Use of Deadly Force Inside Dwelling Where Intruder Is Unlawfully in the Dwelling. (First of a Multi-part Series)
It’s 5:00 A.M. Something has awoken you from your last vestiges of sleep. As your spouse grips your arm, you both hear a bump in the semi-darkness followed by the sound of broken glass.
“I think somebody’s in the house!” The whisper might as well have been a yell in your mind.
You grab your handgun from its locked container and retrieve the magazine, which is always kept in a separate container, and load your weapon.
As you move toward your bedroom door your wife, who also happens to be eight months pregnant, climbs from the bed. She stands behind you while firmly clutching the back of your shirt.
You move into the hallway and see a person who appears to be holding what looks like biggest knife you ever seen!
You immediately, and smartly, retreat by ushering your pregnant wife back into the second floor bedroom which you both just exited. You push the door closed and step back from it.
The next sound you hear is that same bedroom door being pushed open in at which point you observe the individual standing feet away from you and your pregnant wife
Your heart is beating faster than it has ever beaten before. Your wife’s scream fills your ears!
All your eyes see is one large knife at which point you ….
In general terms Massachusetts law provides There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.
Admittedly, and for the primary purposes of this segment, certain facts have been excluded. This is because you need to know, well before 5 AM in the morning, when this “someday” rolls around, what you are going to do in a particular situation.
Massachusetts general law Chapter 278 Section 8A. Provides that: In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.
Translation: You may very well be prosecuted – or at least face significant scrutiny of your actions by the authorities . But if you were defending yourself, or another person who is lawfully there with you, against a threat of bodily harm or death from one who is not lawfully in your home, you do not need to retreat and if you used reasonable means, it is a defense.
General Laws c. 278, § 8A, inserted by St. 1981, c. 696, reads as follows: “In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.”
At common law, “the right to use deadly force by way of self-defense [was] not available to one threatened until he [had] availed himself of all reasonable and proper means” to avoid combat before resorting to the use of deadly force. Commonwealth v. Shaffer, 367 Mass. 508, 511 (1975) (declining to adopt majority rule that one assaulted in own home need not retreat before resorting to use of deadly force). See Commonwealth v. Reed, 427 Mass. 100, 102 (1998); Commonwealth v. Epsom, 399 Mass. 254, 258 (1987); Commonwealth v. Harrington, 379 Mass. 446, 450 (1980).
Translation: The old common law required one to retreat and use all reasonable means to avoid the fight – even in one’s own home – before resorting to the use of deadly force.
The enactment of G.L.c. 278, § 8A, modified the common law by justifying the use of deadly force by a person in his own home to respond to an assault threatening death or great bodily harm by someone unlawfully in the home, even though the person had a reasonable means of retreat or escape. See Commonwealth v. Noble, 429 Mass. 44, 49 (1999); Commonwealth v. Cyr, 425 Mass. 89, 98 (1997), S.C., 433 Mass. 617 (2001);Commonwealth v. Dunn, 43 Mass. App. Ct. 58, 64 (1997); Commonwealth v.Gregory, 17 Mass. App. Ct. 651, 652-653 (1984). It is generally for the jury to determine whether the victim in a particular case was, in fact, unlawfully present in a dwelling, and the judge may instruct on the law of trespass to assist the jury in this determination. See Commonwealth v. Noble, supra. Commonwealth v. Peloquin, 437 Mass. 204, 207-08 (Mass. 2002)
Translation: The enactment of the statute no longer requires one to retreat in defense of himself or others lawfully in his or her own home, prior to using deadly force, when facing an imminent threat of serious injury or death from one who is unlawfully in the home.
Among the best protection for your Second Amendment rights is to be a knowledgeable and responsible gun owner.
What is your plan when you hear the breaking glass at 5 o’clock in the morning?
You need to know what you’re going to do before you hear that breaking glass.