Castles and Carjackers: Proportionality and the Use of Deadly Force in Defense of Dwellings and Vehicles
Posted: 8 Sep 1998
Date Written: February 1999
Prompted by the recent proliferation of "Shoot the Burglar," "Make My Day," and "Shoot the Carjacker" laws, this article offers a detailed theoretical account of the defense of premises privilege, which allows a homeowner (or driver) to use deadly force even when the defender has not been threatened with death or serious bodily injury. The article considers whether this privilege can be reconciled to the traditional requirement in self-defense law that the defender's response be "proportional" to the threat posed.
The article considers five possible arguments that the defense of premises doctrine does preserve proportionality: (1) that a deadly threat should be presumed whenever an intruder unlawfully attempts to enter a dwelling; (2) that defenders are particularly vulnerable in their own homes; (3) that defenders have a specially privileged property interest in their homes; (4) that an intrusion into one's premises involves a threat to privacy, dignity, and honor analogous to the threat present in crimes such as rape and kidnapping; and (5) that the use of deadly force in defense of premises is justified as a means to deter unjustified aggression and punish criminal behavior. The article concludes that, while none of these principles by itself is sufficient to sustain the defense of premises doctrine, the requirement of proportionality might be supported by an aggregation of such interests.
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