In recent days, as the trial unfolded of a horrific homicide at a track meet in Texas, public debate raged over the meaning of “self-defense.” While there are many different facets to the self-defense angle of that case, one key issue that is worth considering in more detail concerns the owner’s right to exclude anyone from his premises. The aim of this brief article is not to discuss the case itself but to shed light on the nature and scope of the right to exclude and to show why a property owner—or someone acting with the authority of the owner—has an absolute right to exclude anyone and to use force in doing so.
According to the Daily Mail reporter MaryAnn Martinez, who has been in the courtroom covering the trial, the defense has argued that, “Austin Metcalf had no legal right to use force to eject Karmelo Anthony from that tent. He had the right to ask him to leave, but he didn’t have any legal right to use force.” The “force” used in this case was a shove, described by Karmelo Anthony as “he put his hands on me.” The defense is arguing that Metcalf had “no legal right to put his hands on Karmelo” and that “Karmelo had an absolute right to defend himself against that.”
The question is, if a property owner, or someone acting under the owner’s authority, deploys physical force to remove an intruder from the premises, does that use of force by the owner against the intruder give the intruder a right to “self-defense”? Can the intruder use deadly force against the owner and claim to have done so in self-defense?
As I have previously discussed, from a Rothbardian perspective, self-defense is a natural right inherent in self-ownership. The boundaries of this right, in practical situations, are determined by the applicable law of the jurisdiction in question—in this case, Texas law—as well as the facts of the case.
It is not impossible to imagine a scenario where the original victim of a criminal invasion—the property owner—turns into an aggressor by deploying disproportionate force against the intruder, and Rothbard gives some examples of this. For example, where “his ‘defense’ would in itself constitute a criminal invasion of the just property of some other man, which the latter could properly defend himself against.”
In a general sense people are right to say that anyone has a natural right to defend himself against attack in any situation. But a criminal invader cannot claim to deploy violence in “self-defense” unless the victim of the invasion—the owner or someone acting on the owner’s behalf—uses force so grotesquely out of proportion to the invasion that he himself becomes an aggressor.
Rothbard gives the example of a thief who launches “a minuscule invasion of another’s property” such as shoplifting bubblegum from a store. In this example, we would not consider it reasonable for the owner to execute the thief. Executing people for stealing bubblegum would turn the owner into the aggressor, assuming that the scope of the crime is clear on the facts of the case.
To understand how the debate on this point arose in the Texas case, the starting point of the analysis must be that property entails the right to exclude. The scene of the crime was a sports tent reserved for exclusive use of the team. The team—through the acts of any of its members under the authority of the coach—was entitled to exclude from the tent anyone who was not a member of the team.
From the starting point of the right to exclude, the theoretical analysis would be that any invader—in aggressing against the property rights of another—cannot claim that the property owner who uses physical force to exclude him is the “aggressor.” The owner has an absolute right to exclude anyone from his property, and to use force in expelling an intruder. As Murray Rothbard puts it,
If every man has the absolute right to his justly-held property, it then follows that he has the right to keep that property—to defend it by violence against violent invasion.
If the owner has the prerogative to exclude, it means he can exclude anyone for any reason, and once his permission to be on the premises is withdrawn, any person with no permission to be present stands in the position of a trespasser. Should a trespasser refuse to leave the premises on demand by the owner, the owner has a right to use reasonable force in expelling him.
Expelling an intruder is not an act of “aggression” against the intruder, who has himself violated the property rights of another. Nor does it give the trespasser a right to deploy violence in “self-defense” against the owner who is defending his property from invasion, as he is absolutely entitled to do.
If a trespasser deploys force against the owner, that just means he is a violent aggressor—he has added unjustified violence to his initial wrongful trespass. Far from being entitled to “defend himself” against the owner, he has only aggravated his original intrusion upon the property rights of another.
To clarify this point, it may be helpful to posit a scenario where the analysis is obvious, such as the case of a trespasser who invades someone’s home and refuses to leave when the homeowner tells him to get out. Does the trespasser have a right to “self-defense” if the homeowner physically attempts to throw him out of the premises? If the homeowner “put his hands” on the trespasser, would we say the homeowner has now “attacked” the trespasser, and the trespasser is hence entitled to respond with force by way of “self-defense”?
In that scenario, the answer is obvious. Any reasonable person would reject as nonsensical the idea that a trespasser has a right to “self-defense” against the homeowner.
The right to exclude is the essence of private property. That right need not be exercised by the legal owner, but may be exercised on his behalf by anyone with his explicit or implicit authority. Rothbard explains,
Furthermore, if every man has the right to defend his person and property against attack, then he must also have the right to hire or accept the aid of other people to do such defending: he may employ or accept defenders just as he may employ or accept the volunteer services of gardeners on his lawn.
Further, Rothbard is clear that the right to exclude may be defended with physical force. The right to exclude would be meaningless if the intruder could simply say, when asked to leave, “No, I will not leave.” Then the owner would only be able to request that a trespasser should leave but if the trespasser said no, that would be the end of the matter. It would amount to abolition of the right to exclude by stealth. As Rothbard puts it,
To say that someone has the absolute right to a certain property but lacks the right to defend it against attack or invasion is also to say that he does not have total right to that property.
Some argue that if an intruder refuses to leave when requested to do so, the only prudent recourse is to summon the police who have a monopoly on the use of force. They argue that only the police can “put their hands” on anyone who refuses to leave your premises when you have asked him nicely and politely, but he still says no.
Again, this would render the right to exclude meaningless. It would simply be a discretionary request that may be fulfilled by the police should they be able and willing to show up to expel the intruder. This would be incompatible with the natural rights theory of property rights, in which the right to exclude is an inherent and inalienable right and not a right enjoyed as some kind of favor from the law enforcement agencies of the state.
Matters may seem more complicated in the ongoing Texas case because the setting was a school track meet open to members of the public. Many observers have emphasized relevant facts such as the accused person had brought a knife to school which was against the rules, although the blade was too short to be in violation of Texas law. But these facts, which are specific to the case in question, should not be allowed to obscure the essential principles of the right to exclude.
The essential principles are clear. There is no doubt that the right to exclude is inextricable from the right to private property. In the Rothbardian system, all property is private property. In exercise of the right to exclude, the owner is entitled to use physical force. Deploying proportionate physical force in expelling an intruder does not amount to an “attack,” nor does it turn the owner or his agents into “aggressors.” The trespasser—the person who has been asked to leave the premises—is the aggressor because he has violated the property rights of another.
Unless the owner deploys force out of all proportion to the invasion, the trespasser who uses force against the owner is not acting in “self-defense” but on the contrary is only aggravating his own crimes.
