FUNK: Did Kentucky Legislators Declare Open Season On Homeless People?

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T. Markus Funk Contributor
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On Jan. 19, the Kentucky House passed the controversial Bill 5, known as the “Safer Kentucky Act.” The bill understandably drew significant local attention due to its sweep and aspiration. But a short provision relating to the use of force to prevent unlawful “camping” has pushed the reform proposal onto the national media stage as well.

Most of the breathless reporting on the bill paints the picture of Kentucky legislators announcing open season on Kentucky’s homeless population, should they wander onto private property. 

Though the bill is far from perfect, claims that it gives homeowners a blanket license to kill are considerably off the mark.

What Commentators Say the Bill Says

The reporting on the proposed law has been damning. Consider, for example, Vice‘s claim that it would “legalize ‘property owners’ killing homeless people in Kentucky.” Local news stories similarly declare that “[t]he anti-homeless provision would authorize violence by property owners on people camping on their property.” And the Jimmy Dore Show characterizes the bill as “decriminalize[ing] the use of deadly force by homeowners against homeless people who had camped out on their land and refused to leave.” 

Other reporting claims that the amendment would sanction “killing a homeless person with no criminal consequences whatsoever,” and Newsweek similarly described the bill as permitting force if “unlawful camping is occurring on said property.” 

What the Law Actually Says

The bill addresses a broad swath of criminal justice topics, ranging from the distribution of abandoned firearms and ammunition and carjacking to physical force used against service animals and involuntary civil commitment. What it does not do, however, is permit a homeowner or lessor – what we will call the “property possessor” – to pull out a gun and simply start firing away at a homeless “camper” they find in their back yard.

Although the bill seeks to change existing law governing a person’s right to protect property, it has no impact on to state’s existing deadly force provision, which requires fear of imminent death or great bodily harm. Nor does it seek to alter the Bluegrass State’s stand your ground law. 

Instead, the bill aims to expand a property possessor’s ability to use force to prevent unlawful camping (that is, to protect property). What most reporting leaves out, however, are two significant requirements before force is authorized

First, force is not authorized unless the property possessor gives notice by telling the “camper” to leave (“cease”). Second, the trespassing camper must have “used force or threatened to use force against the [possessor].” Turning to deadly force, it is authorized only under certain circumstances, including if the camper is trying to dispossess the possessor of his or her dwelling, is attempting a burglary or robbery, or committing or attempting to commit arson.

Neither the Kentucky Statute Nor the Proposed Reform Language Are Perfect

Most of the reporting has ignored these important preconditions to the use of force. Yet, the bill as drafted needs some rethinking. For example, it does not define what qualifies as a threat of “force” (is a light push sufficient?). Further, it fails to explain when the threat must be made (what, for example, if the threat was uttered a week prior?). 

Additionally, the defense-of-property statute does not provide that the possessor’s belief as to the trespass or threat of force must be objectively reasonable. Kentucky does impose these important limitations when it comes to self-defense

Nor does the proposed language say anything about the amount of force used having to be in proportion to the threat posed to the property. 

As I have argued elsewhere, moreover, the failure to require that the possessor’s beliefs be objectively reasonable exposes the public to unjustifiable danger and unnecessarily promotes inter-personal violence. By giving sanction to those who are unreasonably mistaken, Kentucky’s defense-of-property law stoops down to the lowest, most fearful, inattentive, or paranoid denominator. 

Finally, the proposed law has no requirement that the property possessor first call the police to have the trespassing camper removed (which would render the use of force unnecessary) before resorting to force. 

There, as we can see, are plenty of areas where the proposed law can be subject to fair criticism. Yet, commentators are wildly off base when they claim that an unauthorized “camper” can be set upon by trigger-happy Kentuckians following their worst and most violent instincts. 

Self-defense, the “first civil right,” continues to be among criminal law’s most controversial topics. There is plenty of room for genuine debate over where we should draw the line when it comes to self-defense. What we do not need, however, are efforts to further inflame partisan positions and create unnecessarily divisiveness by inventing issues that do not actually exist.

Markus Funk is a former federal prosecutor (Chicago) who has taught criminal and comparative law at, among other law schools, Northwestern University, the University of Chicago, the University of Colorado, and Oxford University (where he also received his doctorate in law). He is the author of Rethinking Self-Defence: The ‘Ancient Right’s’ Rationale Disentangled (Bloomsbury, 2021).

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