Request to Desist

Satisfying a purpose under paragraph (1) does not end the inquiry, because paragraph (3) attaches limits to every use of force the Section would otherwise justify. The first limit is the request to desist. Force is justifiable only if the actor first asks the person against whom it will be used to stop interfering with the property, unless the actor believes that one of three exceptions applies.¹ The word first fixes a sequence, so a request made after the force has begun comes too late. The request must also go to the person against whom the force is used, since that is the person whose conduct the actor is asking to change.

The reason for putting a request ahead of force is that speaking is the least harmful way to end most intrusions. Many people who step onto someone's land or pick up someone's belongings are mistaken, careless, or willing to leave once told, and a spoken request lets the possessor protect the property without touching anyone. Requiring the request first therefore keeps force from being the opening move, because a possessor who skips it has injured a person who might have stopped on hearing a single sentence. The rule also removes a temptation. A possessor who could confront an intruder physically from the first moment would have every reason to treat the encounter as a contest, while one who must speak first has to give the intruder a chance to end it. The exceptions then mark the cases where speaking cannot work, would itself be unsafe, or would come too late, which are the cases where the cost of requiring a request outweighs its benefit.

The Code did not invent this limit. The traditional rule likewise required the possessor to ask the intruder to leave or desist first, unless the request would clearly be in vain or there was no time or opportunity, and any force that followed had to be no greater than minimally required to end the intrusion.² Common-law statements of the warning duty add that a warning is owed only when it can be given without risk to the actor or the property, and that force is out of bounds when there is time for other lawful measures such as calling the police.³ The Code keeps the same shape and spells the excuses out as three exceptions.⁴

The request requirement sits beside the timing rules from the preceding sections without replacing them. Immediate necessity, the fresh-pursuit gate, and the claim-of-right gate all answer when force may begin, while the request requirement answers what the actor must do before it begins. Paragraph (1) grants both of its justifications, force to prevent an intrusion and force to retake dispossessed property, subject to the rest of the Section, so the request condition governs both purposes.⁵ Passing a timing gate does not excuse the request, and a retaker who has cleared fresh pursuit must still ask unless an exception applies. A request takes only seconds, so it fits inside even the tightest fresh-pursuit window.

The pug illustration shows the requirement met. When Dani drove up, she yelled at Jon not to take her pug, Rhaegal, and only afterward followed him and acted.⁶ The request came first, it was directed at the person who would later face force, and no exception had to be invoked because the ordinary rule was satisfied.

The three exceptions all relax the requirement in the same way: each is stated in terms of what the actor believes, so the question is how the situation appeared to the actor when deciding whether to speak. They are:

the actor believes the request would be useless;
the actor believes making the request would be dangerous to himself or another person;
the actor believes substantial harm will be done to the physical condition of the property before the request can effectively be made.⁷

The next subsections take each exception in turn, beginning with the belief that a request would be useless.

Useless Requests

The first exception to the request requirement applies when the actor believes that the request would be useless.⁹ The exception follows from the reason the request exists. Most intruders leave when told to, so a possessor who asks protects the property without touching anyone. When the actor believes asking cannot work, that justification is gone, and insisting on the request would only give the intruder more seconds to carry the property off or settle in. The traditional rule had the same shape, excusing the request when it would clearly be in vain, and the Code keeps that idea while stating the test in terms of what the actor believes.¹⁰

Because the text asks what the actor believes, the inquiry looks at how the situation appeared to the actor when deciding whether to speak. It does not ask what the intruder would have done had anyone asked, so an actor who believed the request pointless does not lose the exception because the intruder later claims to have been ready to comply. Two kinds of facts usually support such a belief. The first is the intruder's own conduct: a person who has ignored commands to stop, or who has announced an intention to stay or to keep the property, has given the actor reason to expect that another request will go unheeded. The second is the surrounding circumstances, such as a thief already driving away with the property, where a shouted request could not even be heard. In practice the belief needs something behind it, since a factfinder will ask what the actor saw that made the request seem hopeless.

The exception matters when the actor has not asked and the facts have already shown that asking would fail. Change what the actor has to go on and the answer changes with it.

The only difference between the two scenes is whether the actor had a reason to expect failure. A common mistake is to reason that a thief is plainly a wrongdoer and therefore deserves no request. Wrongdoing does not supply a belief about futility, because the exception asks whether speaking would fail, and many people caught doing wrong stop at once when told to. Satisfying this exception also excuses only the request. The other limits in paragraph (3) and the restrictions on deadly force continue to apply, and the next subsection takes up a second excuse, the belief that making the request would be dangerous.

Dangerous Requests

The second exception to the request requirement applies when the actor believes it would be dangerous to himself or another person to make the request.¹² The exception follows from what the request is for. A request to desist exists to end an intrusion at the lowest possible cost, because speaking is safer for everyone than force. That advantage assumes that speaking is itself safe. When the actor believes that calling out would draw an attack, the request stops being the gentle option and becomes a risk the actor is asked to run for the intruder's benefit, so the requirement gives way. The law does not ask a possessor to gamble on personal safety, or on the safety of family, merely to give a wrongdoer the courtesy of a warning.

The common-law statement of the warning duty has the same shape. A person must warn the aggressor to stop only if the warning can be given without risk to himself or his property, and even then the warning is excused when it would clearly be useless.¹³ The Code's text speaks of danger to the actor or to another person, so a belief that a request would endanger a spouse or child inside the house, or a bystander nearby, qualifies even though the actor is safe. Risk to the property itself has its own exception, which comes next. The present exception is about danger to persons that the request would create.

Because the text turns on what the actor believes, the question is how the situation looked when the actor decided whether to speak. The facts that usually support such a belief are the number of intruders, whether any of them appears to be armed, the hour, and who else is within reach. Under the common-law approach, the belief must also be honestly and reasonably held, and a person who forms it negligently loses the privilege.¹⁴ A factfinder will therefore ask what the actor saw that made speaking seem hazardous.

Hypothetical Illustration

At night Ada sees three hooded men dragging her motorcycle onto a truck, and one of them is holding a bat. She reasonably believes that calling out would draw an attack on her or on her family inside the house, so she says nothing and uses nondeadly force to stop the theft. The request requirement is excused, because her belief concerns the danger of making the request itself and rests on the number of men, the bat, and the hour. The other limits of paragraph (3) still govern her force. Change the scene: a lone teenager in a hoodie cuts across Ada's lawn, unarmed and alone. Ada has no reason to fear that a request would endanger anyone, so the exception is unavailable. If she tackles him without a word, the force is not justified under this Section for want of a request.

The two scenes differ in one respect, which is whether the actor had a reason to believe that speaking would be dangerous. Students often blur this point by treating any frightening or unpleasant intruder as enough. The exception asks about danger in making the request, and a stranger's presence on the land, or an actor's distaste for confrontation, does not supply it. An intruder who is menacing in the abstract but who could safely be told to leave leaves the requirement in place.

The exception also marks where this Section hands off to another body of law. If the danger ripens into a threat to persons, the situation is no longer simply the protection of property. The common-law treatment of a thief who responds with what reasonably appears to be deadly force says that the encounter has become one of defense of life, and the rules of self-defense take over from here.¹⁵ Those rules are taught separately. Satisfying this exception also excuses only the request. The remaining limits in paragraph (3) continue to apply, and a person may not use deadly force solely to protect property.¹⁶ The next subsection takes up the third excuse, which looks to the property rather than to the people.

Harm Before Request

The third exception to the request requirement applies when the actor believes that substantial harm will be done to the physical condition of the property before the request can effectively be made.¹⁸ The first two exceptions ask whether speaking would fail and whether speaking would endanger someone. This one asks whether speaking would come too late. A request exists to end an intrusion before it costs anything, and that purpose disappears when the damage is happening now and will be finished in the time it takes to speak and wait for a response. The word effectively carries the weight, since the question is whether a request could still prevent the harm, and a request that could only be uttered after the damage was done would protect nothing. Under this exception, then, speed counts for more than speech.

Each limiting phrase in the exception has its own job. Substantial keeps the exception from swallowing the rule, because nearly every intrusion does some trivial harm, such as a trampled flower bed, and if trivial harm excused the request then the request would almost never be required. Physical condition ties the exception to damage to the thing itself, such as breaking, smashing, defacing, or destroying it. A taking that leaves the property intact does not by its wording fit this clause, although the request might still be excused on another ground, such as a belief that asking would be useless. As with the other two exceptions, the question is how the situation appeared to the actor at the moment the actor had to decide whether to speak.

The common law reached a similar result in a case about a fence. In M'Ilvoy v. Cockran, a Kentucky court in 1820 considered a possessor who shot and severely wounded a man while the man was trying to tear down a fence on the possessor's land.¹⁹ The court held that the possessor did not have to ask the man to leave while he was actively destroying property. Where an intruder uses actual force, as in breaking open a gate or carrying off goods, the possessor may oppose force with force at once because there is no time for a request, while an entry without actual force requires a request to depart first.²⁰ The Code frames the excuse by the harm threatened rather than by the manner of entry, but the idea underneath is the same. The case also shows what the excuse leaves untouched. The court rejected the plea that the wounding was justified merely by the defense of possession, and it added that a wounding could be justified only if the intruder had assaulted the possessor or the possessor's family, so that the personal assault would be the ground of justification.²¹

The two scenes differ in one respect, which is whether damage is under way. On an exam stem the fact that carries this exception is destruction in progress. The intruder's mere presence on the land, a bad reputation, or the possessor's annoyance does not carry it. Once destruction is under way, the actor may act without speaking, but the exception excuses only the request. The force must still be immediately necessary, and it must stay within the limits on deadly force, because property alone does not justify deadly force. A possessor who believes the fence is about to be wrecked may seize the man at once, and the same possessor may not shoot him. A further limit in paragraph (3)(b) turns on the danger the actor would face in excluding a trespasser, and the next section takes it up.