Defense of habitation is a defense that applies specifically to the defendant’s residence. At early common law, a person’s home was as sacred as his or her person, and deadly force could be employed to protect it. The majority of states have since enacted modern castle laws that embody this common-law doctrine. Other than the use of deadly force, defense of habitation generally follows the same rules as defense of property, self-defense, and defense of others. Thus this defense of habitation discussion focuses primarily on the use of deadly force.
The first state to expand the defense of habitation to include the use of deadly force was Colorado, with its “make my day” self-defense statute. 1 In 2005, Florida began a wave of castle law modifications that resulted in most states revising their defense of habitation laws. 2 Generally, three elements must be present before the use of deadly force is appropriate to defend habitation under modern castle laws. First, the intruder must actually enteror be in the process of entering the residence owned by the defendant. 3 This excludes intruders who are outside or in the curtilage, which is the protected area around the home. Second, the residence must be occupied when the entry occurs. This excludes devices like spring-guns that protect unoccupied dwellings with deadly force. 4 Third, the defendant must have an objectively reasonable belief that the intruder intends to commit a crime of violence against the occupant(s) after entry. 5 The Model Penal Code provides “[t]he use of deadly force is not justifiable…unless the actor believes that…the person against whom the force is used is attempting to dispossess him of his dwelling…or…attempting to commit…arson, burglary, robbery or other felonious theft…and either…has employed or threatened deadly force…or…the use of force other than deadly force would expose the actor or another in his presence to substantial danger of serious bodily harm” (Model Penal Code § 3.06 (3)(d)).
The majority of states’ castle laws abolish any duty to retreat when inside the home. 6 Florida’s castle law creates a presumption that the defendant has a reasonable fear of imminent peril of death or great bodily injury when the intruder makes an unlawful or forceful entry. 7 This compels the prosecution to disprove the defendant’s reasonable belief of death or great bodily injury beyond a reasonable doubt, which is extremely difficult. Additional features of many castle laws are civil immunity andcriminal immunity from prosecution. Immunity from prosecution means that a defendant who complies with the castle law requirements cannot be sued for damages or prosecuted for a crime based on injury or death to the intruder.
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