might be justified.

Key to the question would be what constitutes "real" property in GA? Is it the land, the land and the building, or the land, building, and whatever "appurtenances" are? I have not looked it up. That will be central to whether force might be justified in the above section quoted.

I agree with you, it's perilous no matter how you look at it.

[BehindBlueI's]

Indiana:

With respect to property other than a dwelling, curtilage, or an occupied motor vehicle, a person is justified in using reasonable force against any other person if the person reasonably believes that the force is necessary to immediately prevent or terminate the other person's trespass on or criminal interference with property lawfully in the person's possession, lawfully in possession of a member of the person's immediate family, or belonging to a person whose property the person has authority to protect.  However, a person:

(1) is justified in using deadly force;  and

(2) does not have a duty to retreat;

only if that force is justified under subsection (c).

Subsection (C) is:

(c) A person is justified in using reasonable force against any other person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force.  However, a person:

(1) is justified in using deadly force;  and

(2) does not have a duty to retreat;

if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony.  No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.

So, no, you can't shoot someone *just* for breaking into a business unless it's also your home, curtilage, or occupied motor vehicle (food truck, maybe? Never considered that until just now). You *can* shoot someone for threatening you or another in a way that meets (C). The "force" in forcible felony must be against a human. Breaking a window is force as far as burglary is concerned, but since the force is used against a building it's not the same as a forcible felony. Arson could be a forcible felony or it could not be, depending on if it endangers human lives.

[AKDoug]

As you well know every state is different. In Alaska we don't have a duty to retreat. I have discussed my options with my lawyer and I encourage all business owners to do so. I'm not going to put it out on a public forum on what anyone else should do, or what I was advised to do. I honestly value my business more than my personal home. I would abandon my home and defend my business if I had to make the choice. Many small business owners are just like me in that aspect.

Alaska statute..

(a) Except as provided in (b) of this section, a person who is justified in using nondeadly force in self-defense under AS 11.81.330 may use deadly force in self-defense upon another person when and to the extent the person reasonably believes the use of deadly force is necessary for self-defense against

(1) death;

(2) serious physical injury;

(3) kidnapping, except for what is described as custodial interference in the first degree in AS 11.41.320 ;

(4) sexual assault in the first degree;

(5) sexual assault in the second degree;

(6) sexual abuse of a minor in the first degree; or

(7) robbery in any degree.

(b) A person may not use deadly force under this section if the person knows that, with complete personal safety and with complete safety as to others being defended, the person can avoid the necessity of using deadly force by leaving the area of the encounter, except there is no duty to leave the area if the person is

(1) on premises

(A) that the person owns or leases;

(B) where the person resides, temporarily or permanently;  or

(C) as a guest or express or implied agent of the owner, lessor, or resident;

(2) a peace officer acting within the scope and authority of the officer's employment or a person assisting a peace officer under AS 11.81.380 ;

(3) in a building where the person works in the ordinary course of the person's employment;  

(4) protecting a child or a member of the person's household;  or

(5) in any other place where the person has a right to be.

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and

(a) A person may use nondeadly force upon another when and to the extent the person reasonably believes it is necessary to terminate what the person reasonably believes to be the commission or attempted commission by the other of an unlawful taking or damaging of property or services.

(b) A person may use deadly force upon another when and to the extent the person reasonably believes it necessary to terminate what the person reasonably believes to be the commission or attempted commission of arson upon a dwelling or occupied building.

(c) A person in possession or control of any premises, or a guest or an express or implied agent of that person, may use

(1) nondeadly force upon another when and to the extent the person reasonably believes it is necessary to terminate what the person reasonably believes to be the commission or attempted commission by the other of criminal trespass in any degree upon the premises;

(2) deadly force upon another when and to the extent the person reasonably believes it is necessary to terminate what the person reasonably believes to be a burglary in any degree occurring in an occupied dwelling or building.

(d) Repealed by SLA 2006, ch. 68, § 7, eff. Sept. 13, 2006 .

[peterb]

Not a lawyer, just looking stuff up....
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Georgia Code Title 16. Crimes and Offenses § 16-3-23.1

A person who uses threats or force in accordance with Code Section 16-3-21 , relating to the use of force in defense of self or others, Code Section 16-3-23 , relating to the use of force in defense of a habitation, or Code Section 16-3-24 , relating to the use of force in defense of property other than a habitation, has no duty to retreat and has the right to stand his or her ground and use force as provided in said Code sections, including deadly force.
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GEORGIA CRIMINAL JURY INSTRUCTIONS (G.C.J.I. 2003)

GA 3.02.10 Justification; Use of Force in Defense of Self or Others

A person is justified in threatening or using force against another person when, and to the extent that, he/she reasonably believes that such threat or force is necessary to defend himself/herself or a third person against the other’s imminent use of unlawful force. A person is justified in using force that is intended or likely to cause death or great bodily harm only if that person reasonably believes that such force is necessary to prevent death or great bodily injury to himself/herself or a third person or to prevent the commission of a forcible felony.
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Georgia Code Title 16. Crimes and Offenses § 16-3-21

(a) A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other's imminent use of unlawful force; however, except as provided in Code Section 16-3-23 , a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.

(b) A person is not justified in using force under the circumstances specified in subsection (a) of this Code section if he:

(1) Initially provokes the use of force against himself with the intent to use such force as an excuse to inflict bodily harm upon the assailant;

(2) Is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony; or

(3) Was the aggressor or was engaged in a combat by agreement unless he withdraws from the encounter and effectively communicates to such other person his intent to do so and the other, notwithstanding, continues or threatens to continue the use of unlawful force.
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Georgia Code Title 16. Crimes and Offenses § 16-7-60

(a) A person commits the offense of arson in the first degree when, by means of fire or explosive, he or she knowingly damages or knowingly causes, aids, abets, advises, encourages, hires, counsels, or procures another to damage:
....

(5) Any building, vehicle, railroad car, watercraft, aircraft, or other structure under such circumstances that it is reasonably foreseeable that human life might be endangered.

(b) A person also commits the offense of arson in the first degree when, in the commission of a felony, by means of fire or explosive, he or she knowingly damages or knowingly causes, aids, abets, advises, encourages, hires, counsels, or procures another to damage anything included or described in subsection (a) of this Code section.
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Sounds like arson of an occupied structure would be a forcible felony justifying deadly force, but someone breaking a window and grabbing stuff probably isn't.

[KellyinAvon]

Indiana:



Subsection (C) is:



So, no, you can't shoot someone *just* for breaking into a business unless it's also your home, curtilage, or occupied motor vehicle (food truck, maybe? Never considered that until just now). You *can* shoot someone for threatening you or another in a way that meets (C). The "force" in forcible felony must be against a human. Breaking a window is force as far as burglary is concerned, but since the force is used against a building it's not the same as a forcible felony. Arson could be a forcible felony or it could not be, depending on if it endangers human lives.

I’m still trying to figure out if my curtilage is the back patio or just the screened porch. Hopefully I’ll never have to find out.

[TGS]

I’m still trying to figure out if my curtilage is the back patio or just the screened porch. Hopefully I’ll never have to find out.

A back patio is somewhere we'd have to get a warrant to search; it's curtilage.

I'll leave it to @BehindBlueI's to comment about the factors influencing his investigation of you shooting someone on your back patio and whether or not you're leaving in cuffs, though.

[BehindBlueI's]

I’m still trying to figure out if my curtilage is the back patio or just the screened porch. Hopefully I’ll never have to find out.

It counts as curtilage. The part that's going to be relevant is "reasonably believes that the force is necessary" though, and I suspect you'll find the prosecutor's office will be significantly more interested in minute detail vs breaking into a house where it's much more bright line. I wouldn't be the guy who blasted a drunk sitting on my patio furniture for failing to move along. OC in that situation hasn't caused any raised eyebrows locally, though. Although it was a woman doing the spraying and women tend to get more of the benefit of the doubt when using force against a man in any circumstance.