If someone breaks into your home, are you justified in shooting an intruder? Attorney Ben Schwartz explains the meaning of justification under Delaware law.

TRANSCRIPT:

Hi, I’m Attorney Ben Schwartz.

Today, I’m going to answer a viewer question from Greg in Milford, Delaware. Greg writes in and says, “What does Delaware law say about shooting an intruder?”
The law concerning shooting a home intruder is called Justification. If you look in Title XI in the Delaware code, you will find a number of laws on Justification. There’s one that applies to this specific situation. Let’s suppose you are in your own home. Someone breaks in and threatens you; you end up shooting them.

Title XI of the Delaware code section 469 says: In the prosecution of an occupant of a dwelling charged with killing or injuring an intruder who is unlawfully in said dwelling it shall be a defense that the occupant was in the occupant’s own dwelling at the time of the offense and won the encounter between the occupant and intruder was sudden and unexpected compelling the occupant to act instantly.  Or 2, the occupant reasonably believed that the intruder would inflict personal injury upon the occupant or others in the dwelling.  Or 3, the occupant demanded that the intruder disarm or surrender and the intruder refused to do so.

If you’re in your own home, apartment, etc. and someone comes in illegally (keep in mind, they need to be there unlawfully for this law to apply), the law calls this a Sudden Encounter. A person bursts in and you can see they have a gun (this act was sudden and unexpected) which may compel you to act instantly. You may reasonably believe that the intruder is going to inflict personal injury on you or others who are in your dwelling. You may demand the intruder disarm (meaning you demand that the burglar put down his gun and surrender and he refuses to do so). Under Delaware law, you would be justified in using force against the intruder. You would be justified in shooting this intruder.

However, I want to point out that the Statute (§ 469) starts out with the words, “In the prosecution of an occupant of a dwelling charged with killing or injuring an intruder…”  The Justification Law comes into effect when you (as the homeowner) have been charged with murder because you have been charged with shooting an intruder. You may have been charged with second-degree assault because you shot that intruder. This is your defense to the criminal prosecution against you. No lawyer can stop the state of Delaware from bringing criminal charges against you.

I can’t give you legal advice on this matter. I can’t tell you what you can or can’t do in your own home. What I can tell you is that if someone breaks into your home and you shoot them using deadly force, you may find that you are arrested for murder. You might get arrested for assault. You may be arrested on weapons charges as well if you didn’t legally possess the weapons you fired. This law may be a defense to that, but it doesn’t mean you’re not going to get arrested or charged. That’s the most important thing to know.

I can’t advise you on how to kill somebody. I can’t advise you on how to go about shooting someone. I can only tell you if you are arrested because of a situation like the one we are discussing, then this law may help you out.

Remember, shooting a home intruder…

  • doesn’t mean you won’t get arrested.
  • doesn’t mean your family won’t come up with $100,000 to post your bond.
  • doesn’t mean that you’re not going to be in prison because your family can’t come up with $100,000 to post your bond.
  • doesn’t mean you won’t need to hire an attorney and spend an outrageous sum of money defending yourself.
  • doesn’t mean that you’re going to be free.
  • doesn’t mean you’re going to avoid losing standing and reputation in your community.

It just means this is the law.
If you are watching this video, you can take a firearms training course, get a concealed carry permit, learn basic self-defense and think through what you are going to do in the event someone breaks into your home. You can train for this unfortunate event. In fact, this is something you should be training for.

This is not something that you should deal with in retrospect. When I handle a criminal defense case, everything is in retrospect. Everything has already happened, and lawyers come along to apply the law to the facts. If you are thinking about what you would do in this event, what you can do is to get control of your own situation before something like this happens. That way, you can make sure that you do the right thing for yourself and your family.

I’m Attorney Ben Schwartz. Thanks for watching!