Request By:
Mr. A. Jack May, Director
Division of Legal Services
Kentucky Department of Justice
Bureau of Training
Stratton 354
Eastern Kentucky University
Richmond, Kentucky 40475
Opinion
Opinion By: Steven L. Beshear, Attorney General; James H. Barr, Assistant Attorney General
This is in response to your recent letter in which you ask whether the protection of property statute, KRS 503.080(1), requires a contractual, bailor-bailee, agent or fiduciary relationship between parties before a person is justified in the use of force in the protection of the property of another.
The statute to which you refer states as follows:
KRS 503.080(1) "The use of physical force by a defendant upon another person is justified when the defendant believes that such force is immediately necessary to prevent:
(a) The commission of criminal trespassing or burglary in a dwelling, building or such real property in his possession or in the possession of another person for whose protection he acts; or
(b) Theft, criminal mischief or any trespassing taking of tangible, movable property in his possession or in the possession of another person for whose protection he acts. . . ."
This statute, rather than defining an offense as do most other sections of the penal code, creates a defense for a defendant accused of assault as the result of his actions in protecting his property or the property of one for whom he acts. Your specific question deals with the relationship between the accused and the owner or possessor of the property for which he acted to defend.
The justification for the assault that the accused is charged with as provided for in KRS 503.080(1) is a statutory codification of the common-law privilege allowing the use of reasonable force to protect property which privilege was recognized in Kentucky prior to the adoption of the Penal Code in 1974. The case law concerning this privilege deals with assaults committed by owners or other possessors (those who had legal possession of property but not title such as lessees or tenants) of property with the focus being on what type of acts they might commit with justification.
Shafer v. Commonwealth, Ky., 5 S.W.761 (1887);
Stacey v. Commonwealth, Ky., 225 S.W.37 (1920);
Turner v. Commonwealth, Ky., 101 S.W.2d 214 (1937);
Force v. Commonwealth, Ky., 163 S.W.2d 48 (1942);
Sheppard v. Commonwealth, Ky., 322 S.W.2d 115 (1959). No decision from Kentucky has been found where the issue of the defendant protecting another's property was raised. In
Curtis v. Hubbard, N.Y., 1 Hill 336, 40 Am. Dec. 292 (1841) aff'd 4 Hill 437 (1842), it was held that where an owner had a right to prevent a sheriff from entering a residence to take property pursuant to a civil execution, a guest of the owner (the owner not being in the house) may act to protect the owner's property.
It is our opinion that the language of KRS 503.080(1) permitting a person to use physical force to protect property in his possession or "in the possession of another person for whose protection he acts" allows a person other than the owner or possessor to use force in protection of property. "Possession" is defined as "having a thing in one's own power or control." Anderson, Cochran's Law Lexicon, Gilmer's Revision (1973). This definition includes actual possession as well as occupation. Such a definition of possession would include any person who occupied property or had possession of it under a claim of legal right. Thus, a contractual, bailor-bailee or fiduciary relationship would establish in the accused such a claim of legal right as to make the property "in his possession" as used in KRS 503.080(1). The addition of the term "in the possession of another person for whom he acts" after "in his possession" (which term embraces the relationship you ask about) would be such a clear redundancy that it would not have been included by the legislature if it had no application beyond the relationships of which you inquire. If the statute had read "in his ownership and in the possession of another person for whose protection he acts" the conclusion reached here might be different as there would be no redundancy created in interpreting the questioned language as applying only to contractual, bailor-bailee, and fiduciary relationships.
This conclusion finds support in the Commentary (1974) to this statute which, although unofficial in nature, is instructive for our purposes. The commentary to KRS 503.080 states,
"The justification that is provided by this section permits a defendant to extend protection not only to his own property but also to the property possessed by a member of his family or household and other persons for whose protection he acts. In this respect the provision expands pre-existing law." (emphasis added)
Our interpretation finds stronger support in the Comments to the 1958 Tentative Draft No. 8 of the Model Penal Code. Section 3.06 of the Code uses language similar to our statute and permits an individual to use force to protect property "in the possession or custody of the actor or of another person for whose protection he acts." The Comments to this section state:
Paragraph (1)(a) permits the actor to use force for the protection of property in the possession of another to the same extent as if it were in his own possession. The Reporter and Advisory Committee were disposed to limit the privilege to actors in possession or persons acting under the authority of persons in possession, with the limited extension in bracketed Paragraph (1)(c)(iii), the effect of which permits defense of property in the possession of a member of the actor's immediate family or household, property under his protection or property which he is "under a legal or socially recognized duty to protect" . This formulation was considered broad enough to allow the protection of public property, for example, and to permit a cautious approach to further extensions. The Council of the Institute perceived no adequate reason for limiting the privilege to protect property of others voting 16 to 5 in favor of the general extension. The question is submitted to the Institute."
Paragraph (1)(c)(iii) mentioned in the commentary stated as follows:
". . . property is in the possession of the actor as against a wrongdoer if it is in the possession of a member of his immediate family or household, or if the property is under his protection, or the circumstances are such that he is under a legal or socially recognized duty to protect it."
The Institute specifically declined to include this paragraph and thus did not limit the privilege to actors in possession or acting under authority of one in possession.
As stated earlier the common-law provision allowing a property defense to a charge of assault, as recognized by Kentucky, did not apply to persons other than owners or possessors. The expansion mentioned in the emphasized sentence of the above cited commentary to KRS 503.080 appears to be the legislature's means of giving the defense to persons other than owners or possessors.