Volume 1999    Issue 1

Castles and Carjackers: Proportionality and the Use of Deadly Force in Defense of Dwellings and Vehicles

Stuart P. Green^*

This article, prompted by the recent proliferation of "Shoot the Burglar," "Make My Day," and "Shoot the Carjacker" laws, offers a detailed analysis of the defense of premises doctrine--under which a defender is privileged to use deadly force against an intruder even when the defender has not been threatened with death or serious bodily injury. Professor Stuart Green asks whether and how the use of deadly force in defense of premises can be reconciled with the traditional requirement in self-defense law that the defender's response be "proportional" to the threat posed. Five possible arguments are considered. First, a deadly threat should be presumed whenever an intruder unlawfully attempts to enter a defender's dwelling. Second, defenders are more vulnerable in the home than elsewhere. Third, defenders have a specially privileged property interest in the home. Fourth, an intrusion into a defender's premises involves a threat to privacy, dignity, and honor analogous to the threat present in crimes such as rape and kidnapping. Fifth, the use of deadly force in defense of premises is justified as a means of deterring unjustified aggression and punishing criminal behavior. Professor Green argues that none of these principles, standing by itself, is sufficient to sustain the defense of premises doctrine--premised as they are on unsupported empirical assumptions about the danger posed by intrusions into the home, an improper conflation of the rules of proportionality and necessity, troubling comparisons between the value of human life and the value of property, and other errors. Professor Green concludes, however, that the requirement of proportionality might nevertheless be satisfied by an aggregation of such interests.

* Assistant Professor of Law, Louisiana State University. B.A. 1983, Tufts University; J.D. 1988, Yale Law School. My thanks to Paul Baier, Paul Robinson, and Lloyd Weinreb for their comments on an earlier draft of this article. Thanks also to my colleagues at LSU who participated in a round-table presentation of some of the issues dealt with here, and to Layna Cook and Sean Donlan for their research assistance.