28-1411. Use of force for protection of property.

(1) Subject to the provisions of this section and of section 28-1414, the use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary:

(a) To prevent or terminate an unlawful entry or other trespass upon land or a trespass against or the unlawful carrying away of tangible, movable property; Provided, that such land or movable property is, or is believed by the actor to be, in his possession or in the possession of another person for whose protection he acts; or

(b) To effect an entry or reentry upon land or to retake tangible movable property; Provided, that the actor believes that he or the person by whose authority he acts or a person from whom he or such other person derives title was unlawfully dispossessed of such land or movable property and is entitled to possession; and provided further, that:

(i) The force is used immediately or on fresh pursuit after such dispossession; or

(ii) The actor believes that the person against whom he uses force has no claim of right to the possession of the property and, in the case of land, the circumstances, as the actor believes them to be, are of such urgency that it would be an exceptional hardship to postpone the entry or reentry until a court order is obtained.

(2) For the purposes of subsection (1) of this section:

(a) A person who has parted with the custody of property to another who refuses to restore it to him is no longer in possession, unless such property is movable and was and still is located on land in his possession;

(b) A person who has been dispossessed of land does not regain possession thereof merely by setting foot thereon; and

(c) A person who has a license to use or occupy real property is deemed to be in possession thereof except against the licenser acting under claim of right.

(3) The use of force is justifiable under this section only if the actor first requests the person against whom such force is used to desist from his interference with the property, unless the actor believes that:

(a) Such request would be useless;

(b) It would be dangerous to himself or another person to make the request; or

(c) Substantial harm will be done to the physical condition of the property which is sought to be protected before the request can effectively be made.

(4) The use of force to prevent or terminate a trespass is not justifiable under this section if the actor knows that the exclusion of the trespasser will expose him to substantial danger of serious bodily harm.

(5) The use of force to prevent an entry or reentry upon land or the recapture of movable property is not justifiable under this section, although the actor believes that such reentry or recapture is unlawful, if:

(a) The reentry or recapture is made by or on behalf of a person who was actually dispossessed of the property; and

(b) It is otherwise justifiable under subdivision (1)(b) of this section.

(6) The use of deadly force is not justifiable under this section unless the actor believes that:

(a) The person against whom the force is used is attempting to dispossess him of his dwelling otherwise than under a claim of right to its possession; or

(b) The person against whom the force is used is attempting to commit or consummate arson, burglary, robbery or other felonious theft or property destruction and either:

(i) Has employed or threatened deadly force against or in the presence of the actor; or

(ii) The use of force other than deadly force to prevent the commission or the consummation of the crime would expose the actor or another in his presence to substantial danger of serious bodily harm.

(7) The justification afforded by this section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he can do so with safety to the property, unless the person confined has been arrested on a charge of crime.

(8) The justification afforded by this section extends to the use of a device for the purpose of protecting property only if:

(a) Such device is not designed to cause or known to create a substantial risk of causing death or serious bodily harm;

(b) Such use of the particular device to protect such property from entry or trespass is reasonable under the circumstances, as the actor believes them to be; and

(c) Such device is one customarily used for such a purpose or reasonable care is taken to make known to probable intruders the fact that it is used.

(9) The use of force to pass a person whom the actor believes to be purposely or knowingly and unjustifiably obstructing the actor from going to a place to which he may lawfully go is justifiable if:

(a) The actor believes that the person against whom he uses force has no claim of right to obstruct the actor;

(b) The actor is not being obstructed from entry or movement on land which he knows to be in the possession or custody of the person obstructing him, or in the possession or custody of another person by whose authority the obstructor acts, unless the circumstances, as the actor believes them to be, are of such urgency that it would not be reasonable to postpone the entry or movement on such land until a court order is obtained; and

(c) The force used is not greater than would be justifiable if the person obstructing the actor were using force against him to prevent his passage.

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