Q. Can a service member hit someone to stop him from taking or damaging his property?

A. Any time a service member resorts to using force, he or she runs the risk of being charged with assault in violation of Article 128 of the Uniform Code of Military Justice. In U.S. v. Kim P. Payne (2005), the U.S. Army Court of Criminal Appeals described the "property defense" this way: "The right to expel a trespasser, using no more force than is reasonably necessary therefor[e], without being guilty of assault and battery, is not limited to one's dwelling house, but applies to any property of which he was [in] lawful possession."

As that statement shows, the key elements to a defense of property defense include the defender's lawful possession of the property and the use of "no more force than is reasonably necessary."

It's also important for a service member to not "purposely provoke" someone into stealing his or her property "and then use his ownership of the property as an excuse for an unnecessary assault," the U.S. Court of Appeals for the Armed Forces said in U.S. v. Ronald J. Davis (2014).

Davis, an Army sergeant, had been convicted of simple assault with an unloaded firearm in an altercation with a specialist and his girlfriend at the appellant's home after a night of drinking. Accounts of the altercation varied, but Davis claimed he had warned the specialist to get away from his house and then pushed him when the specialist attempted to enter it. The specialist approached Davis, prompting another push and a warning to leave.

The specialist, who was significantly larger than Davis, threw a punch and missed. In response, Davis pulled an unloaded handgun from his back pocket and again told the specialist to leave.

At trial, a military judge had provided the panel with an instruction for self-defense, but not for property. The CAAF agreed with the lower court's decision that found the trial judge should have provided both defense instructions, but the failure to do so was a harmless error beyond a reasonable doubt.

The CAAF noted there was no evidence to show that the specialist "damaged the property, threatened the property, or intended to damage the property." Further, it said Davis' "brandishing of a firearm was a disproportionate and an unreasonable response under the circumstances."

Service members facing assault charges because of actions they took to defend themselves or their property should immediately consult with a military law attorney. Depending on the circumstances, the attorney could show the service member used a reasonable amount of force in defense of self or property.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

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