NE 7.5 Defense of Property

NJI 2d Crim. 7.5

Nebraska Jury Instructions, Criminal

Chapter 7: Affirmative Defenses

7.5 Defense of Property

The defendant acted in defense of (his, her) property if: [(1) the defendant reasonably believed that (he, she) possessed the land; and]

[2] (he, she) reasonably believed that (the force used) against (here insert victim’s name) was immediately necessary (to prevent (here insert appropriate pronoun of victim) from entering upon the land); and

[3] the defendant first asked (here insert victim’s name) to stop or did not ask because of a reasonable belief that asking first would be useless, dangerous, or result in substantial property damage; and

[4] the defendant did not know that (using force) exposed (here insert victim’s name) to a substantial danger of serious bodily harm.

The fact that a defendant may have been wrong in thinking that (he, she) (possessed the land) or wrong in estimating the danger does not matter so long as there was a reasonable basis for what (he, she) believed and (he, she) acted reasonably in response to those beliefs.

COMMENT

In most cases, questions of the lawfulness of a victim’s allegedly provoking actions normally is for judicial determination prior to submission. Taking the facts as presented by the defendant, the question is whether the victim’s actions constitute, for example, unlawful entry. When defense of property is at issue, the last element of the elements instruction will be “that the defendant did not act in defense of his property.” Cf., State v. Warren, 9 Neb.App. 60, 608 N.W.2d 617 (2000).

Unlike the other justification by force defenses, NJI2d Crim. 7.5 requires that the defendant have a reasonable belief in his possession; Neb. Rev. Stat. § 28-1411(1)(a) (Reissue 2008); or his entitlement to possession; Neb.Rev.Stat. § 28-1411(1)(b) (Reissue 2008). Thus, “reasonable belief’ questions are for the jury.

The bracketed language in NJI2d Crim. 7.5 highlights the fact that Neb. Rev. Stat. § 28-1411 (Reissue 2008) contains many different statutory situations where defense of property may be justified. The body of the instruction contains language for § 28-1411(1)(a) in what the Committee believes may be the most common instance of defense of property, a situation where a possessor of real property defends that property against a trespasser. Factor (2) (tailored to be fact specific in the final parentheses regarding what the defendant thought he was protecting against) and factors (3) and (4) always are applicable to a defense of property defense under § 28-1411(1)(a) and therefore always must be included in the body of any instruction given under § 28-1411(1)(a).

If the defense of property justification relied on is not the one described in the body of NJI2d Crim. 7.5, then appropriate language needs to be substituted. The following two suggested instructions cover other possible situations.

The first situation is one in which the defendant alleges that he was dispossessed of movable property under Neb.Rev.Stat. § 28-1411(1)(b) (Reissue 2008). In this situation the statute requires a reasonable belief in an entitlement to possession as compared to the requirement in (1)(a) that the defendant (or one for whom she acts) actually be in possession. Appropriate language might be:

“The defendant acted in defense of (his, her) property if:

“(1) the defendant reasonably believed that (he, she) was entitled to the (here insert movable property taken); and

“(2) (he, she) reasonably believed that (here insert victim’s name) unlawfully obtained the (here insert movable property taken); and

“(3) the defendant first asked (here insert victim’s name) to return the (here insert movable property taken) or did not ask because of a reasonable belief that asking first would be useless, dangerous, or result in substantial damage to the (here insert movable property taken); and

“(4) the defendant did not know that (using force) exposed (here insert victim’s name) to a substantial danger of serious bodily harm; and

“(5) either the defendant reasonably believed that (here insert victim’s name) had no right to the (here insert movable property taken) or the defendant (used the force, here insert particulars of what the defendant did) at the time the (here insert movable property taken) was taken or after a chase of (here insert victim’s name) that immediately followed the taking of the (here insert movable property taken).”

The second situation is one in which the defendant defends his land against a retaking by a victim who was dispossessed of the land. This situation, like the one in the basic instruction of NJI2d Crim. 7.5, occurs under § 28-1411(1)(a). The following language is suggested as a guide:

“(A) The defendant acted in defense of (his, her) property if:

“(1) the defendant reasonably believed that (he, she) possessed the land; and

“(2) (he, she) reasonably believed that (the force used) against (here insert victim’s name) was immediately necessary to prevent (here insert appropriate pronoun of victim) from entering upon the land; and

“(3) the defendant first asked (here insert victim’s name) to stop or did not ask because of a reasonable belief that asking first would be useless, dangerous, or result in substantial property damage; and

“(4) the defendant did not know that (using force) exposed (here insert victim’s name) to a substantial danger of serious bodily harm; and

“(5) the (here insert victim’s name) was not entitled to enter the land to gain possession.

“(B) (Here insert victim’s name) was be entitled to enter the land to gain possession if:

“(1) (he, she) previously was dispossessed of the land; and

“(2) (here insert victim’s name) reasonably believed that (he, she) was dispossessed of the land unlawfully; and

“(3) (here insert victim’s name) reasonably believed that the defendant had no right to be on the land; and

“(4) (here insert victim’s name) reacted to a situation that was so urgent that waiting for a court order would have been an exceptional hardship.”

AUTHORITIES

Neb.Rev.Stat. §§ 28-1411 and 28-1415 (Reissue 2008).

NJI 2d Crim. 7.5