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Use of Deadly Force on Person Committing Felony on Property Must Be Justifiable

12/25/05

Dear Mr. Duman:

To what extent may a property owner use “deadly” force against an intruder committing felonies on his property?

J. R., Granada

Dear J. R.:

According to the provisions of California Civil Code, Section 847, an owner of real property "shall not be liable” to any person who, is injured or killed during or after that person’s commission of certain felonies listed in the statute, including burglary, assault attempted murder, rape, robbery and kidnaping. However, this code section “does not limit the liability of an owner ... which otherwise exists for willful, wanton or criminal conduct”.

Over the years, this statute has been applied most commonly in situations, where a felon’s injury or death resulted from some type of dangerous, negligent (inadvertent) conduct or condition at the property attributable to the owner, including injuries or deaths inadvertently caused, while the owner was protecting property against the commission of one of the enumerated felonies.

Applicable case law addressing this issue in recent years has held that the protections under this law may include a property owner’s intentional injurious acts committed against violent felons, which are justifiable under the circumstances.

This conclusion was reached in the 1998 California Superior Court case, Calvillo-Silva v. Home Grocery (1998) 19 Cal4th 714, 80 Cal Rptr 2d 506, when the court found that a store owner, who intentionally shot at, and paralyzed, a fleeing robber may, depending on the actual facts, be eligible for protection under this law. However, the Calvillo-Silva case also established the need to scrutinize whether the owner’s conduct was justifiable on a case-by-case basis, thereby stopping short of granting property owners a license to freely and intentionally harm or kill intruders, when the circumstances do not merit such actions.

In other words, individuals, whose actions cause injuries to those who are committing the enumerated felonies, which are deemed not to be justifiable, can be held civilly liable for their injurious conduct.

Our readers having questions about real property owner’s rights and liabilities regarding the use of “deadly” force should consult with their own lawyers for specific attention.

FD777 12/16/05
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Readers may address their questions to The Real Estate Lawyer, Fred M. Duman, 2807 Castro Valley Boulevard, Castro Valley, California 94546. Mr. Duman will answer those of general interest in his column. He reserves the right to edit the letter for brevity and clarity.

Each real estate problem usually has its own distinct circumstances, and frequently is more complicated than realized by a layperson. Readers are also encouraged to consult with their own lawyers to obtain guidance concerning their problems when they first arise.

Readers are cautioned that these answers are not intended to be the basis for any action or reliance by the reader.
You are welcome to visit our web site at “www.dumanlaw.com”.