Castle Doctrine…

Castle doctrine

From Wikipedia, the free encyclopedia
 

A Castle Doctrine (also known as a Castle Law or a Defense of Habitation Law) is an American legal doctrine that designates a person’s abode (or, in some states, any place legally occupied, such as a car or place of work) as a place in which the person has certain protections and immunities and may in certain circumstances attack an intruder without becoming liable to prosecution.[1]Typically deadly force is considered justified, and a defense of justifiable homicide applicable, in cases “when the actor reasonably fears imminent peril of death or serious bodily harm to himself or another”.[1] The doctrine is not a defined law that can be invoked, but a set of principles which is incorporated in some form in the law of most states.

The term derives from the historic English common law dictum that “an Englishman’s home is his castle”. This concept was established as English law by 17th century jurist Sir Edward Coke, in hisThe Institutes of the Laws of England, 1628.[2] This was carried by colonists to the New World, who later removed “Englishman” from the phrase, thereby becoming simply the Castle Doctrine.[2] The term has been used to imply a person’s absolute right in England to exclude anyone from their home, although this has always had restrictions, and since the late twentieth century bailiffs have also had increasing powers of entry.[3]

The term “Make My Day Law” arose at the time of the 1985 Colorado statute that protects people from any criminal charge or civil suit if they use force – including deadly force – against an invader of the home.[4] The law’s nickname is a reference to the line “Go ahead, make my day” uttered by actor Clint Eastwood’s character Harry Callahan in the 1983 film Sudden Impact, inviting a suspect to make himself liable to deadly retaliation by attacking Eastwood’s character.

Conditions of use

Each state differs in the way it incorporates the castle doctrine into its laws, what premises are covered (abode only, or other places too), what degree of retreat or non-deadly resistance is required before deadly force can be used, etc.

Typical conditions that apply to some Castle Doctrine laws include[citation needed]:

  • An intruder must be making (or have made) an attempt to unlawfully or forcibly enter an occupied residence, business or vehicle.
  • The intruder must be acting illegally—the Castle Doctrine does not give the right to attack, for example, officers of the law acting in the course of their legal duties
  • The occupant(s) of the home must reasonably believe that the intruder intends to inflict serious bodily harm or death upon an occupant of the home
  • In some states, the occupant(s) of the home must reasonably believe that the intruder intends to commit some lesser felony, such as arson or burglary
  • The occupant(s) of the home must not have provoked or instigated an intrusion, or provoked or instigated an intruder to threaten or use deadly force
  • The occupant(s) of the home may be required to attempt to exit the house or otherwise retreat (this is called the “Duty to retreat” and most self-defense statutes referred to as examples of “Castle Doctrine” expressly state that the homeowner has no such duty)

In all cases, the occupant(s) of the home must be there legally, must not be fugitives from the law or aiding or abetting another person in being a fugitive from the law, and must not use force upon an officer of the law performing a legal duty[citation needed].

[edit]Immunity from civil lawsuit

In addition to providing a valid defense in criminal law, many laws implementing the Castle Doctrine, particularly those with a “Stand-Your-Ground clause”, also have a clause which provides immunity from any lawsuit filed on behalf of the assailant for damages or injury resulting from the lawful use of not excessive force. Without this clause an assailant can sue for medical bills, property damage, disability, and pain and suffering as a result of the injuries inflicted by the defender, or their next-of-kin may sue for wrongful death in the case of a fatality. Even if successfully rebutted, the defendant (the homeowner defender) may have to pay high legal costs as a result of such lawsuits; without immunity, such civil action could be used for revenge against a defender acting lawfully.

Use of force in self-defense which causes damage or injuries to other parties who were not acting criminally may give rise to prosecution and damages.

[edit]Duty-to-retreat

“Castle laws” remove the duty of a person legally at home not to use deadly force on an illegal intruder if he can safely retreat instead.[5]

[edit]Stand-your-ground

Other states expressly relieve the home’s occupants of any duty to retreat or announce their intent to use deadly force before they can be legally justified in doing so to defend themselves. Clauses that state this fact are called “Stand Your Ground”, “Line In The Sand” or “No Duty To Retreat” clauses, and state exactly that the defender has no duty or other requirement to abandon a place in which he has a right to be, or to give up ground to an assailant. States often differentiate between altercations occurring inside a home or business and altercations in public places; there may be a duty to retreat from an assailant in public when there is no duty to retreat from one’s own property, or there may be no duty to retreat from anywhere the defender may legally be.[6] Other restrictions may still exist; when in public, a person must be carrying the firearm in a legal manner, whether concealed or openly.

“Stand your ground” governs U.S. federal case law in which self-defense is asserted against a charge of criminal homicide. The Supreme Court ruled in Beard v. U.S. (1895) that a man who was “where he had the right to be” when he came under attack and “…did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm…was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground.”[7][8]

In a Minnesota case, State v. Gardner (1905), where a man was acquitted for killing another man who attempted to kill him with a rifle, Judge Jaggard stated:

The doctrine of “retreat to the wall” had its origin [in Medieval England] before the general introduction of guns. Justice demands that its application have due regard to the general use of and to the type of firearms. It would be good sense for the law to require, in many cases, an attempt to escape from a hand to hand encounter with fists, clubs and even knives as a justification for killing in self-defense; while it would be rank folly to require [an attempt to escape] when experienced persons, armed with repeating rifles, face each other in an open space, removed from shelter, with intent to kill or cause great bodily harm[9]

Justice Oliver Wendell Holmes, Jr. declared in Brown v. United States (256 U.S. 335, 343 (16 May 1921)) when upholding the no duty to retreat maxim that “detached reflection cannot be demanded in the presence of an uplifted knife”.[10]

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This section does not cite any references or sources. Please help improve this section by adding citations to reliable sources. Unsourced material may be challenged and removed(January 2012)

Most gun control groups, such as the Violence Policy Center and the Brady Campaign denounce “Stand-Your-Ground” clauses as “Shoot First” laws (as in “shoot first, ask questions later”), asserting that the presumptions and other protections afforded to gun owners allow them virtual carte blanche to shoot anyone who is perceived to be trespassing. They also claim it will lead to cases of mistaken identity, so-called “shooting the milkman” scenarios. Gun rights groups, such as the National Rifle Association claim that such scenarios are unlikely and are not protected under most Castle laws; the shooter is only justified if the assailant broke into the home or attempted to commit some other property crime such as arson, and simple trespass is neither.

[edit]Adoption by states

As of 28 May 2010 31 States had some form of Castle Doctrine or Stand Your Ground law. Alabama,[11] Alaska, Arizona, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Missouri, Montana, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island,[12] South Carolina, South Dakota, Tennessee, Texas, Utah,[13]West Virginia and Wyoming have adopted Castle Doctrine statutes, and other states (Montana, Nebraska,[14] New Hampshire, Virginia, and Washington) are currently considering “Stand Your Ground” laws of their own.[15][16][17]

Some of the states that have passed or are considering “stand your ground” laws already implement “stand your ground” principles in their case law. Indiana and Georgia, among other states, already had “stand your ground” case law and passed “stand your ground” statutes due to possible concerns of the case law being replaced by “duty to retreat” in later court rulings. Other states, including Washington, have “stand your ground” in their case law but have not adopted statutes; West Virginia had a long tradition of “stand your ground” in its case law[18] before codifying it as a statute in 2008. These states did not have civil immunity for self defense in their previous self defense statutes.

[edit]Arkansas

5-2-620. Use of force to defend persons and property within home.

(a) The right of an individual to defend himself or herself and the life of a person or property in the individual’s home against harm, injury, or loss by a person unlawfully entering or attempting to enter or intrude into the home is reaffirmed as a fundamental right to be preserved and promoted as a public policy in this state.

(b) There is a legal presumption that any force or means used to accomplish a purpose described in subsection (a) of this section was exercised in a lawful and necessary manner, unless the presumption is overcome by clear and convincing evidence to the contrary.

(c) The public policy stated in subsection (a) of this section shall be strictly complied with by the court and an appropriate instruction of this public policy shall be given to a jury sitting in trial of criminal charges brought in connection with this public policy. History. Acts 1981, No. 880, § 1; A.S.A. 1947, § 41-507.1.
5-2-607. Use of deadly physical force in defense of a person.

(a) A person is justified in using deadly physical force upon another person if the person reasonably believes that the other person is: (1) Committing or about to commit a felony involving force or violence; (2) Using or about to use unlawful deadly physical force; or (3) (A) Imminently endangering the person’s life or imminently about to victimize the person as described in § 9-15-103 from the continuation of a pattern of domestic abuse. (B) As used in this section, “domestic abuse” means the same as defined in § 9-15-103.

(b) A person may not use deadly physical force in self-defense if he or she knows that he or she can avoid the necessity of using deadly physical force with complete safety: (1) (A) By retreating. (B) However, a person is not required to retreat if the person is: (i) In the person’s dwelling or on the curtilage surrounding the person’s dwelling and was not the original aggressor; or (ii) A law enforcement officer or a person assisting at the direction of a law enforcement officer; or (2) By surrendering possession of property to a person claiming a lawful right to possession of the property.

(c) As used in this section, “curtilage” means the land adjoining a dwelling that is convenient for family purposes and habitually used for family purposes, but not necessarily enclosed, and includes an outbuilding that is directly and intimately connected with the dwelling and in close proximity to the dwelling. History. Acts 1975, No. 280, § 507; A.S.A. 1947, § 41-507; Acts 1997, No. 1257, § 1; 2007, No. 111, § 1.

[edit]Delaware

Justification—Use of force in self-protection.[19]

(a) The use of force upon or toward another person is justifiable when the defendant believes that such force is immediately necessary for the purpose of protecting the defendant against the use of unlawful force by the other person on the present occasion.

(b) Except as otherwise provided in subsections (d) and (e) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as the person believes them to be when the force is used, without retreating, surrendering possession, doing any other act which the person has no legal duty to do or abstaining from any lawful action.

(c) The use of deadly force is justifiable under this section if the defendant believes that such force is necessary to protect the defendant against death, serious physical injury, kidnapping or sexual intercourse compelled by force or threat.

(d) The use of force is not justifiable under this section to resist an arrest which the defendant knows or should know is being made by a peace officer, whether or not the arrest is lawful.

(e) The use of deadly force is not justifiable under this section if:

(1) The defendant, with the purpose of causing death or serious physical injury, provoked the use of force against the defendant in the same encounter; or

(2) The defendant knows that the necessity of using deadly force can be avoided with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that the defendant abstain from performing an act which the defendant is not legally obligated to perform except that:

a. The defendant is not obliged to retreat in or from the defendant’s dwelling; and

b. The defendant is not obliged to retreat in or from the defendant’s place of work, unless the defendant was the initial aggressor; and

c. A public officer justified in using force in the performance of the officer’s duties, or a person justified in using force in assisting an officer or a person justified in using force in making an arrest or preventing an escape, need not desist from efforts to perform the duty or make the arrest or prevent the escape because of resistance or threatened resistance by or on behalf of the person against whom the action is directed.

[edit]Illinois

(720 ILCS 5/) Criminal Code of 1961

Section 7. Justifiable use of force. Use of deadly force justified if the person reasonably believes they are in danger of death or great physical harm. Use of deadly force justified if the unlawful entry is violent, or the person believes the attacker will commit a felony upon gaining entry.

Section 7-2(b). Prevents the aggressor from filing any claim against the defender unless the use of force involved “willful or wanton misconduct”.

Illinois has no requirement of retreat. (People v. Bush, 111 N.E.2d 326 Ill. 1953).

[edit]Indiana

Ind. Code Section 35-41-3-2 (b) A person: (1) is justified in using reasonable force, including deadly force, against another person; and (2) does not have a duty to retreat; if the person reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or attack on the person’s dwelling…[20]

[edit]Missouri

The laws regulating the “defense of justification” against criminal charges are in Chapter 563 of Title 38, with the most relevant information in section .031 of that chapter. In order for there to be legal justification to use physical force in defense of persons, it is necessary that the actor “reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person.” In order for the use of deadly force to be permissible, one of several additional criteria must be met, one of which is described in subdivision (2) of subsection 2: “Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter private property that is owned or leased by an individual claiming a justification of using protective force under this section.” The law also stipulates that “A person does not have a duty to retreat from a dwelling, residence, or vehicle where the person is not unlawfully entering or unlawfully remaining. A person does not have a duty to retreat from private property that is owned or leased by such individual.” Defense of a home can affect the burden of proof for the defense of justification, since justification is normally an affirmative defense in which the burden of proof lies with the defense, but “If a defendant asserts that his or her use of force is described under subdivision (2) of subsection 2 of this section, the burden shall then be on the state to prove beyond a reasonable doubt that the defendant did not reasonably believe that the use of such force was necessary to defend against what he or she reasonably believed was the use or imminent use of unlawful force.

[edit]Montana

Montana Code Annotated 2009[21] Title 45. CRIMES[22] CHAPTER 3. JUSTIFIABLE USE OF FORCE[23] includes the following.

45-3-103.[24] Use of force in defense of occupied structure.

(1) A person is justified in the use of force or threat to use force against another when and to the extent that the person reasonably believes that the use of force is necessary to prevent or terminate the other person’s unlawful entry into or attack upon an occupied structure.

(2) A person justified in the use of force pursuant to subsection (1) is justified in the use of force likely to cause death or serious bodily harm only if:

(a) the entry is made or attempted and the person reasonably believes that the force is necessary to prevent an assault upon the person or another then in the occupied structure; or

(b) the person reasonably believes that the force is necessary to prevent the commission of a forcible felony in the occupied structure.

[edit]New Mexico

Section 30-2-7A NMSA 1978 provides that a homicide is justifiable when committed in the necessary defense of property. Although this statute has been a part of New Mexico law since 1907, the New Mexico appellate courts have never given the statute a broad interpretation. The New Mexico courts have consistently held, not always referring to the statute, that one cannot defend his property, other than his habitation, from a mere trespass to the extent of killing the aggressor. State v. McCracken, 22 N.M. 588, 166 P. 1174 (1917); State v. Martinez, 34 N.M. 112, 278 P. 210 (1929); State v. Couch, 52 N.M. 127, 193 P.2d 405 (1946).

[edit]New York

New York’s justification statute dates from 1968 and allows deadly force to be used in a number of circumstances. Under Penal Law § 35.15, in general, deadly force may be used as necessary to defend against unlawful deadly force used by another. Retreat is required when one knows it can be done with complete personal safety to innocent parties. Even then, no retreat is required when a person is in his dwelling and not the initial aggressor, or is defending against kidnapping, forcible rape, forcible criminal sexual act or robbery, or is preventing arson or is terminating a burglary or attempted burglary of an occupied building as allowed by Penal Law § 35.20.

§ 35.15 Justification; use of physical force in defense of a person 1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless: (a) The latter’s conduct was provoked by the actor with intent to cause physical injury to another person; or (b) The actor was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or (c) The physical force involved is the product of a combat by agreement not specifically authorized by law. 2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless: (a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is: (i) in his or her dwelling and not the initial aggressor; or (ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter’s direction, acting pursuant to section 35.30; or (b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or (c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.

§ 35.20 Justification; use of physical force in defense of premises and in defense of a person in the course of burglary 1. Any person may use physical force upon another person when he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of a crime involving damage to premises. Such person may use any degree of physical force, other than deadly physical force, which he or she reasonably believes to be necessary for such purpose, and may use deadly physical force if he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of arson. 2. A person in possession or control of any premises, or a person licensed or privileged to be thereon or therein, may use physical force upon another person when he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of a criminal trespass upon such premises. Such person may use any degree of physical force, other than deadly physical force, which he or she reasonably believes to be necessary for such purpose, and may use deadly physical force in order to prevent or terminate the commission or attempted commission of arson, as prescribed in subdivision one, or in the course of a burglary or attempted burglary, as prescribed in subdivision three. 3. A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.

[edit]North Carolina

On December 1st, 2011, North Carolina’s new law regarding the use of deadly force against an intruder took effect, extending the use of deadly force to motor vehicles and places of work. The law also eliminates the duty to retreat and provides protection from criminal and civil liability.[25]

§14-51.2. Home, workplace, and motor vehicle protection; presumption of fear of death or serious bodily harm.

(a) The following definitions apply in this section:
(1) Home. – A building or conveyance of any kind, to include its curtilage, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed as a temporary or permanent residence.
(2) Law enforcement officer. – Any person employed or appointed as a full-time, part-time, or auxiliary law enforcement officer, correctional officer, probation officer, post-release supervision officer, or parole officer.
(3) Motor vehicle. – As defined in G.S. 20-4.01(23).
(4) Workplace. – A building or conveyance of any kind, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, which is being used for commercial purposes.
(b) The lawful occupant of a home, motor vehicle, or workplace is presumed to have held a reasonable fear of imminent death or serious bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or serious bodily harm to another if both of the following apply:
(1) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a home, motor vehicle, or workplace, or if that person had removed or was attempting to remove another against that person’s will from the home, motor vehicle, or workplace.
(2) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
(c) The presumption set forth in subsection (b) of this section shall be rebuttable and does not apply in any of the following circumstances:
(1) The person against whom the defensive force is used has the right to be in or is a lawful resident of the home, motor vehicle, or workplace, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person.
(2) The person sought to be removed from the home, motor vehicle, or workplace is a child or grandchild or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used.
(3) The person who uses defensive force is engaged in, attempting to escape from, or using the home, motor vehicle, or workplace to further any criminal offense that involves the use or threat of physical force or violence against any individual.
(4) The person against whom the defensive force is used is a law enforcement officer or bail bondsman who enters or attempts to enter a home, motor vehicle, or workplace in the lawful performance of his or her official duties, and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties.
(5) The person against whom the defensive force is used (i) has discontinued all efforts to unlawfully and forcefully enter the home, motor vehicle, or workplace and (ii) has exited the home, motor vehicle, or workplace.
(d) A person who unlawfully and by force enters or attempts to enter a person’s home, motor vehicle, or workplace is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
(e) A person who uses force as permitted by this section is justified in using such force and is immune from civil or criminal liability for the use of such force, unless the person against whom force was used is a law enforcement officer or bail bondsman who was lawfully acting in the performance of his or her official duties and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties.
(f) A lawful occupant within his or her home, motor vehicle, or workplace does not have a duty to retreat from an intruder in the circumstances described in this section.
(g) This section is not intended to repeal or limit any other defense that may exist under the common law.

Ҥ 14-51.3. Use of force in defense of person; relief from criminal or civil liability.

(a) A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that the conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat in any place he or she has the lawful right to be if either of the following applies:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another.
(2) Under the circumstances permitted pursuant to G.S. 14-51.2.
(b) A person who uses force as permitted by this section is justified in using such force and is immune from civil or criminal liability for the use of such force, unless the person against whom force was used is a law enforcement officer or bail bondsman who was lawfully acting in the performance of his or her official duties and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties.

Ҥ 14-51.4. Justification for defensive force not available.

The justification described in G.S. 14-51.2 and G.S. 14-51.3 is not available to a person who used defensive force and who:
(1) Was attempting to commit, committing, or escaping after the commission of a felony.
(2) Initially provokes the use of force against himself or herself. However, the person who initially provokes the use of force against himself or herself will be justified in using defensive force if either of the following occur:
a. The force used by the person who was provoked is so serious that the person using defensive force reasonably believes that he or she was in imminent danger of death or serious bodily harm, the person using defensive force had no reasonable means to retreat, and the use of force which is likely to cause death or serious bodily harm to the person who was provoked was the only way to escape the danger.
b. The person who used defensive force withdraws, in good faith, from physical contact with the person who was provoked, and indicates clearly that he or she desires to withdraw and terminate the use of force, but the person who was provoked continues or resumes the use of force.”
[edit]Ohio

Ohio’s Senate Bill 184 (SB184) took effect September 9, 2008. This bill updated the Ohio Revised Code with sections pertaining to Castle Doctrine and other areas of the ORC that were known to be unclear.[26]

ORC 2307.601: No duty to retreat in residence or vehicle.

(A) As used in this section:

(1) “Residence” and “vehicle” have the same meanings as in section 2901.05 of the Revised Code.

(2) “Tort action” has the same meaning as in section 2307.60 of the Revised Code.

(B) For purposes of determining the potential liability of a person in a tort action related to the person’s use of force alleged to be in self-defense, defense of another, or defense of the person’s residence, if the person lawfully is in that person’s residence, the person has no duty to retreat before using force in self-defense, defense of another, or defense of that person’s residence, and, if the person lawfully is an occupant of that person’s vehicle or lawfully is an occupant in a vehicle owned by an immediate family member of the person, the person has no duty to retreat before using force in self-defense or defense of another.

Effective Date: 2008 SB184 09-09-2008

ORC 2901.05: Burden of proof – reasonable doubt – self-defense.

(B)(1) Subject to division (B)(2) of this section, a person is presumed to have acted in self defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.

Effective Date: 11-01-1978; 2008 SB184 09-09-2008

[edit]Oklahoma

In Oklahoma, castle doctrine legislation protects from prosecution a person who uses deadly force if that person “reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.” Law enforcement agencies must now have probable cause to believe that the use of deadly force was unlawful before an arrest can be made. The law protects defenders in dwellings or residences as well as in vehicles, explicitly rejects a duty to retreat, and provides protection from civil action as well, allowing judges to award defendants “attorney fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution”.[27]

Legislation enacted in 2011 extended castle doctrine protections to owners, managers, and employees of businesses using force against an intruder when there is reasonable fear of imminent peril of death or great bodily harm. [28]

[edit]Pennsylvania

On Tuesday, June 28, 2011, Pennsylvania (PA) Governor Tom Corbitt (R) signed a bill extending that state’s traditional castle doctrine protections to assaults outside the home. The new legislation passed both houses with overwhelming support and expands the state’s castle doctrine and stand-your-ground protections to allow the right to use a gun or other deadly force in self-defense in situations outside a person’s home or business.[29] It applies when “deadly force is immediately necessary to protect […] against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat”.[30]

It explicitly denies a duty to retreat and provides legislative protection from civil actions resulting from the use of deadly force in acts of self-defense. The PA General Assembly found that:

(1) It is proper for law-abiding people to protect themselves, their families and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others.

(2) The Castle Doctrine is a common law doctrine of ancient origins which declares that a home is a person’s castle.

(3) Section 21 of Article I of the Constitution of Pennsylvania guarantees that the “right of the citizens to bear arms in defense of themselves and the State shall not be questioned.”

(4) Persons residing in or visiting this Commonwealth have a right to expect to remain unmolested within their homes or vehicles.

(5) No person should be required to surrender his or her personal safety to a criminal, nor should a person be required to needlessly retreat in the face of intrusion or attack outside the person’s home or vehicle.[30]

While the findings specifically mention a defendant’s home or vehicle, the amendments to state code enumerated by this legislation extend to any place that a person has a legal right to be, with a few notable exceptions (such as inside a prison).

[edit]Utah

Utah has historically adhered to the principles of “stand your ground” without the need to resort to new legislation. The use of deadly force to defend persons on one’s own property is specifically permitted by Utah state law. The law specifically states that a person does not have a duty to retreat[31] from a place where they have lawfully entered or remained.

[edit]Washington

The statute in Washington state appears to be very simply and broadly stated.[32]

The law allows use of deadly force in the lawful defense of oneself, a family member, or any other person, when there is reasonable ground to prevent action(s) of the person slain to commit a felony or to do injury or harm, and there is imminent danger of such design being accomplished; or in the actual resistance of an attempt to commit a felony upon the slayer, on those in their presence, or upon or in a dwelling, or other place of abode, in which they are.

Washington state doesn’t have a specific Castle Doctrine law, but has no duty to retreat as precedent was set when the State Supreme Court found “that there is no duty to retreat when a person is assaulted in a place where he or she has a right to be.”[33][34]

[edit]West Virginia

§55-7-22 of the Code of West Virginia

(a) A lawful occupant within a home or other place of residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the home or residence or to terminate the intruder’s or attacker’s unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.

(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder or attacker in the circumstances described in subsection (a) of this section.

(c) A person not engaged in unlawful activity who is attacked in any place he or she has a legal right to be outside of his home or residence may use reasonable and proportionate force against an intruder or attacker: Provided, That such person may use deadly force against an intruder or attacker in a place that is not his residence without a duty to retreat if the person reasonably believes that he or she or another is in imminent danger of death or serious bodily harm from which he or she or another can only be saved by the use of deadly force against the intruder or attacker.

(d) The justified use of reasonable and proportionate force under this section shall constitute a full and complete defense to any civil action brought by an intruder or attacker against a person using such force.

(e) The full and complete civil defense created by the provisions of this section is not available to a person who: (1) Is attempting to commit, committing or escaping from the commission of a felony; (2) Initially provokes the use of force against himself or another with the intent to use such force as an excuse to inflict bodily harm upon the assailant; or (3) Otherwise initially provokes the use of force against himself or another, unless he or she withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

(f) The provisions of this section do not apply to the creation of a hazardous or dangerous condition on or in any real or personal property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct.[35]

[edit]Wisconsin

A Wisconsin “Castle Doctrine” bill, 2011 Assembly Bill 69, passed the Senate on Thursday, Nov 3, 2011 and the Assembly on Friday, Nov 4, 2011; Governor Scott Walker signed the bill on December 7,2011. The bill creates an automatic presumption of immunity for an act of self-defense for any person who uses deadly force while in his residence, motor vehicle, or place of business and is not engaged in illegal activity. The bill also limits civil liability when someone uses deadly force as outlined in the bill.

[edit]Origins

According to Matthew Henry’s—and others’—understanding of the Torah, the prohibition of murder made an exception for legitimate self-defense. A home defender who struck and killed a thief caught in the act of breaking in at night was not guilty of bloodshed. “If a thief is caught breaking in and is struck so that he dies, the defender is not guilty of bloodshed; but if it happens after sunrise, he is guilty of bloodshed.”[36]

A man’s house is his castle, and God’s law, as well as man’s, sets a guard upon it; he that assaults it does so at his peril.

— Matthew Henry’s Commentary on Exodus 22

The American interpretation of this doctrine is largely derived from the English Common Law as it stood in the 18th century. In Book 4, Chapter 16[37] of William Blackstone‘s Commentaries on the Laws of England, he states that the laws “leave him (the inhabitant) the natural right of killing the aggressor (the burglar)” and goes on to generalize in the following words:

And the law of England has so particular and tender a regard to the immunity of a man’s house, that it stiles it his castle, and will never suffer it to be violated with immunity: agreeing herein with the sentiments of ancient Rome, as expressed in the works of Tully;[38] quid enim sanctius, quid omni religione munitius, quam domus unusquisque civium?[39] For this reason no doors can in general be broken open to execute any civil process; though, in criminal causes, the public safety supersedes the private. Hence also in part arises the animadversion of the law upon eaves-droppers, nusancers, and incendiaries: and to this principle it must be assigned, that a man may assemble people together lawfully without danger of raising a riot, rout, or unlawful assembly, in order to protect and defend his house; which he is not permitted to do in any other case.

Not only was the doctrine considered to justify defense against neighbors and criminals, but any of the crown’s agents who attempted to enter without a proper warrant as well. It should be noted that prohibitions of the Fourth Amendment to the United States Constitution share a common background with current castle doctrine laws.

[edit]State-by-state positions

For the states with a Castle Doctrine, an external link is provided to the text of the specific statute, if available. If a direct link is unavailable, for example if the destination website uses JavaScript, the statute name and/or number is listed.

This list was last verified to be current on June 21, 2008.

[edit]States with a Stand-your-ground Law

No duty to retreat, regardless of where attack takes place.

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  • Alabama
  • Arizona
  • Florida
  • Georgia
  • Indiana
  • Kentucky [40]
  • Louisiana
  • Montana
  • Nevada
  • New Hampshire(A proposed law was vetoed in 2011, but the veto was overridden and the new law took effect November 2011.)[41][42]
  • Oklahoma Title 21§1289.25
  • Pennsylvania(Recent legislation extends Castle Doctrine to occupied vehicles and the work place, and stand-your-ground rights extended to anyplace the defender has a right to be, with specified exceptions.)
  • South Carolina (Persons not “required to needlessly retreat.”)
  • Tennessee 2007 Tenn. Pub. Acts Ch. 210 (Amends Tenn. Code. Ann. § 39-11-611)
  • Texas
  • Utah
  • Washington (Homicide justifiable in the lawful defense of self or other persons present; and there is imminent danger of such design being accomplished …or in the actual resistance of an attempt to commit a felony… or upon or in a dwelling, or other place…)

[edit]States with a Castle Law

No duty to retreat if in the home.

  • Alaska – Alaska Statute 11.81.335(b) provides that an individual has no duty to retreat before using deadly force if they are in their home, their workplace, protecting a child or protecting a family member. The 27th Alaska Legislature is currently considering H.B. 80 “An Act relating to self defense in any place where a person has a right to be.” which would essentially eliminate the duty to retreat for any place a person is legally, making Alaska a “stand your ground” state. However, an identical measure, H.B. 381, failed to pass the 26th Alaska Legislature.
  • California California Penal Code § 198.5 sets forth that unlawful, forcible entry into one’s residence by someone not a member of the household creates the presumption that the resident held a reasonable fear of imminent peril of death or great bodily injury should he or she use deadly force against the intruder. This would make the homicide justifiable under CPC § 197.[43] CALCRIM 506 gives the instruction, “A defendant is not required to retreat. He or she is entitled to stand his ground and defend himself and, if reasonably necessary, to pursue an assailant until the danger … has passed. This is so even if safety could have been achieved by retreating.” However, it also states that “[People v. Ceballos] specifically held that burglaries which ‘do not reasonably create a fear of great bodily harm’ are not sufficient ’cause for exaction of human life.’” The court held that because the defendant had constructed a gun-firing trap, the doctrine did not apply. [44]
  • Colorado “…any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.” 18-1-704.5 Use of deadly physical force against an intruder.
  • Connecticut
  • Georgia (a person who is attacked has no duty to retreat; […] has a right to meet force with force, including deadly force;)
  • Hawaii (Retreat required outside the home if it can be done in “complete safety.”)
  • Illinois (Use of deadly force justified. Specific legislation prevents filing claim against defender of dwelling. Illinois has no requirement of retreat.)
  • Kansas (§ 21-3212. Use of force in defense of dwelling; no duty to retreat.)
  • Maine (Deadly force justified to terminate criminal trespass AND another crime within home, or to stop unlawful and imminent use of deadly force, or to effect a citizen’s arrest against deadly force; duty to retreat not specifically removed)[45]
  • Maryland See Maryland self-defense (Case-law, not statute, incorporates the commonlaw castle-doctrine into Maryland self-defense law. Invitees or guests may have duty to retreat based on mixed case law.)
  • Massachusetts
  • Michigan (more recent law—Act 309 of 2006—does not relieve duty to retreat unless the individual honestly and reasonably believes that deadly force is necessary to prevent imminent death or imminent great bodily harm or imminent sexual assault to himself or herself or to another individual.) [46]
  • Minnesota No duty to retreat before using deadly force to prevent a felony in one’s place of abode; no duty to retreat before using deadly force in self defense in one’s place of abode [47]) This isn’t as clear as it appears, however. There are four cases in Minnesota where duty of retreat was upheld.[48]
  • Mississippi (to use reference, select “Code of 1972” and search “retreat”)
  • Missouri (Extends to any building, inhabitable structure, or conveyance of any kind, whether the building, inhabitable structure, or conveyance is temporary or permanent, mobile or immobile (e.g., a camper, RV or mobile home), which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night, whether the person is residing there temporarily, permanently or visiting (e.g., a hotel or motel), and any vehicle. The defense against civil suits is absolute and includes the award of attorney’s fees, court costs, and all reasonable expenses incurred by the defendant in defense of any civil action brought by a plaintiff.)
  • Nevada
  • New Jersey (“Statutes” link in sidebar, see New Jersey Statutes 2C:3-4, retreat required if actor knows he can avoid necessity of deadly force in complete safety, etc. EXCEPT not obliged to retreat from dwelling, unless the initial aggressor)
  • North Carolina (Includes dwelling, motor vehicle and workplace)
  • North Dakota
  • Ohio (Extends to vehicles of self and immediate family; effective September 9, 2008.[49] Section 2901.09)
  • Oregon. (ORS 161.209-229. Use of force justifiable in a range of scenarios without a duty to retreat specified. Oregon Supreme Court affirmed in State of Oregon v. Sandoval that the law “sets out a specific set of circumstances that justify a person’s use of deadly force (that the person reasonably believes that another person is using or about to use deadly force against him or her) and does not interpose any additional requirement (including a requirement that there be no means of escape).”)
  • Pennsylvania
  • Rhode Island
  • Utah
  • West Virginia (Senate bill 145 signed March 12, 2008. WV code §55-7-22)
  • Wyoming

[edit]States with weak or no specific Castle Law

These states uphold castle doctrine in general, but may rely on case law instead of specific legislation, may enforce a duty to retreat, and may impose specific restrictions on the use of deadly force.

  • Idaho (Homicide is justified if defending a home from “tumultuous” entry; duty to retreat not specifically removed)
  • South Dakota “Homicide is justifiable if committed by any person while resisting any attempt to murder such person, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is.” SD Codified Laws 22-16-34 (2005).
  • Iowa ([50])
  • Nebraska
  • New Mexico
  • Virginia
  • Vermont
  • District of Columbia

[edit]Notable cases

On December 31, 2011, eighteen year-old Sarah McKinley, a recent widow and mother of a three month-old baby living in Blanchard, Oklahoma, received international media attention after she killed a knife wielding man who had broken into her home. Prior to the shooting, McKinley called 911 and said, “I’ve got two guns in my hand. Is it OK to shoot him if he comes in this door?” The 911 operator responded by saying, “Do what you have to do to protect your baby.”[51] A second burglar, upon hearing the gunshot, fled the property, was later arrested, and is being charged with first degree murder.[52] Because McKinley acted in self defense, she was not charged, with Oklahoma’s castle doctrine law cited as one reason.[53]

[edit]In other countries

Many countries implement laws and regulations equivalent to the US “Castle Doctrine”, but without using this term.

Origin of term and England. The term “castle doctrine” originates in the English expression “an Englishman’s home is his castle”[54], mostly used not in a context of self-defence against intruders, but meaning that if someone knocks at the door saying “Open in the name of the King!” an ordinary defenceless householder has the same right as the lord of a fortified castle to respond “You may not enter without a search warrant“, and expect this to be upheld, a big issue when monarchs had great power.

While not referred to as a “castle doctrine”, use of “reasonable force” against an unlawful intruder is unlikely to be penalised; it is up to a jury to determine whether force used was reasonable. The common law principle regulating self-defence in general has been formulated as “A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. It must be reasonable.” A man who killed an intruder into his house after being repeatedly burgled, by firing birdshot towards burglars in the dark when they were trying to flee, was found guilty of murder; defendants in other cases have not been prosecuted, or found not guilty of any crime by a jury.

Israel passed a law, commonly known as the ‘Dromi Law’, defining opposition to intruders as legitimate self-defence in response to the trial of Shai Dromi, a farmer who shot intruders on his farm late at night.[55]

Italy passed a “Castle Doctrine” style law in 2005.[56]

[edit]See also

[edit]Related sayings

[edit]Notes

  1. a b “Assembly, No. 159, State of New Jersey, 213th Legislature, The “New Jersey Self Defense Law””. May 6, 2008. Retrieved 2009-03-19. “The “Castle Doctrine” is a long-standing American legal concept arising from English Common Law that provides that one’s abode is a special area in which one enjoys certain protections and immunities, that one is not obligated to retreat before defending oneself against attack, and that one may do so without fear of prosecution.”
  2. a b “An Englishman’s home is his castle”. Phrases.org.uk. Retrieved 2012-01-11.
  3. ^ Philip Johnston. “An Englishman’s home is no longer his castle”. Telegraph. Retrieved 2012-01-11.
  4. ^ Dirk Johnson (June 1, 1990). “‘Make My Day’: More Than a Threat”. New York Times. Retrieved 2008-06-27.
  5. ^ Rhinehart, C, Castle Doctrine and Self-DefenseConnecticut General Assembly, Office of Legislative Research.
  6. ^ Florida Statutes Title XLVI Chapter 776
  7. ^ Kopel DB: “The Self-Defense Cases,” 2000
  8. ^ Beard v. United States, 158 U.S. 550 (1895)
  9. ^ p.19 Brown, Richard Maxwell No Duty to Retreat: Violence and Values in American History and Society Oxford University Press 1991
  10. ^ p.36 ibid
  11. ^ Ala. Code 13A-3-23(b): “A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his ground.”
  12. ^ “11-8-8”. Rilin.state.ri.us. Retrieved 2012-01-11.
  13. ^ 76-2-405. Force in defense of habitation, Utah criminal Code.
  14. ^ Castle Doctrine Bill Scheduled to be Heard in Committee Next Week in Nebraska!, National Rifle Association, January 29, 2010.
  15. ^ Fortifying The Right To Self-Defense, National rifle Association, February 26, 2006.
  16. ^ Castle Doctrine: Protecting Our Right to Self-Defense(map showing states which have enacted a Castle Doctrine law), National Rifle Association.
  17. ^ “States allow deadly self-defense” by Richard Willing,USAToday, March 20, 2006, retrieved April 4, 2006
  18. ^ See State v. Cain, 20 W.Va. 679 (1882); State v. Laura, 93 W.Va. 250, 116 S.E. 251 (1923); State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927); State v. Preece, 116 W.Va. 176, 179 S.E. 524 (1935); State v. Bowyer, 143 W.Va. 302, 101 S.E.2d 243 (1957); State v. Green, 157 W.Va. 1031, 206 S.E.2d 923 (1974); State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978);State v. W.J.B., 166 W.Va. 602, 276 S.E.2d 550 (1981)
  19. ^ delaware.gov
  20. ^ “Ind. Code § 35-41-3-2 : Indiana Code – Section 35-41-3-2: Use of force to protect person or property”. Codes.lp.findlaw.com. Retrieved 2012-01-11.
  21. ^ Montana Code Annotated 2009 (MCA 2009), Includes Ballot Issues Adopted at the General Election held November 2, 2010, and accessed December 25, 2010.
  22. ^ MCA 2009 Title 45. CRIMES, accessed December 25, 2010.
  23. ^ MCA 2009 Title 45. CRIMES, CHAPTER 3. JUSTIFIABLE USE OF FORCE, accessed December 25, 2010.
  24. ^ MCA 2009 45-3-1-103 Use of force in defense of occupied structure, accessed December 25, 2010.
  25. ^ “SESSION LAW 2011-268 HOUSE BILL 650”. GENERAL ASSEMBLY OF NORTH CAROLINA SESSION 2011. Retrieved 7 February 2012.
  26. ^ http://www.buckeyefirearms.org/node/5973
  27. ^http://ftpcontent.worldnow.com/griffin/NEWSon6/PDF/0912/2615.pdf
  28. ^ “Oklahoma Castle Doctrine Expansion Bill Took Effect Today!”. Nra-Ila. 2011-11-01. Retrieved 2012-01-11.
  29. ^ The Associated Press. “Corbett signs ‘castle doctrine’ bill expanding right to use deadly force in self-defense”. PennLive.com. Retrieved 2012-01-11.
  30. a b “Regular Session 2011-2012 House Bill 40 P.N. 1038”. Legis.state.pa.us. Retrieved 2012-01-11.
  31. ^ Utah Code, title 76, chapter 2, section 402 “Force in defense of person—Forcible felony defined”, paragraph 3
  32. ^ “Homicide; by other person; when justifiable. Revised Code of Washington 9A.16.050″. Washington state legislature.. 1975.
  33. ^ 137 Wn.2d 533 State of Washington v. Studd; Decided 1999/04/01.
  34. ^ 150 Wn.2d 489 State of Washington v. Reynaldo Redmond; Decided 2003/12/06.
  35. ^ Senate Bill No. 145, Legislature of West Virginia.
  36. ^ Exodus 22:2-3
  37. ^ Blackstone’s Commentaries – Book the Fourth – Chapter the Sixteenth : Of Offenses Against the Habitations of Individuals
  38. ^ “Tully” is a common abbreviation for Marcus Tullius Cicero.
  39. ^ What more sacred, what more strongly guarded by every holy feeling, than a man’s own home?
  40. ^ “Kentucky Revised Statutes, Chapter 503”. Kentucky Legislative Research Commission. Retrieved 2012-01-11.
  41. ^ .http://www.boston.com/news/local/new_hampshire/articles/2011/09/14/nh_house_passes_bill_to_expand_deadly_force/.[dead link]
  42. ^ [1][dead link]
  43. ^ “Microsoft Word – IX Self-defense.doc” (PDF). Retrieved 2012-01-11.
  44. ^ default user. “calceballos”. Wings.buffalo.edu. Retrieved 2012-01-11.
  45. ^ Physical force justification
  46. ^ “Michigan Legislature – Act 309 of 2006”. Legislature.mi.gov. 2006-10-01. Retrieved 2012-01-11.
  47. ^ “State of Minnesota v. Glowacki, 630 N.W.2d 392, 402 (Minn. 2001)”.
  48. ^ “No. C8-98-86. – STATE v. CAROTHERS – MN Court of Appeals”. Caselaw.findlaw.com. Retrieved 2012-01-11.
  49. ^ “Senate Bills – Status Report of Legislation, SB 184”. Retrieved 2008-08-09.
  50. ^ DEFENSE OF PROPERTY., Iowa State Legislature.
  51. ^ No charges for US widow Sarah McKinley who killed intruder, BBC, January 5, 2012
  52. ^ Okla. mom Sarah McKinley won’t face charges for shooting intruder, CBS News, January 5, 2012
  53. ^ Oklahoma mom kills home invader: Why the law was on her side, Christian Science Monitor, January 5, 2012
  54. ^ The phrase finder: discussion of the history of “an Englishman’s home is his castle”
  55. ^ Stoil, Rebecca Anna (24 June 2008). “New law allows shooting at burglars”. The Jerusalem Post. Retrieved 15 July 2009.
  56. ^ Italy approves self-defence law , BBCX, January 24, 2006

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