When Can I Shoot the Repo Man?

GUEST EDITORIAL

In today’s world of asset recovery, we are encountering more and more consumers who carry concealed firearms. Numerous states have enacted concealed and open carry laws and many of the people we meet while attempting to recover mortgaged property carry a firearm or edged weapon regardless of the laws. I also would acknowledge that many recovery agents carry firearms, knives or other offensive and defensive weapons ranging from tire bats and chains to fire extinguishers and pepper spray.

I think it is important for the agent in the field to have an understanding of what the consumer thinks they can or cannot do if the agent enters upon the consumer’s property and to that end the members of Eagle Group XX would suggest you share this information with your field agents as they have shared it with the industry.

First you must understand and consider “Trespass” … the contractual agreement gives the agent the right to enter upon private property and recover mortgaged property if there is no “Breach of Peace”. With this right the mere entering on the property would not normally be considered a “Breach of Peace”. A “Breach of Peace” would occur if the agent cut a lock to gain entry, opened a secured gate, opened a closed door and the agent would lose their right to repossess the collateral and possibly place themselves in a position for bodily injury inflicted by the consumer. What if the property has displayed signs stating, “NO TRESPASSING ” or the more threatening “TRESPASSERS WILL BE SHOT”… would these give the consumer the right to “defend with deadly force”?

The initial question asked by the consumer then is “Can I shoot someone who is trespassing on my property?” Obviously, the answer must always be focused on circumstance, such as if this theoretical person was breaking into or had broken into the property and was perceived to be a threat rather than if someone who was just on their property,

So, for the agent the question then evolves to, “If I, as a recovery agent, am on the property owned by the consumer or a third party, is the property owner or consumer legally allowed to use deadly force?”

While still being a very grey question, my general answer will always be “no”, but there are always other circumstances to consider such as the time of the day or night, was a gate entered, was there any “NO TRESPASSING” signs, the size, age and demeanor of the agent may even be a factor.

First, it is important for an agent to note and understand that the courts will take a high view of an individual’s property rights. The act of trespassing itself may be actionable in both civil and criminal courts of law and if there was in fact an action which would constitute a trespass the right to self-help repossess will be lost. The recovery agent should understand that there are two legal doctrines may apply, based on their state laws.

Stand Your Ground laws and the Castle Doctrine are the laws which the recovery agent should have a full knowledge of.

Stand Your Ground laws are implemented on a State by State basis and are essentially the ultimate basis for property rights: You have no duty to retreat from a place that you are legally entitled to be. Reasonably perceived immediate threats of serious bodily harm may be met with any level of force.

An argument can be made that if someone reasonably perceived an immediate threat of serious bodily harm they could, in fact, shoot that person who was perceived as a threat and who was also perceived to be trespassing on their property.

The Castle Doctrine, often expanded and cited as the basis for Stand Your Ground laws, is a commonly known legal doctrine that holds true to the general principle that one’s abode is his “castle” and that he does not have any duty to retreat in said home. He has the right to protect his “castle” from intruders. It should be noted that the Castle doctrine is not an actual law, but a collection of principles that can be invoked in many jurisdictions as a form of defense to a murder charge. It is also somewhat specific to one’s abode rather than just the general idea of one’s property but in many cases a garage or even a car port has been recognized as part of the abode.

The Castle Doctrine still requires an immediate threat of physical harm with the reasonable perception of injury to either the property owner or another.

This is where the mitigating circumstances of time of day or night, size and age and demeanor of the agent enter the picture. Even the number of agents or their assistants may enter the picture.

For the professional asset recovery agent “Trespassing” can be a very grey area. If the agent is merely present on the consumers property it is highly doubtful that the consumer or third party would be legally entitled to use deadly force against them. But it is extremely important that the agent understand that any threatening language or behavior, the cutting or breaking of locks, opening and entering closed doors and numerous other factors could certainly rise to a level where deadly force could be justified and would be legally acceptable.

In my many years in the asset recovery industry I have never seen a vehicle worth anyone’s life… not the agent, not the consumer and not any third party. In every case where I have worked as an expert witness all parties involved were filled with deep remorse and regret.

The Credo of Eagle Group XX is “DIA MATHESEOS DYNAMIS”, Through Knowledge Power and I hope this knowledge provided with this short missive benefits the readers.