Can I Forcefully Defend My Property?
The simple answer is yes. Utah, at least on paper, holds property rights in the highest esteem. In this Utah is consistent in upholding the traditional common law rights of life, liberty, and property.
How May One Defend Property?
Under Utah law, a person may forcefully defend his property if force is necessary to prevent one’s criminal interference with real or personal property. Real property is land and the buildings and fixtures attached to it. Personal property is anything that is tangible and mobile. Utah recognizes the right to defend both types of property, whether that is your office building or your bicycle, your farm lot or your coin collection.
The exception to this rule, however, is that you cannot use deadly force to defend property. This is consistent with the fact that life is more important than property.
Prerequisites to Defending Property By Force
In order for the defense of property affirmative defense to apply in a case, one or more of the following three factors must apply.
First, the property being defended must lawfully be in the possession of the property. Thus, it would not apply to stolen property or the property of third persons, subject to the second and third prerequisites.
Second, the property must be in lawful possession of a member’s of the defendant’s family. So, you can defend your spouse’s and your kids’ property; and,
Third, the defendant must have had a legal duty to protect the property. Employees, trustees, and others who have fiduciary duties can protect the property with which they are entrusted through the use of force.
The Judge Decides Whether It Applies
Whether defense of property applies in a particular case is up to the trial judge, but the judge’s decision to exclude a jury instruction on defense of property is an appealable issue.
If you believe you have a defense of property claim in your case, talk to one of our criminal defense lawyers to discuss the issue.