The “defense of property” in D.C.

Most people are familiar with the concept of self-defense in an assault case:  You are permitted to use a reasonable amount of force to protect yourself from immediate bodily injury.   

Less well recognized is the principle that you are also legally permitted to use reasonable force to protect your property, either real property (i.e., land) or personal property (i.e., your belongings).  

Defense of property is an affirmative defense; that is, the defense has the burden of introducing some evidence that the defendant’s actions were in defense of property.  Once that requirement has been satisfied, the burden shifts to the government to prove beyond a reasonable doubt that the defendant was not acting in defense of property.  

According to D.C. model jury instruction 9.520, a person is justified in using reasonable force to protect his/her property from trespass when s/he reasonably believes that his/her property is in immediate danger of an unlawful trespass and that the use of such force is necessary to avoid the danger.  Similarly, if a person reasonably believes that someone has unlawfully trespassed on his/her property, s/he may use reasonable, nondeadly force to secure the property.  

Although the general rule is that there is no duty to retreat from the home before using deadly force (the so-called “castle rule”), the D.C. Court of Appeals has never squarely decided the issue.  Instead, the court seems to have adopted a middle ground approach that “does not impose a duty to retreat but does allow a failure to retreat, together with all the other circumstances, to be considered by the jury in determining of there was a case of true self-defense.”  Bassil v. United States, 147 A.3d 303, 315 n.28 (D.C. 2016).  

With respect to the defense of personal property, jury instruction 9.520 provides that a “person is justified in using reasonable force to protect his/her property from theft or misuse when she reasonably believes that his/her property is in immediate danger of an unlawful taking or misuse and that the use of such force is necessary to avoid the danger.  Similarly, if a person reasonably believes that someone has unlawfully taken his/her property, s/he may use reasonable, nondeadly force to repossess the property. But s/he must act immediately after the taking has occurred, or in hot pursuit of the person who has taken the property. If time has elapsed, a person may not use force in re-possessing the property.