Castle Doctrine in the US

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A No Trespassing sign citing a Castle Law.
A No Trespassing sign citing a Castle Law.

A Castle Doctrine (also known as a Castle Law or a Defense of Habitation Law) is an American legal concept derived from English Common Law, which designates one's place of residence (or, in some states, any place legally occupied, such as one's car or place of work) as a place in which one enjoys protection from illegal trespassing and violent attack. It then goes on to give a person the legal right to use deadly force to defend that place (his/her "castle"), and/or any other innocent persons legally inside it, from violent attack or an intrusion which may lead to violent attack. In a legal context, therefore, use of deadly force which actually results in death may be defended as justifiable homicide under the Castle Doctrine.

Castle Doctrines are legislated by state, and not all states in the US have a Castle Doctrine. Outside of the United States, the Castle Doctrine is sometimes pejoratively referred to as a "Make My Day" law [1] [2], a reference to Dirty Harry.

Contents

[edit] Conditions of use

Each state differs with respect to the specific instances in which the Castle Doctrine can be invoked, and what degree of retreat or non-deadly resistance (if any) is required before deadly force can be used.

In general, one (sometimes more) of a variety of conditions must be met before a person can legally use the Castle Doctrine:

  • An intruder must be making (or have made) an attempt to forcibly enter a premises uninvited
  • The intruder must be acting illegally -- e.g. the Castle Doctrine does not give the right to shoot 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
  • The occupant(s) of the home must reasonably believe that the intruder intends to commit some other 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

In all cases, the occupant(s) of the home must be there legally, must not be fugitives from the law, must not be using the Castle Doctrine to aid or abet another person in being a fugitive from the law, and must not use deadly force upon an officer of the law or an officer of the peace while they are performing or attempting to perform their legal duties.

Note: the term "home" is used because most states only apply their Castle Doctrine to a place of residence; however, some states extend the protection to other legally-occupied places such as automobiles and places of business.

[edit] Immunity from civil lawsuit

In addition to providing a valid defense in criminal law, many versions of 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/injury resulting from the shootings. Without this clause, it is possible for an assailant to sue for medical bills, disability, and pain and suffering as a result of the injuries inflicted by the shooter, or for their next-of-kin to sue for wrongful death in the case of a shooting fatality. Even if successfully refuted, the defendant (the homeowner/shooter) must often pay thousands of dollars in legal costs as a result of such lawsuits, and thus without immunity, such civil action could be used for revenge against a shooter acting lawfully.

The only exceptions to this civil immunity are generally situations of excessive force, where the shooter fired on a subdued, cooperative, or disabled assailant. A situation meeting this exception generally invalidates the criminal "castle defense" as well.

[edit] Duty-to-retreat

Some states have a duty-to-retreat clause, which expressly imposes an obligation upon the home's occupants to retreat as far as possible and verbally announce their intent to use deadly force, before they can be legally justified in doing so to defend themselves.

For states that do not require the announcement to be "verbal", other indicators may be used. These are typically not defined by statute, and would be left to the court's interpretation, but may include things such as laser sights and warning shots.

[edit] Stand-your-ground

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Other states have a stand-your-ground clause, or no duty to retreat policy which expressly relieves 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. In states where Castle Law is included as a part of a larger personal-self-defense law, there may be a duty to retreat if the altercation happens in a place outside the home; even though there is no duty to retreat if the altercation happens at the home.

Stand-your-ground laws (sometimes called shoot-first laws by critics) are statutes that allow the use of deadly force to defend against forcible unlawful entry or attack. These bills significantly expand the boundaries of legal self-defense by eliminating a person's duty to retreat from an invader or assailant in certain cases before resorting to the use of "defensive force that is intended or likely to cause death or great bodily harm to another." [3]

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 men, armed with repeating rifles, face each other in an open space, removed from shelter, with intent to kill or cause great bodily harm[4]

Justice Oliver Wendell Holmes, Jr. declared in Brown v. United States when upholding the no duty to retreat maxim that detached reflection cannot be demanded in the presence of an uplifted knife.[5]

[edit] Expansion to other states

Since the enactment of the Florida legislation, Alabama[6], Alaska, Arizona, Georgia, Indiana, Kansas, Kentucky, Michigan, Mississippi, Missouri, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, and Texas have adopted similar statutes, and other states (Montana, New Hampshire, Pennsylvania, Washington, and Wyoming) are currently considering "Stand Your Ground" laws of their own. These statutes create a presumption of innocence for people who use deadly force whenever they are threatened with violence in their home, car, or place of business and also provide civil immunity from possible lawsuits arising from the use of force in these contexts. Links: 1 2.[7]

Some of the states that have passed or are considering "stand your ground" legislation already are considered "stand your ground" 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 future court rulings. Other states, including Washington and West Virginia[8] have "stand your ground" in their case law but have not adopted statutes. These states did not have civil immunity for self defense in their previous self defense statutes.

Utah has historically adhered to the principles of "stand your ground" without the need to refer to this new legislation. The use of deadly force to defend persons on one's own property is specifically permitted by Utah state law.[9] The law specifically states that a person does not have a duty to retreat[10] from a place where a person has lawfully entered or remained.

In Oklahoma (according to the Oklahoma State Courts Network), the amendment changes a number of other aspects of the Oklahoma Self Defense Act, the statutes concerning justifiable homicide. As 21 O.S. 2001, Section 1289.25 now lists circumstances in which it is presumed that a person who uses deadly force "reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.". In addition, it helps to protect law-abiding citizens from arrest when using deadly force. Law enforcement agencies must now have probable cause to believe that the use of deadly force was unlawful before an arrest can be made.

[edit] North Carolina

Use of deadly physical force against an intruder.

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

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

[edit] Delaware

Justification -- Use of force in self-protection.

(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] Origins

The American interpretation of this doctrine is largely derived from the English Common Law as it stood in the 1700s. In Book 4, Chapter 16[11] of William Blackstone's Commentaries on the Laws of England, he says:

“ 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; quid enim sanctius, quid omni religione munitius, quam domus unusquisque civium?[12] 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 principal 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. ”

[edit] State-by-state positions on Castle Doctrine

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 Java, the statute name and/or number is listed.

This list was last verified to be current on August 18, 2007.

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

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[edit] States with a Castle Law with Duty-to-retreat

[edit] States with no known Castle Law

Ohio. (However, the 127th Gen Assembly is considering "Castle" legislation under S.B. 184 and H.B. 264. 4/16/2008 - In its sixth (and final!) hearing on Ohio's Castle Doctrine legislation today, the Ohio Senate Judiciary Committee on Criminal Justice accepted yet another amended substitute HB184, passed the bill (Committee members Teresa Fedor and Shirley Smith - both Democrats - voted no, Senator Lance Mason, the third Democrat committee member, was absent). Just a few hours later, the full Senate took up consideration of the bill. It received 31 yeas, 0 nays. There are 33 members in the Senate.

[edit] References

  1. ^ Stuart P. Green. Don't 'make my day'. Haaretz. Retrieved on 2008-03-17.
  2. ^ Charles Laurence. How the 'Make My Day' law cut epidemic of violent burglary. The Telegraph. Retrieved on 2008-03-17.
  3. ^ Florida Statutes Title XLVI Chapter 776
  4. ^ p.19 Brown, Richard Maxwell No Duty to Retreat: Violence and Values in American History and Society Oxford University Press 1991
  5. ^ p.36 ibid
  6. ^ 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 or her ground."
  7. ^ "States allow deadly self-defense" by Richard Willing, USAToday, March 20, 2006, retrieved April 4, 2006
  8. ^ 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)
  9. ^ Utah Code, title 76, chapter 2, section 407 "Deadly force in defense of persons on real property"
  10. ^ Utah Code, title 76, chapter 2, section 402 "Force in defense of person -- Forcible felony defined", paragraph 3
  11. ^ Blackstone's Commentaries - Book the Fourth - Chapter the Sixteenth : Of Offenses Against the Habitations of Individuals
  12. ^ What more sacred, what more strongly guarded by every holy feeling, than a man's own home?