If you watched yesterday’s video we talked at length about how virtually all the readily available sources of information about defense of property law are bad sources of information—and that includes sources who you might reasonably expect to be well-informed, such as most lawyers, most cops, most firearms instructors, and sad to say even sources like the National Rifle Association.
(If you haven’t yet watched yesterday’s video, I encourage you to pause this one and click here to watch yesterday’s video, then come back here to continue this one.)
What I’d like to do in this video is touch on the top 10 facets of defense of property law that, in my experience, most people don’t understand, get wrong, and make themselves attractive targets of prosecution. When defense of property cases come into my office, often with felony criminal charges at play, these are the 10 most common ways that people have tripped themselves up, and now find themselves spending a lot of money on a costly legal defense—and maybe still end up getting convicted, anyway.
So, let’s dive into the Top 10 facets of defense of property that normal law-abiding armed citizens tend to misunderstand, dangerously so. In the practice of such things, we’ll count down from 10 to 1.
10. Not all property is created equal.
That is, some property is much more defensible under the law than other forms of property. At Law of Self Defense we’ve defined the two major buckets of property for these purposes as least defensible property on the low end and highly defensible property on the high end of that range.
Generally speaking, it’s fair to say that a simple item, say a cell phone, is going to qualify as least defensible property, and your home is going to qualify as highly defensible property. But that’s really an oversimplification and one that can lead to serious legal trouble.
And, by the way, different states define least and highly defensible property differently, and sometimes an individual state changes its own definitions under different circumstances. Sound complicated? It can be—and remember the stakes of messing it up: potentially life in prison, and financial ruin. Pretty important to get it right.
Now, to number 9 of the top 10 facets of defense of property that normal law-abiding armed citizens tend to misunderstand:
9. Whose property is it?
Simply determining whether a property is least or highly defensible doesn’t come close to telling you how much force, and under what circumstances, you can use in defense of that property. There are lots of other factors that can affect the answer to that question.
One of those is whose property is it? Whether we’re talking least or highly defensible property, it can really matter if that property is that of the person defending it. If not, is it the property of a person with whom the person defending has a special relationship (and what qualifies as a special relationship)? If there’s no special relationship, is it property the defender has a legal duty to protect? What if the person you use force against in purported defense of that property themselves has a claim of right to the property—whether you knew that, or not?
Now, to number 8 of the top 10 facets of defense of property that normal law-abiding armed citizens tend to misunderstand:
8. How much is the property worth?
I’ll give you the answer to this one for free, and I bet many of you find it surprising—it just doesn’t matter how much the property is worth. If we’re talking defense of personal property, the law doesn’t care if the property is a 15-year-old flip-phone worth just about nothing, BMW sedan worth $75,000, or you’re the wedding ring your grandmother left you, which is priceless in any meaningful sense.
This disregard for value is also true for defense of your Castle, but perhaps even more surprising. Sure, for defense of property purposes the law doesn’t care if your home is worth $1,000,000, or if it’s a double-wide trailer worth maybe $10,000. Not only that, but the law doesn’t care if your Castle happens to be the $30 Walmart tent your camping in for the weekend. All are going to be treated the same for defense of property purposes.
Now, to number 7 of the top 10 facets of defense of property that normal law-abiding armed citizens tend to misunderstand:
7. Castle Doctrine: It doesn’t mean what you think it means
Speaking of “Castle Doctrine,” that phrase is likely familiar to all of you, but fair warning: what you think it means is almost certainly not what it really means. Properly understood, the legal concept of the “Castle Doctrine” is defined extremely narrowly.
For example, think it has something to do with how much force you can use in defense of your home? Nope. Think it has something to do with how soon you can use force in defense of your home? Nope Think it provides you with a legal privilege to simply shoot anybody unlawfully on your property, or even in your home? Again, no.
Think it might be important to know what Castle Doctrine actually means, as defined by law, and how narrow that doctrine actually is? Better believe it.
Now, to number 6 of the top 10 facets of defense of property that normal law-abiding armed citizens tend to misunderstand:
6. Broad, but limited, privilege to protect your home
Your home definitely qualifies as highly defensible property, and most states have special provisions of law that provide a broad privilege to use even deadly defensive force to protect that home.
But those special provisions, while broad, are also limited, and often in unexpected ways. For example, they don’t apply to just any stranger who is in your home—often that stranger has to have engaged in very specific conduct in order for those special defense of home provisions to be triggered.
Even worse, there are often exceptions that apply even where that person has otherwise triggered the special provisions for defense of your home. And sometimes there are exceptions to those exceptions.
Remember, we’re talking deadly defensive force here, the use of which will either be 100% lawful, and carry zero criminal liability, or 100% unlawful, and carry a potential sentence of the rest of your life in prison without possibility of early release.
Think it might be important to know what these special provisions for defense of your home are, how they are triggered, and what the exceptions might be? I sure do.
Now, to number 5 of the top 10 facets of defense of property that normal law-abiding armed citizens tend to misunderstand:
5. Curtilage: The moat around your “Castle”
Another facet of home defense has to do with what counts as the legal boundary of your “Castle” for legal purposes. Certainly, inside the four walls of your home counts as your “Castle”—but is that it?
In most states, your “Castle” is considered to extend beyond its four walls to include the curtilage of the home, meaning the area immediately around the home that’s part of the normal day to day operation of the home.
Sounds simple enough, but curtilage a surprisingly slippery and subjective concept. For one thing, the definition changes based not just on the physical arrangement of your home and property, but also on the particular way you make use of that arrangement—the definition of curtilage can even change depending on the season of the year!
For another, it’s not your idea of what qualifies as the curtilage of your home that’s going to control the definition of curtilage for defense of property purposes—and therefore what’s going to control the legal outcome of your use of force in defense of that property. What’s going to control the legal outcome of such a case is what’s considered to be the curtilage as defined not by you, but by other people—the police, prosecutors, judge, and jurors. How certain are you that they are going to define the curtilage of your home as broadly as you might?
Think it might be important to understand the factors that are applied in defining the scope of curtilage—and perhaps most importantly, the factors that definitively set the limits of your curtilage? I hope so.
Now, to number 4 of the top 10 facets of defense of property that normal law-abiding armed citizens tend to misunderstand:
4. Can you use devices to protect your property? Yes … and no.
It’s very common for people to use a device to protect their property, and that includes both least and highly defensible property. And sometimes they’re doing so in a perfectly lawful way.
But not all devices are considered equal for this purpose. The law applies specific criteria to determine whether a particular device, in a particular application, is a privileged use of “force” for defense of property purposes—in which case its use is perfectly lawful—or whether it’s a prohibited use of “force” for defense of property—in which case you’re just as guilty for the harm caused by the device as if you’d caused that harm yourself.
Think it might be important to know what those criteria are, and how the law determines whether the use of a particular device in a particular defense of property application is lawful or a crime? I would think so.
Now, to number 3 of the top 10 facets of defense of property that normal law-abiding armed citizens tend to misunderstand:
3. Defense of pets … it’s complicated.
Everyone considers their pet to be as much a member of the family as the humans in the family—perhaps even more than the humans, depending on your particular humans. As such, folks are generally prepared to be decisive in the defense of their furry family member against an attack.
You may be surprised, however, at how shockingly limited your privilege is to use force in defense of beloved pet, no matter how vicious the attack.
Also, are you aware that a prosecutor is fully able to argue that you used your dog, as a weapon, to protect your property, just as if you used a gun or a knife?
You might also be surprised to learn how different the rules are for defending your pet against an attack by a criminal predator on the one hand, and defending your pet against an attack by another animal, on the other. It’s not just that the rules are variations of each other, it’s that the fundamental legal principles that apply are utterly distinct, literally no relationship to each other at all.
And the complexity doesn’t end there—even if you use force only against an animal that’s attacking your pet, you could still end up facing felony charges for the danger your use of force presented to human beings you never targeted at all.
Again, think it might be worth knowing what those rules are, and how to effectively defend your pet while staying within those legal boundaries?
Now, to number 2 of the top 10 facets of defense of property that normal law-abiding armed citizens tend to misunderstand:
2. “We don’t call 911”: Not funny to everybody
We’re all members of the gun community, so we’ve all seen these signs, or posters, or stickers:
“We don’t call 911.”
“Trespassers will be shot, survivors will be shot again.”
“Due to ammo prices there will be no warning shots.”
“Keep honking, I’m reloading.”
Sure, they’re cute. And in the context of a defense of property claim, they can also be utterly destructive.
Why? They are effectively a public announcement that you are prepared to use force even when doing so would be unlawful. Don’t believe me? Then you REALLY need to take our new defense of property course, so you can understand how a prosecutor will try to use evidence of your state of mind to put you in jail for much of the rest of your life.
Now, finally, the number 1 of the top 10 facets of defense of property that normal law-abiding armed citizens tend to misunderstand:
1. Prosecutorial Discretion: A Risky Bet
Another way people get tripped up on defense of property cases is in the context of prosecutorial discretion. This isn’t the prosecutors fault, it’s really a function of how the media reports on defense of property cases.
You may be surprised to know that prosecutors have enormous discretion in deciding what cases to bring to trial. They’re not required to take an obviously easy win to trial if they don’t want to, and they’re free to take a very marginal case to trial if that’s what they want’s to do. It’s their call, period.
This presents a real danger to the uninformed citizen who learns their defense of property law from reading about these kinds of events in the media. Why? Because they’ll frequently read about instances in which force, even deadly force, was used in defense of property, where the prosecutor chose not to bring charges against that defender, and conclude that therefore that use of force in defense of property was lawful.
Well, maybe it was. But maybe it wasn’t, and the reason that defender wasn’t brought to trial wasn’t because they couldn’t have been, but because the prosecutor chose to use their discretion in that defender’s favor. Maybe that defender was 100% vulnerable to successful prosecution and conviction and a long prison sentence, but they just got a lucky break.
The danger, of course, is that we can’t rely on a lucky break, not with potentially the rest of our lives in prison and the financial ruin of our family hanging in the balance. We need to be prepared not for what the criminal justice system might do to us if it’s feeling favorably disposed that day, but rather for what it can do to us if it’s feeling like it would like to throw the book.
And the only way to be prepared for that worst case scenario is not to hope that the system will forgive our perhaps innocent violation of the laws of defense of property, but rather to know what those laws actually are, where those legal boundaries actually are, and to conduct ourselves to we’re well inside those boundaries.
Then when we read those media reports about defense of property events we’ll be able to recognize the ones that were genuinely lawful, and the ones in which that use of force was probably a crime but the defender just got a lucky break. And we don’t be learning the wrong lessons, wrong lessons that can lead us into a felony conviction.
If we do that, if we learn the actual laws governing the defense of property, we’ll be enormously reducing our risks of prosecution not merely because a prosecutor might give us a lucky break, but because we’ve made ourselves hard to convict. Not through legal tricks, but through conducting ourselves lawfully. And if we look hard to convict, we look like an extremely unattractive target to bring to trial.
Transform Yourself: Be Your Own Hero!
OK folks, that’s the top 10 facets of defense of property law that I see normal, law-abiding people like you and me get tripped up on, where they genuinely thought they were using force in defense of property lawfully, and are now shocked to discover that in fact they’d unknowingly stepped over the legal boundaries for the use of force, and as a result have made themselves vulnerable to conviction, prison, and financial ruin.
The good news: You don’t have to be that guy. You can be the guy who possesses genuine expertise, actionable expertise, on the laws governing defense of property. And that’s what tomorrows video is about: How properly understanding defense of property law enables you to make more confident, better informed, and more decisive defense of property decisions, transforming your ability to effectively defend yourself, your family, and your property while also positioning yourself to be hard to convict.
So, that said, I hope you’ll join us for tomorrow’s video.
If you haven’t already, to make absolutely sure you don’t miss tomorrow’s video you’ll want to click here and type in your state and email address in the boxes indicated, and click the “Stay Up To Date” button.
I look forward to seeing you all tomorrow!
Until then, remember:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense CONSULT Program