Law Review: Deadly force may not be used to defend property | SierraSun.com
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Law Review: Deadly force may not be used to defend property

Good fences make good neighbors — or so the expression goes.

Yi Chih (Steve) Chen was not happy when his neighbors began to take down and replace a shared fence. Chen called the Riverside Sheriff’s Department and a deputy arrived concluding the dispute was “a civil issue.”

The deputy told Chen not to make any poor decisions so that she has to return to the scene.

BRANDISHING SHOTGUN

Instead of heeding the deputy’s advice, Chen went upstairs to his bedroom and pointed a shotgun out the window toward the neighbors and their two contractors. The neighbors captured the incident on their cell phone and called 911. The deputy who was barely a block away returned and ultimately arrested Chen who was charged with four counts of assault with a firearm and one count of brandishing a firearm.

Somehow Chen was acquitted by the jury of the assault charges but convicted of brandishing the shotgun. Chen appealed.

ILLEGAL SEARCH

Chen first argued that the deputies, who searched his home without a warrant, violated his Fourth Amendment rights against search and seizure. Chen argued the deputies had no reason to conduct a search and the “fruit of the poisonous tree,” finding the shotgun and ammunition in the house, should be excluded as evidence. The Fourth District Court of Appeal agreed the search was improper but was a “harmless error” because there is ample evidence that Chen had a shotgun and pointed it at the neighbors in the video. Finding the shotgun and ammunition did not affect the jury’s decision in light of the video.

IN DEFENSE OF PROPERTY

Chen’s second argument was that he acted reasonably in defending his property.

The question in the case became whether a person may threaten or use deadly force merely to protect property when there is no threat to the person. This reminds me of my first year of law school at Hastings, so let us digress.

THE TRIPWIRE GUN CASE

One of the famous cases used by law professors teaching first year criminal law was the tripwire gun. A man, I believe in Texas, was tired of having his abandoned cabin broken into, so he setup a tripwire such that when someone opened the door a shotgun would blow the intruder’s knees apart. Very effective no doubt.

The case was cited to illustrate that deadly force may not be used to defend property, given that no one lived in the cabin, the shotgun was used to defend property, not a person.

DRAG THE PERSON YOU SHOT INTO THE HOUSE?

That heading you just read is a cliché that law students frequently cite when discussing using deadly force to defend property. Given that the law allows deadly force “if the intrusion threatens death or serious bodily harm to the occupiers or users of the land,” you may not use deadly force to prevent a mere trespass. You may use deadly force to prevent a home invasion when you are in the home and it is necessary to defend yourself.

Out of that arises the dubious advice that if you shoot a trespasser in your yard, some say you should make it look like they were shot in the house. However, I am not advising that. I am just reporting what law students say and what do they know.

Chen will receive probation for 36 months and serve 3 months of mandatory jail time for the brandishing via an ankle monitor.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.


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