Mere “stealthy or surreptitious” entry is sufficient to justify deadly force
Last week Idaho’s Governor Butch Otter allowed a substantive change to the state’s self-defense law to take effect, albeit without his own signature, reports the Idaho Spokesman-Review and other sources. Although Senate Bill 1313 (embedded below) mostly just summarized in statute form Idaho’s already existing self-defense law, one provision, in particular, troubled the Governor enough that he withheld signing the bill.
That provision was the creation of a legal presumption in the context of the use of force in defense of highly defensible property, such as one’s home. Such legal presumptions are common among the states, but are found in various different forms—and Idaho’s is arguably unique in one particular facet.
The way these provisions work is to create a legal presumption that a defender possessed a reasonable fear of death or grave bodily harm when dealing with an intruder who is attempting to enter, or has actually entered, a highly defensible property.
In overview, a justified use of force requires five elements: innocence, imminence, proportionality, avoidance, and reasonableness. These are cumulative, meaning all must be present for the use of force to be justified unless one or more is legally waived.
Legal presumptions of reasonableness in the context of highly defensible property create a, well, legal presumption that three of these five elements are present—imminence, proportionality, and reasonableness. A related legal doctrine commonly referred to as the “Castle Doctrine” addresses a fourth element, avoidance. This effectively leaves in play, as a target for prosecutorial attack, only the element of innocence.
One way in which these legal presumptions vary among the states is in the conditions that must be met for the presumption to be triggered. In all cases, for example, the intruder must be present (or attempting to be present) unlawfully. In the large majority of states, it is also necessary that the entry being made in a forcible manner.
It is in the context of these required conditions that Idaho’s legal presumption in the context of highly defensible property differs from that of other states. While an unlawful entry made by force or in a “violent or tumultuous manner” is sufficient to trigger Idaho’s legal presumption, for forcible entry is not necessary—an unlawful entry that is made merely “surreptitiously or by stealth” is also sufficient to trigger these legal presumptions.
It is this “surreptitiously or by stealth” language that Governor Otter found objectionable, in particular, because he was concerned it could make lawful the killing of “children” under circumstances where such use of deadly force was unreasonable. As noted by the Idaho Spokesman-Review:
[Otter] said a juvenile who broke into an RV to steal a soda and was discovered by the RV’s owner could legally be shot to death under the bill. And he said rural teenagers who sneaked into a cornfield in the middle of the night could be legally killed under the bill, “simply because the teenagers used stealth to sneak onto the property and are unlawfully trespassing.”
So, one might wonder, why didn’t the Governor simply veto the bill? Because to do so would have been pointless given the overwhelming legislative support the bill enjoined: SB1313 passed the Idaho Senate on a 29-6 party line vote (every Republican voted in favor and every Democrat voted against), and the House by a vote of 57-12.
Another way in which such legal presumption provisions can vary among the states is in the definition of what qualifies as “highly defensible property” for purposes of the presumption. In all states with such laws one’s home, or habitation qualifies. Some, but not all, states define highly defensible property more broadly, however, to include places of business and occupied motor vehicles.
In passing SB1313 into law Idaho qualified all three such types of property—home, place of business, and occupied vehicle—as highly defensible property to which this legal presumption of reasonableness can apply.
Andrew F. Branca is an attorney whose practice Law of Self Defense LLC focuses on self-defense law. Download a FREE copy of his recent expert report: “When Sheepdogs With Fake Badges Make Poor Choices in Churches”DONATE
Donations tax deductible
to the full extent allowed by law.