§ 20.03 Defense of Habitation
[A] Rationale of the Defense
If jurists have treated the use of force in defense of property with considerable caution, they have always treated the related interest of safe and private habitation of one's home with reverence. The reason for the difference in attitude—as with the rule permitting people to kill in self-defense rather than to retreat from their home—is that the home represents the person's "castle." As with a castle, the home is a dweller's fortress, "as well for his defence against injury and violence, as for his repose."11 The house serves as a sanctuary from external attack, "for where shall a man be safe if it be not in his house?"12
The home is also a source of privacy where the most intimate activities in life are conducted, and from which people seek to exclude the prying eyes and ears of strangers and of the government. The Supreme Court has observed:
The [Constitution] protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home—a zone that finds its roots in clear and specific constitutional terms: "The right of the people to be secure in their . . . houses . . . shall not be violated."13
Although this quotation concerns a person's right to be free from unreasonable intrusions by the government, the constitutional right is itself based on the pre-constitutional common law reverence for the home as a place of security.
When a wrongdoer seeks to enter another person's dwelling, therefore, more than property is invaded. In common law terms, the fortress has been attacked; a person's primary source of safe and private habitation has been jeopardized.
[B] Rules Regarding Use of Deadly Force
A person may use deadly force to defend his home. The scope of this privilege has changed over time, and no single rule universally applies today.14 Three general approaches will be noted.
[1] Early Common Law Rule
The broadest right to use deadly force is found in the original common law principle that a home-dweller could justifiably use deadly force upon another person if he reasonably believed that such force was necessary to prevent an imminent and unlawful15 entry of his dwelling.16
A careful look at the elements of this version of the defense demonstrates its wide scope. The right to use deadly force under this approach is triggered by the immediacy of the unlawful entry. The unlawful purpose of the intruder, and the degree to which he constitutes a threat to the physical safety of the occupants, is immaterial. For example, under this approach D could kill V, an apparent intruder, whether V was an armed burglar intending to kill him or to steal his property, an unarmed intruder seeking to dispossess him of his property, or even an unarmed and intoxicated neighbor mistakenly entering what he thinks is his own home.17 Indeed, pursuant to this rule, the right to kill apparently exists even if D knows that V is his intoxicated neighbor, as long as D reasonably believes that deadly force is the only way to prevent entry.
[2] "Middle" Approach
A less broad approach to the defense of habitation provides that a person may only use deadly force if he reasonably believes that: (1) the other person intends an unlawful and imminent entry of the dwelling; (2) the intruder intends to injure him or another occupant, or to commit a felony therein; and (3) deadly force is necessary to repel the intrusion.18
This rule is narrower than the original common law defense. Under this formulation, for example, D may not justifiably shoot V if he knows or should know that the intruder is D's intoxicated neighbor mistakenly attempting to enter his own house. Under such circumstances, V (presumably) does not represent a threat to...
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