Don't 'Make My Day'

Why allow homeowners to use deadly force in situations that do not satisfy the traditional requirement of proportionality? The question however, is exactly when this presumption of danger should be triggered, and in what form.

This week, the Knesset Constitution, Law and Justice Committee was considering two alternative bills inspired by the case of Shai Dromi, the Negev sheep farmer who in January 2007 shot two trespassing Bedouin sheep thieves, killing one and wounding the other. Although there are some significant differences between the bills, both would make it more difficult to prosecute people who use deadly force to defend their homes from intruders. Because the issues now being considered in the Knesset are similar to those that have been dealt with in recent years in the United States, in connection with the enactment of so-called "Shoot First" and "Make My Day" statutes, it may be helpful to consider the American experience with such legislation.

Under the rule of self-defense that has traditionally applied in both Jewish and Anglo-American law, a person is justified in using deadly force against an aggressor only if such force is necessary to protect oneself (or another) from an imminent threat to life or basic bodily integrity. Two particular elements of this rule need to be highlighted. The first is that deadly force should be used only when, and to the extent, "necessary," and not when the threat is not imminent or if some nondeadly force would be sufficient to repel it. The second is that the force used must satisfy the requirement of proportionality - that is, it must not be excessive in relation to the harm threatened. Thus, under the traditional law of justified homicide, deadly force is never permitted for the defense of mere property.

This basic rule of self-defense is often supplemented with specialized laws that allow defenders who are present in their own homes to use deadly force to resist invasions even when there is no explicit threat to life or limb.

Why allow homeowners to use deadly force in situations that do not satisfy the traditional requirement of proportionality? The answer, offered by authorities as diverse as Maimonides and then-judge (later U.S. Supreme Court justice) Benjamin Cardozo, is that, at least in certain circumstances, it is reasonable to presume that a person whose home is being invaded by an intruder is likely to be threatened with death or serious physical injury.

The question that goes to the heart of the current debate, however, is exactly when this presumption of danger should be triggered, and in what form. Should the presumption exist whenever an intruder makes an unlawful entry into a homeowner's dwelling, "even if," in the description of the bill introduced by several different Knesset members, as released by the Knesset Constitution, Law and Justice Committee, the homeowner "wasn't exposed to real danger, and even if his response was not reasonable or necessary in relation to the circumstances"? Or should the presumption exist only when there is good reason to believe that the intruder is actually dangerous, such as when the intruder is committing a forcible or violent felony?

The fact is that the vast majority of burglars are unarmed. Studies show that burglars almost invariably want to "get in and out" without making human contact. Of the approximately six million burglaries that occur each year in the United States, for example, fewer than 200 (or less than one in 30,000) result in a murder.

Of course, it goes without saying that one would not want to be, and should never have to be, one of those 200. But the solution is not simply to grant homeowners unconstrained discretion to shoot at will. To do that would be to encourage violent and aggressive behavior even when it is clearly unnecessary.

Consider, for example, the case of Jason Rosenbloom of Clearwater, Florida. Unarmed, wearing a T-shirt and shorts, he knocked on the door of his neighbor, Kenneth Allen, in 2006, after Allen lodged a complaint with local authorities about the fact that Rosenbloom had put out eight bags of garbage though local ordinances allow only six.

Allen opened the door and the men exchanged heated words. Allen claims that Rosenbloom then put his foot in the door, a fact Rosenbloom denies. What is not in dispute is that Allen fired a gun at Rosenbloom from close range, once in the stomach and once in the chest, wounding him seriously.

Florida prosecutors, deferring to Florida's permissive defense of premises law, declined to bring any charges against Allen. Under the Knesset proposal, homeowners like Allen would be similarly relieved of liability. Is this really the model that Israel should want to follow?

The better solution is to allow homeowners to use deadly force in defense of their dwelling only when there is reason to believe that the intruder is dangerous - as, for example, where the intruder is armed, or is committing or attempting to commit a violent felony in or around the home. Such an approach would respect the sanctity of life and discourage vigilantism. It would also be consistent with centuries of Jewish and Anglo-American law.

Stuart P. Green, a professor of law at Louisiana State University, is the author of "Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime."