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Originally Posted by fiddletown
The key to the presumption, in my view, is that the person using force must have known, or must have had reason to believe, that the person against whom he did use force had entered unlawfully and forcibly. And therefore to gain benefit of the presumption you, the resident, must be able to establish that you did know or have reason to know that the person against whom you used force did enter unlawfully and forcibly.
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To pick nits here, fiddletown, the second half of your statement doesn't match the first part ... or the law. To gain the presumption, one does not have to have reason to "know" that an unlawful and forcible entry has occurred, he only has to have reason to "believe" that an unlawful and forcible entry has occurred.
IANAL, but it seems to me that this distinction is critical. If I awaken at oh-dark-thirty to find a strange man (or two or three) standing in my bedroom, I know it's my house and I know I didn't give anyone permission to be there, so can we take the unlawful part as a stipulation? That leaves the forcible entry part. I cannot
know with 100 percent certainty that I remembered to lock all the doors and windows ... but that has been my habit for the past 25 years, so I certainly "reasonably believe" that all doors and windows were locked and that the strangers must have broken in.