How far can you go to lawfully protect yourself in a home invasion?

Marilyn McMahon, Deakin University

Over the weekend, New South Wales police charged a man with murder after an alleged burglar died following an incident in the man’s home in the early hours of Saturday. Conversely, in a separate case, committal proceedings are continuing against two men charged with murder allegedly committed during a home invasion in Western Sydney in 2014.

How far can homeowners lawfully go to protect themselves in a home invasion in Australia? Where is the line drawn between self-help and vigilantism?

What is home invasion?

“Home invasion” is a popular rather than legal term. It emerged in the 1990s to describe multiple offenders, carrying weapons, who unlawfully enter a home, intending to rob or injure persons inside.

Australia has no specific offence of “home invasion”. Relevant offending is usually prosecuted through offences including robbery/armed robbery, break and enter with intent, burglary/aggravated burglary, and assault.

However, two states – South Australia and Western Australia – have laws that deal specifically with the issue of self-defence to home invasion. Additionally, protection against home invasion may involve the occupier performing a citizen’s arrest.

Self-defence, defence of property, and home invasion

In most home-invasion cases, occupiers who discover a person unlawfully in their home will be acting in defence of themselves and their family – as well as protecting their property.

Although the laws of self-defence vary across Australia, most laws require in essence that the person believed on reasonable grounds that it was necessary in self-defence to do what they did. And, from their perspective, there must have been reasonable grounds for that belief.

South Australia and Western Australia – the two states that have laws specifically dealing with self-defence to home invasion – require that occupants who act in defence of themselves or another, or to protect property against an intruder, must believe on reasonable grounds that it is necessary to do so, but relax requirements of proportionality in the home occupier’s response.

The approach generally adopted in Australia differs significantly from the “stand your ground” approach to self-defence that has been influential in the US. “Stand your ground” generally encourages “self-help” by removing any requirement of retreat. It permits a person who is threatened or attacked to stand their ground and claim self-defence even where an avenue of retreat or other means of avoiding the conflict was safely available.

It is claimed that these laws originate from the old common-law castle doctrine. This effectively provided that a person attacked in their home could use reasonable force, including fatal force, to protect their life without any duty to retreat from the attacker. But, in reality, these modern laws go far beyond that 17th-century tradition.

Their popularity is underpinned by factors that are distinctive to the contemporary US: high levels of gun ownership; a belief in the constitutional right to bear arms; and decreasing public confidence in the ability of law enforcement agencies to protect the community.

Approaches to self-defence in Australia still tend to emphasise reasonable necessity and discourage vigilantism. Police advise Australian homeowners against keeping weapons for protection and instruct them to immediately contact police if they suspect an intruder is in their home.

Citizen’s arrest

Although there are significant differences, laws in each Australian state and territory broadly empower members of the community to make a citizen’s arrest where they find someone committing a crime.

Consequently, a person who apprehends an intruder unlawfully inside their house could arrest the wrongdoer and deliver them to police. As a general rule, a person may use “reasonable force” which is not disproportionate to – or unnecessary for – the purpose of the arrest.

But if the offender resists, complex issues may arise as to how much force can lawfully be used.

Determining how far a person can lawfully go in protecting themselves in a home invasion requires consideration of complex legal issues. It also involves broad matters of social policy.

By requiring that a person acting in self-defence or effecting a citizen’s arrest must act genuinely and reasonably, Australian states and territories have developed a distinctive approach that appropriately balances self-defence against vigilantism.

Marilyn McMahon, Associate Professor in Law, Deakin University

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

 

The Case of the Falling Fat Man

by Tim Harding B.Sc., B.A.

Is it justified to kill an innocent threat in defence of oneself or others?

An ‘Innocent Threat’ is a person who poses an imminent threat your life, but who is not the originating cause of that threat, as in the ‘Falling Fat Man’ case hypothesised by Thomson (see below).  Some philosophers such Thomson argue that it is morally permissible to kill an Innocent Threat in self-defence (Thomson, 1991); whilst other philosophers such as Otsuka argue that it is not permissible (Otsuka, 1994).  In this essay, I intend to argue that it is justified to kill an innocent threat in defence of oneself or others, but on different grounds to those used by Thomson.  My grounds are (1) the traditional conditions for justification of self-defence; (2) the Doctrine of Double Effect (which is rejected by Thomson within this context); and (3) utilitarianism, in cases of defending more than one person.

In her 1991 paper on ‘Self-Defense’, Thomson provides three hypothetical cases in which she thinks it is morally permissible for you to kill a person in self-defence (‘Yes cases’); and three cases in which she thinks it is not permissible (‘No cases’).  These cases are:

Yes cases	No cases
Villainous Aggressor Innocent Aggressor Innocent Threat	Substitution-of-a-Bystander Use-of-a-Bystander Riding-Roughshod-over-a-Bystander

A Villainous Aggressor intends to kill you, as in the case of a truck driver deliberately trying to run you over; whereas an Innocent Aggressor is not to blame for his aggression (for example, if he or she is insane).

An Innocent Threat does not intend to kill you, but will nevertheless do so unless you kill him or her.  For example, in Thomson’s Falling Fat Man case, you are lying in the sun on the balcony of your apartment and a fat man pushed by another person is falling towards you.  The only way you can prevent him falling on you and killing you is by moving an awning, which will deflect his fall on to the road below, where he will die.  If you do not deflect his fall in this way, your body will cushion his fall and he will live (but you will die).  The important point is that not only is the Falling Fat Man innocent, but he is not the cause of his fall towards you (Thomson, 1991:287).

Thomson argues that there is no moral difference between the three ‘Yes cases’ – in each case the threat will kill you if you do not kill him or her.  She says that, other things being equal, every person Y has a right against X that X not kill Y.  In summary, she concludes that the threats in the ‘Yes cases’ will violate your rights that they not kill you, and therefore they lack rights that you not kill them (Thomson, 1991:300-305).

In contrast, bystanders are not threats – they are not causally involved in the imminent threat to your life.  Thomson concludes that bystanders do have rights not to be killed and therefore may not be killed in self-defence against a threat not caused by the bystander (Thomson 1991: 298-299).

On the other hand, in his 1994 paper Otsuka argues that there is no moral difference between an Innocent Threat and a bystander.  He thinks that it is never justified to kill innocents in self-defence.  It is morally impermissible to kill a bystander and therefore it is also impermissible to kill an Innocent Threat.[1]

The implication of Otsuka’s theory that you are morally obliged to lie back and let the Fat Man fall on you is counter-intuitive and likely to be rejected by most people.  Appeals to intuition and public opinion are, of course, not philosophical arguments, but I think they can sometimes act as a ‘reality check’ to indicate that there might be something inadequate with a moral theory like Otsuka’s; and that alternative approaches need to be considered.

For a start, Otsuka’s theory conflicts with the Hobbesian account of self-defence that if one will die unless one does X, then one has a right to do X.  However, this right needs to be limited in some way.

The traditional conditions for justification of self-defence are that (a) the threat must be imminent; (b) the defensive violence must be necessary; and (c) the force used must be proportionate to the threat.  I would argue that conditions (a) and (b) are an intrinsic component of the ‘Falling Fat Man’ case.  The proportionality condition (c) is demonstrated in DDE criterion (1) below.

The Doctrine of Double Effect (DDE) states that we may do what will cause a bad outcome in order to cause a good outcome if and only if (1) the good is in appropriate proportion to the bad and (2) we do not intend the bad outcome as our means to the good outcome (Thomson, 1991:292).  For example, it is morally permissible to give a terminally ill cancer patient enough morphine to relieve excruciating pain even if we know that this dose will kill the patient.  Thomson rejects the application of the DDE to the cases under discussion on the grounds that a person’s intentions are morally irrelevant (Thomson, 1991:293-296).

My view is that intentions are relevant to the morality of killing in general and to the killing of Innocent Threats in particular.  For example, in general terms, the essential moral difference (leaving aside the legal difference) between a murder and a manslaughter charge is one of intent.  All other facts of the case may be identical.

I think that Innocent Threats meet the criteria for the application of the DDE, as follows:

(1)  the good is in appropriate proportion to the bad because either you will be killed or the Innocent Threat will be killed.  Either way, one person will die; and

(2)  your intent in defending yourself from an Innocent Threat (for example, by shielding yourself from the Falling Fat Man) is merely to save your own life.  The death of the Falling Fat Man is an unavoidable consequence of the necessary action you take to save your life, rather than the purpose of your action.

The DDE can also apply to the defence of others – the above criteria could also be met in such cases.  In cases where more than one person is being defended, the good may even outweigh the bad.

Utilitarianism is of little assistance in the Falling Fat Man case.  Both you and the fat man are likely to have a preference to live.  Either way, one person will die.  The life of one of you may be more valuable to the community than the other and therefore have better consequences from being saved, but that is an assessment you are unable to make when a fat man is about to fall on you!  However, in other cases Utilitarianism may be relevant to the defence of more than one other person, on the grounds that saving more than one life would be a better consequence than saving only one life.

In conclusion, I think it is justified to kill an Innocent Threat in defence of oneself or others on the grounds of the traditional conditions for self-defence; the Doctrine of Double Effect; and utilitarianism in cases of defending more than one person.

 References

 Otsuka, M. (1994) ‘Killing the Innocent in Self-Defense’ Philosophy and Public Affairs, Vol. 23, No. 1 (Winter, 1994), pp. 74-94.

Thomson, J. (1991) ‘Self-Defense’ Philosophy and Public Affairs, Vol. 20, No. 4 (Autumn, 1991), pp. 283-310.

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[1] Otsuka also argues that it is morally impermissible to kill an Innocent Aggressor, but that issue is outside the scope of this essay topic.

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