What does the law allow me to do against someone who breaks into my home?

Q:

What does the law allow me to do against someone who breaks into my home?

A:

The rights homeowners have to defend themselves against someone who illegally enters their home can vary by state. In fact, 46 states have specific laws, often referred to as “castle laws,” which allow homeowners to defend their home using deadly force against illegal intruders without the legal obligation to attempt to retreat.

However, other states offer little, limited or no castle laws to protect a homeowner’s rights to use force or deadly force. These states include Idaho, Pennsylvania, South Dakota, Iowa, New Hampshire, New Mexico, Virginia, Vermont and Washington, D.C.

Castle Doctrine Explained

The castle doctrine is based on the notion that a homeowner has the right to feel safe and secure in their home (in some states, those laws also extend to a person’s place of business or even their car). If they exist, castle laws allow homeowners to remain in their home when confronted with illegal intruders without attempting to retreat. Unfortunately, a homeowner’s rights to defend their home, even under castle doctrine laws, can vary by state.

For example, states such as Texas have some of the broadest laws allowing homeowners to protect themselves and their home. Although Texas law does not use the term “castle doctrine,” Texas Penal Code §9.31 and §9.32 outline laws that allow state citizens not only to protect their residence, but also their occupied vehicle and workplace.

Under Texas laws, there is a presumption that you acted reasonably and were justified in using force or deadly force if someone illegally and with force enters your occupied habitation. The law also extends to circumstances where someone attempts to remove you from your place of employment, your car or your occupied habitation.

Does this mean that you can shoot anyone who walks across your property? No, Texas laws do not give you the right to shoot all trespassers. You do, however, have the right to use force to prevent trespassing, which might include showing them your gun and creating “apprehension.” You do not have the right to shoot them, however, unless they decide to break your window and climb into your living room.

Like Texas, Florida also has expansive castle doctrine laws. In fact, Florida laws more broadly define the notion of “dwelling” to mean “a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.”

Other states, such as California, have laws that allow a homeowner to protect their home against illegal intruders, but limit when deadly force can be used. For example, under California Penal Code Section 198.5, a California homeowner may only use deadly force within their own home if they have a “reasonable fear of imminent peril or great bodily injury.” Additionally, the entry must be illegal, and the homeowner and his family cannot have “provoked the intruder in any way.”

Some states, however, have no castle doctrine and have even gone as far as to eliminate the right to use deadly force against an intruder if the homeowner knows with certainty that they can safely retreat. For example, according to Article 35 in New York’s penal code, “an actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others, he or she may avoid the necessity of so doing by retreating.”

Protecting Yourself Outside of Your Home

While most states offer legal protections to defend yourself and your family if you are in your home when faced with the threat of imminent danger, whether or not you have the right to stand your ground or a duty to retreat if faced with danger in the public square can be a bit more confusing.

1. Stand Your Ground

Florida was the first state to pass stand-your-ground laws in 2005. Since that time, more than 25 other states have passed similar laws. Under these laws, if you are faced with a life-threatening situation, you are allowed to use deadly force to defend yourself without retreating if you have a right to legally be in that particular location and you are not engaging in illegal activity.

2. Duty to Retreat

The remaining states, including Arkansas, Connecticut, Delaware, Hawaii, Iowa, Maine, Maryland, Massachusetts, Missouri, Minnesota, Nebraska, New Jersey, New York, North Dakota, Rhode Island, Wisconsin and Wyoming have duty-to-retreat laws.

Under duty-to-retreat laws, if it’s possible to do so, a person must attempt to retreat to a place of safety rather than apply lethal force in self-defense. For example, in states such as Arkansas, you are not allowed to use deadly force in self-defense “if the person knows that he or she can avoid the necessity of using deadly physical force with complete safety by retreating.”

Bottom Line

Whether or not you have the right to use deadly force against someone else will depend on the state in which you live; whether you are inside your home, your workplace or your vehicle; and whether your state has stand-your-ground or duty-to-retreat laws.

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Whether you're facing a legal issue or just seeking information, Justipedia aims to be your most trusted resource for legal information on the Web. With the help of legal professionals across the country, we put the law in plain language to help answer your top legal questions.

Justipedia was founded by Internet veterans Cory Janssen and Mitchell Allen. Janssen founded Investopedia.com and grew it one of the largest investing sites on the Web. Allen is an author, speaker and the founder of LeadRival, the leading provider of pay-per-action advertising in consumer legal services.

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