Defending a household; Law allows use of deadly force against burglars

How to keep not only the wolf but would-be burglars away from the door -- and windows -- is a growing concern to citizens across the United States.

And with more than 2.5 million house break-ins nationally in 1980, a 19 percent increase from the year before, growing cries for tougher penalties are echoing through lawmaking chambers.

But there is little agreement on how best to come to grips with the problem. Currently at issue is a controversial new Massachusetts statute expanding a householder's right to use deadly force to resist an intruder.

Critics of the measure, which took effect March 25, say it will not deter burglars and they warn it may result in killings and injuries which could have been avoided, including those of innocent bystanders and victims of mistaken identity.

Backers of the new law, including aides of Gov. Edward J. King, its prime mover, maintain it should be every person's right to defend his home and employ whatever means may be necessary to accomplish this.

Massachusetts, they note, is not the first state with such a measure on the books. At least nine other states have enacted similar legislation in recent decades. Similarly, court rulings in most other states have upheld the right to use so-called deadly force against an intruder in one's dwelling, asserts Dennis Curran, deputy chief counsel to Governor King.

He discounts claims by leaders of the Civil Liberties Union of Massachusetts (CLUM) and other critics that the new law will not give anyone more protection than they previously had and may be ''misinterpreted as a license to kill.''

Although declining to speculate how effective the Massachusetts law might be in reducing housebreaks, which totalled more than 95,000 in the commonwealth last year, backers of the measure view it as essential in closing legal loopholes opened in a 1975 state Supreme Court ruling stemming from a case in which a mother of two shot to death, rather than attempted to flee, a former live-in boyfriend who had invaded her home and threatened to kill her. The court determined the woman was guilty.

The ruling by the justices was widely interpreted to mean that the dwelling occupant must retreat, if possible, before employing force against someone breaking into a home.

The new Massachusetts statute, like those enacted or being considered elsewhere, does not provide an outright immunity against prosecution for those who injure or kill an intruder. But it does establish a new legal defense for persons charged in situations where they had feared serious bodily harm. It is up to the attacking home occupant, however, to prove that he felt his life was in jeopardy.

If the intruder is a 12-year-old boy and the householder is a 6-foot, 2-inch man, the self-defense would be a lot harder to prove than if the burglar was a husky youth and the occupant a slight, elderly lady.

Foes of the statute, like attorney Harvey Silverglade, who led the unsuccessful CLUM fight against the legislation, caution that in some instances the person whose home is broken into will respond with violence before determining whether the intruder is young or old, armed or unarmed. The law cites there is no obligation for the home occupant to flee the unlawfully invaded dwelling.

Deadly force laws are also on the books in Alaska, Hawaii, Idaho, Maine, Nevada, New Hampshire, North Dakota, Pennsylvania, and South Dakota.

Court rulings upholding the right to use deadly force in at least some instances of self defense in one's home date as far back as 1958 in Minnesota and as recent as 1978 in Kansas.

National crime statistics, compiled by the FBI, indicate that 67 percent of all burglaries involve house breaks.