Duhaime's Law Dictionary


Defence of Habitation Definition:

The right to use lethal force to prevent a felony committed within a person's home.

A doctrine of American criminal and constitutional law.

In State v Boyett, Justice Serna of the Supreme Court of New Mexico recognized that the defense of habitation applied in New Mexico adding:

"Defense of habitation ... gives a person the right to use lethal force against an intruder when such force is necessary to prevent the commission of a felony in his or her home. The defense is grounded in the theory that the home is one of the most important institutions of the state, and has ever been regarded as a place where a person has a right to stand his [or her] ground and repel, force by force, to the extent necessary for its protection.

"Ultimately, in every purported defense of habitation, the use of deadly force is justified only if the defendant reasonably believed that the commission of a felony in his or her home was immediately at hand and that it was necessary to kill the intruder to prevent that occurrence.

"This Court has refused to extend the defense to situations in which the victim was fleeing from the defendant ...  as well as situations in which the victim had lawfully entered the defendant's home.... But our courts have never held that entry into the defendant's home is a prerequisite for the defense. On the contrary, ...in certain circumstances, (the defense of habitation) may justify an occupant's use of lethal force against an intruder who is outside the home. In addition to providing a defense for the killing of an intruder already inside the defendant's home, ... defense of habitation justifies killing an intruder who is assaulting the defendant's home with the intent of reaching its occupants and committing a felony against them."

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