The man who fatally shot 13-year-old Karon Blake shortly before 4 a.m. reportedly believed someone was breaking into cars and shot Blake to defend those vehicles from theft. Is the shooter likely to be able to claim defense of those cars as a justification for the shooting?
This doesn’t seem like a close call.
Law students learn in their first year that a person is never privileged to use deadly force to defend only property. The case is Katko v. Briney, a 1971 case that reads like a 1917 case.
In Katko, the plaintiff, Marvin Katko, had part of his leg blown off by a shotgun that the defendants, Edward and Bertha Briney, had rigged to a bed frame in their abandoned farmhouse—not their occupied home where they slept. The purpose of the Looney Tunes-style trap was solely to protect the premises from intruders. Katko and a buddy came along and removed a board from the porch window to enter the farmhouse to steal bottles and fruit jars. While inside, looking for (of all things) bottles and fruit jars to steal, Katko tripped the wire when he pulled on the bedroom door.
Katko, the thief, had the chutzpah to turn around and sue Edward and Bertha Briney, the property owners. He obtained a jury verdict of $30,000 in 1970s dollars. In order to pay the judgment, the Brineys had to auction off eighty acres of their farmland. To pay the criminal who broke into their property.
The case is popular in a first-year law school class called “torts.” Torts are civil wrongs, like negligence, or defective products, that cause people harm and are usually compensable by money—basically, lawsuits. The Katko case is not taught in classes like criminal law or criminal procedure. But torts are often similar in spirit to our criminal statutes. If using a shotgun trap to protect your property opens you up to a civil lawsuit, it probably also opens you up to criminal charges.
So the general rule in the United States has historically been some version of: you can use some (nondeadly) force to expel someone from your property. That’s the rule the D.C. courts have applied in civil cases. In criminal cases, the jury instructions provide a good summary of the District’s law of defense of property.
The Karon Blake shooting appears to be a situation where the shooter was defending property—vehicles that supposedly were being broken into by Blake and others. In D.C., according to the instructions given to juries in criminal cases, the defense of property can justify using force, but it’s more limited than self-defense. D.C. has different rules for the defense of land, and for defense of personal property. Generally, in D.C., a person may not use deadly force to protect only real or personal property, but there are exceptions.
In D.C., a person is justified in using “reasonable” force to protect his land from trespassers when he (1) reasonably believes that someone is about to trespass on his property immediately and (2) the use of force is necessary to prevent the trespass.
The only time a person may use deadly force to protect his home is if he has a reasonable belief that an intruder is entering his home with the intent to commit a felony or to do serious bodily harm to any of the occupants.
But the Blake shooting does not appear to be a defense of home situation. Apparently, Blake was shot on the street, where cars were parked. The rules are different in D.C. for using force to defend personal property.
A person is justified in using reasonable force to protect his property from theft when he reasonably believes that the theft is imminent and that force is necessary to stop it. Similarly, if a person reasonably believes that someone has already stolen his property, he may use reasonable, nondeadly force to get it back.
The D.C. jury instructions caution that the defense of personal property is not available where deadly force has been used. It’s only possible where the defendant used nondeadly, reasonable force to defend their property.
Bottom line: If it’s true that the shooter was only seeking to defend cars on the street from being broken into when he shot Blake, then self-defense and defense of property will probably not be available. But things change dramatically if Blake is alleged to have presented any threat to the shooter. The differences between using force to defend property and using force to defend a person are dramatic.
According to the criminal jury instructions for the District of Columbia, a person has the right to use a reasonable amount of force in self-defense if (1) he actually believes he is in imminent danger of bodily harm and (2) he has reasonable grounds for that belief. If the shooter alleges Blake threatened him during the break-ins, then that shifts this case from a defense of property, to a self-defense case.
A shooter who has used deadly force has a strong incentive to say the victim made a move in his direction to convert an unjustifiable defense of property to a justifiable defense of self. In all likelihood, we’ll see the shooter allege that Blake posed some threat to him, and not just the cars.
Danny Cevallos is a legal analyst for NBC and MSNBC and co-founder of the law firm Cevallos & Wong, LLP. He focuses his practice in the areas of state, federal, and territorial criminal defense and civil litigation.