14 J.L. & Econ. 201 (1971)
Killing or Wounding to Protect a Property Interest

handle is hein.journals/jlecono14 and id is 205 raw text is: KILLING OR WOUNDING TO PROTECT
A PROPERTY INTEREST*
RICHARD A. POSNER
University of Chicago Law School
A farmer in Iowa named Briney had a farmhouse in which he stored old
furniture and odds and ends, including some antiques of undisclosed value.
After several thefts, Briney rigged a spring gun in the farmhouse.1 At his
wife's suggestion, he pointed the gun so that it would hit an intruder
in the legs-not, as Briney had initially planned, in the stomach. A man
named Katko, who had previously stolen goods from the place, broke in,
triggered the spring gun, and was badly wounded in the leg. He was initially
charged with burglary but later permitted to plead guilty to petty larceny,
fined $50, and given a suspended jail sentence. He brought a civil suit against
the Brineys, charging that his wounding was a battery, and won a jury award
of $20,000 in compensatory and $10,000 in punitive damages. The verdict
occasioned a public outcry, and proposed legislation (modeled on a recent
Nebraska law) that would explicitly have authorized the use of deadly force
in defense of property2 was narrowly defeated in the state legislature.3 At
this writing the case is awaiting decision in the Supreme Court of Iowa on
defendants' appeal.4
* The author wishes to acknowledge the research assistance of Nancy Goldberg, of
the Class of 1971 at the University of Chicago Law School, and of Richard Fielding, of
the Class of 1973.
1 A gun (usually a shotgun) rigged to fire when a string or other triggering device
is tripped by an intruder.
2 Iowa General Assembly, House File 1106 (Jan. 26, 1970), 1302 (Feb. 23, 1970).
Senate File 1147 (Jan. 29, 1970). The Nebraska statute is Neb. Sess. Laws, 1969, ch.
233, Self Defense Act.
3 See Ross, The Thief Who Was Awarded $30,000, Parade Magazine, Dec: 14, 1970,
at 7.
4 The case was decided shortly after this article went to press. The court affirmed the
judgment for the plaintiff, one judge dissenting. Katko v. Briney, No. 162-54169 (Sup.
Ct. of Iowa, Feb. 1971). The court's opinion illustrates the analytical confusion that,
as we shall see, is typical of the area. The opinion contains broad language (drawn from
authorities discussed in part I of this article) to the effect that killing or wounding in
defense of property is never privileged to prevent a felony of violence, without, how-
ever, explaining what that expression means and, in particular, without mentioning the
cases in which killing to prevent a burglary has been held to be privileged (see, for
example, note 10 and accompanying text, infra). The most satisfactory ground of the

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