DEFENSE OF PROPERTY -
JUSTIFIABLE USE OF NONDEADLY FORCE
A person is justified in using force in preventing or attempting to prevent a trespass or other unlawful interference with real or personal property in his/her lawful possession. Defense of property is a defense although the danger to the property defended may not have been real, if a reasonable person, in the circumstances and from the viewpoint of the defendant, would reasonably have believed the danger of interference to be imminent. The amount of force used may not exceed that amount of force a reasonable person, in the circumstances and from the viewpoint of the defendant, would have used to prevent the trespass or unlawful interference.
Statutory Authority: 21 O.S. 1991, § 643(3).
It has been pointed out that criminal cases wherein the defense of protection of property has been relied upon to exculpate a defendant ordinarily involve concomitant exculpatory claims, such as self-defense or defense of habitation.
[H]ence property protection is usually overshadowed by some other defense. In fact, the chief importance of the privilege of protecting property is frequently that its proper exercise does not make one an "aggressor" or in any way at fault, and this leaves all other privileges unimpaired.
R. Perkins, Criminal Law 1026 (2d ed. 1969). This observation is borne out in the Oklahoma cases. See, e.g., Johnson v. State, 59 Okl. Cr. 283, 58 P.2d 156 (1936) (defense of habitation); Thomason v. State, 17 Okl. Cr. 666, 191 P. 1096 (1920) (self-defense); Dickinson v. State, 3 Okl. Cr. 151, 104 P.2d 923 (1909) (self-defense).
It is clear from the holdings of the Court of Criminal Appeals that, even though there may be a wrongful trespass, a property owner may not transcend reasonableness in the use of force to terminate the wrongful intrusion, and "reasonableness" in this context encompasses that force deemed necessary to defend the property trespassed upon, other than the taking or endangering of human life. Buchanan v. State, 25 Okl. Cr. 198, 219 P. 420 (1923); Garrison v. State, 19 Okl. Cr. 3, 197 P. 517 (1921); Thomason, supra; Dickinson, supra.
The Commission has found no cases, however, wherein the court approved the use of deadly force to prevent a felonious trespass or wrongful interference with property, which did not occur in a dwelling house and did not involve a claim of self-defense or defense of another. In Hendrick v. State, 63 Okl. Cr. 100, 73 P.2d 184 (1937), a case wherein a claim of defense of another was raised in addition to a claim of defense of property, the court rejected both claims, and stated:
The right to defend property against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony, to the extent of slaying the aggressor, does not include the right to defend it, to the same extent, where there is no intention to commit a felony. A man may use force to defend his real or personal property in his actual possession against one who endeavors to dispossess him without right, taking care that the force used does not exceed what reasonably appears to be necessary for the purpose of defense and prevention. But, in the absence of an attempt to commit a felony, he cannot defend his property, except his habitation, to the extent of killing the aggressor, for the purpose of preventing a trespass, and if he should do so, he would be guilty of a felonious homicide. Life is too valuable to be sacrificed solely for the protection of property. Rather than slay the aggressor to prevent a mere trespass, when no felony is attempted, he should yield, and appeal to the courts for redress. Ordinarily the killing allowed in the defense of property is solely for the prevention of a felony.
The law affords ample redress for trespasses committed on a man's land, but does not sanction the taking of life to prevent it. The owner may, no doubt, oppose force with force to protect his property from injury or destruction, but not to the extent of taking life, or in excess of the necessity of the case. When he carries resistance to excess and uses more force than is reasonably necessary, he becomes a wrongdoer.
Id. at 108, 73 P.2d at 189-90.
Section 643(3) does not permit a person to use force in order to retrieve property which is taken by a police officer pursuant to a search and seizure which is allegedly unlawful. VanKaler v. State, 496 P.2d 807 (Okl. Cr. 1972).
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