One of the areas that I teach in torts is the use and limits of the privilege of self-defense and defense of property. We recently discussed in Illinois case involving the use of a spring gun in a case of defending property. Now in New York, postal worker Troy George has been charged with murder, manslaughter and weapons possession after he chased down an alleged burglar and killed him with a pipe.
As we previously discussed, the common law has long barred the use of lethal force to protect property. Moreover, even when defending oneself or others, you do not have to retreat but you cannot retaliate. That often means that a pursuit will be viewed as outside of the privilege.
In this case, George, 54, confronted someone who he said was prowling around his backyard. The man fled and George gave chase with a pipe. The evidence against George includes a neighbor who reported that his wife yelled “Oh my husband. He’s getting ready to kill him. He’s getting ready to kill him.”
The charges reject the notion of a “hot pursuit” in a case of self-defense or defense of property. Many states now have “Castle doctrine” laws, which allows citizens to use lethal force in defense of their homes. I have been a critic of Castle Doctrine laws, which have produced second-generation laws extending the privilege to the work place, cars, and other locations. Called “Make My Day” laws in some states, we now have “Make My Day Better” laws allowing people to use lethal force in defense of other property like cars as well as laws like “Stand Your Ground” involved in the Zimmerman case and other cases in Florida.
New York’s self-defense provisions includes a type of Castle Doctrine is more qualified and includes a duty of a citizen to retreat if possible. However, if the encounter occurs within the home, lethal force may be used so long as the resident did not instigate the conflict. The relevant section states:
2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is: (i) in his or her dwelling and not the initial aggressor; or (ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter`s direction, acting pursuant to section 35.30; or
(b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or
(c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.