CORE CRIMINAL LAW SUBJECTS: Defenses: Defense of Property

2013 (September Term)

United States v. Davis, 73 M.J. 268 (RCM 916(a) suggests that the terms “special defense” and “affirmative defense” are interchangeable; however, it is more accurate to refer to defense of property as a “special defense,” and that the prosecution continuously bears the burden of proving beyond a reasonable doubt that the defense did not exist). 

(under the defense of property theory in the context of an imminent threat to the property, the accused must have had a reasonable belief that his real or personal property was in immediate danger of trespass or theft; and the accused must have actually believed that the force used was necessary to prevent a trespass or theft of his real or personal property; the accused’s subjective belief that the force was necessary must also be reasonable; in determining the reasonableness of the accused’s subjective belief as to the amount of force necessary, a panel must look at the situation through the eyes of the accused and consider the circumstances known to the accused at the time). 

(under the defense of property theory in the context of preventing a trespass or ejecting a trespasser from the property, the accused may only use as much force as is reasonably necessary to remove an individual from his property after requesting that the individual leave and then allowing a reasonable amount of time for the individual to leave; a person or invitee who refuses to leave after being rightfully asked to do so becomes a trespasser and may not resist if only reasonable force is employed in ejecting him; however, a property owner may not purposely provoke a disturbance on his property and then use his ownership of the property as an excuse for an unnecessary assault in ejecting another person; if more force is used than is reasonably necessary to remove a trespasser, this force constitutes assault and battery).  

(although RCM 916 does not expressly list defense of property as a special defense, defense of property has long been recognized as an available defense in the military justice system; furthermore, RCM 916(a) states that defenses as used in the rule include any special defense which, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly or partially, criminal responsibility for those acts; defense of property is such a defense; additionally, the Military Judges’ Benchbook provides that a military judge must instruct, sua sponte, on defense of property when it has been raised by some evidence). 

(in this case, the military judge erred by not sua sponte providing instructions for both theories of defense of property where appellant’s testimony about the underlying events sufficiently put both theories of defense of property at issue; appellant’s testimony that he was worried about what would happen to his property if he got knocked out by an alleged trespasser was some evidence that members could have relied upon to find that appellant believed his property was in immediate danger; similarly, his testimony that he wanted that alleged trespasser to leave his property was some evidence that the members could have relied upon to find that appellant sought to use force to remove a trespasser from his property). 


United States v. Marbury, 56 MJ 12 (a servicemember has a legal right to eject a trespasser from his or her military bedroom and a legal right to protect his or her personal property; these rights are, however, not unlimited, and they must be exercised reasonably, meaning that reasonable force must be used).

(where the record showed that appellant could, but did not, call the military police to have the victim removed from her military quarters or arrested, this was some evidence from which the Court of Criminal Appeals and the members could find beyond a reasonable doubt that appellant’s immediate return to her military bedroom brandishing a knife for the purpose of ejecting her assailant was excessive or unreasonable force, hence unlawful conduct).

Home Page |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site