FUNK: Irresponsible Media Misinformation About Lethal Self-Defense Risks Getting People Killed

T. Markus Funk Contributor
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Walk into pretty much any barbershop, bar, or café and you will hear wildly differing opinions about dealing with trespassers. Even Exodus 22:9 has something to say about “all manner of trespass.”  Unsurprisingly, U.S. state laws concerning trespassing vary considerably.

There is, however, one constant:  No state allows deadly force against a “mere” or “simple” trespass.

But you wouldn’t know that from media accounts pushing partisan narratives. These stories, spawned on all sides of the political divide, share a concerning tendency to seriously misstate the law. Whether through sheer carelessness (or worse), such reckless reporting dangerously misinforms the public.  It lead them to think they have leeway to deploy deadly force when they, in fact, don’t.

In service of whipping up emotion to render reporting a bit more clickbaity, legal commentators, journalists, and advocates of all ideological stripes routinely use terrible confrontations like the Ralph Yarl or Kaylin Gillis shootings to distort U.S. self-defense (and, relatedly, defense-of-property) laws.  According to these narratives, U.S. defense of self and property laws fail to responsibly protect the broader public because they are fatally infected with an unsafe, selfish “wild-west vigilante mentality.”

To appreciate the tone and tenor of the reporting, consider some examples:

  • “Shoot First laws—also known as Stand Your Ground legislation—are deadly, reckless, and extreme. They give people a license to kill, allowing them to shoot first and ask questions later, then claim self-defense. People can use deadly force as a first option rather than the last.” Everytown, February 22, 2022
  • Castle doctrine laws create a “legal presumption” that property owners’ defensive acts against an intruder/trespasser are lawful. The New York Times, April 19, 2023
  • “‘Castle doctrine’ laws in the US have long allowed people to kill intruders threatening their homes . . . .”  The Guardian, April 19, 2023
  • Stand-your-ground laws allow defenders to respond with violence, up to and including deadly force, immediately upon “perceiving a threat in a place where they have a right to be.”  The Atlanta Journal-Constitution, April 18, 2023
  • “We are seeing the idea that we are in a shoot-first culture.”  ABC News, April 26, 2023
  • “Arizona . . . allows residents to shoot trespassers on their property.”  Fox News, Feb. 9, 2023
  • “[U]nder Arizona law, deadly force is allowed on one’s own property if the homeowner believes it ‘immediately necessary’ to prevent trespassing.”  The Daily Mail, February 6, 2023

Such reporting leaves the impression that U.S. law is animated by “shoot first, ask questions later” thinking that encourages the exercise of deadly force to stop or eject even an innocent trespasser. Of course, in reality the law permits no such thing.

Even a necessarily brief primer on central self-defense—and, by extension, defense of property—basics reveals the deficiencies in such reporting:

  • Duty to Retreat States.  Approximately one-fourth of U.S. states make a successful self-defense claim unavailable when the defender facing a physical attack could have retreated in complete safety.
  • No Retreat in Home (“Castle Doctrine”) States.  But pursuant to the “castle doctrine,” even those states within the one-fourth requiring safe retreat do not require such retreat in one’s own home or, in some states, one’s own workplace or vehicle (sometimes descriptively called “highly-defensible property”).
  • No Retreat Anywhere (“Stand Your Ground”) States.  The remaining states, sometimes labeled “stand your ground” states, do not impose a categorical duty of safe retreat, regardless of where the attack occurs (my call for a safe retreat requirement under certain circumstances is available here).

So how do these foundational U.S. legal principles, which many in the legal commentariat will be surprised to learn are in line with international norms, relate to the right to use deadly force to stop a trespass?

In the United States, deadly force is available only where the defender reasonably believes the force is necessary to prevent imminent (1) death; (2) great bodily harm, such as serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or other serious bodily injury; or (3) the commission of certain serious offenses/forcible felonies, such as kidnapping, arson, rape, burglary, and robbery.

“Prevent imminent or ongoing simple trespass” or any similar formulation is conspicuously absent from this list of circumstances justifying deadly force.

A “simple” or “mere” trespasser (criminal or not) is generally present on real property without the owner’s consent. A property owner is limited to using “reasonable force” to remove the trespasser. And no state considers deadly force to prevent or stop mere trespass to be “reasonable”  (though the circumstances can of course always physically escalate to where deadly force is appropriate – the devil is in the factual details).

Simply put, a property owner is never authorized to intentionally kill someone solely for purposes of stopping a simple/mere trespass (as opposed to, for example, preventing the attacker from committing the previously mentioned serious crimes).  That is the general law in every state.

As I have argued here in the past, introducing misleading caricatures of U.S. self-defense law’s purported “exceptionalism” into the mainstream for political or persuasion reasons unjustifiably exposes the public to very real dangers.  For example, this misinformation is no doubt at least partly to blame for why so many people believe deadly force against simple trespassers posing no threat of violence, but refusing to leave a property, is legally sanctioned.

Those charged with the serious task of informing us about our laws must do a better job by first educating themselves.  Otherwise, avoidable distractions will continue to get in the way of rational debate over key public policy issues, including gun control and the proper role of defensive force in our society.

Markus Funk (@TMarkusFunk1) is a former Chicago federal prosecutor who taught criminal law at institutions such as Oxford University (where he earned his Ph.D.), Northwestern, and the University of Colorado.  In private practice with an international law firm, he is the author of the book Rethinking Self-Defense: The “Ancient Right’s” Rationale Disentangled (Rowman & Littlefield, 2021), as well as numerous scholarly and mainstream articles on defensive force.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.