Castle doctrine

A castle doctrine (also known as a castle law or a defense of habitation law) is a legal doctrine that designates a person's abode (or, in some states, any legally-occupied place [e.g., a vehicle or workplace]) as a place in which that person has certain protections and immunities permitting him or her, in certain circumstances, to use force (up to and including deadly force) to defend themselves against an intruder, free from legal responsibility/prosecution for the consequences of the force used.^[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 him or herself 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 many states.

The legal concept of the inviolability of the home has been known in Western Civilization since the age of the Roman Republic.^[2] 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 his The Institutes of the Laws of England, 1628.^[3] The dictum was carried by colonists to the New World, who later removed "English" from the phrase, making it "a man's home is his castle", which thereby became simply the castle doctrine.^[3] The term has been used in England to imply a person's absolute right to exclude anyone from his home, although this has always had restrictions, and since the late twentieth century bailiffs have also had increasing powers of entry.^[4]

Another term, the "Make My Day Law", arose in the USA at the time of the 1985 Colorado statute that shielded people from any criminal/civil suits for using force – including deadly force – against an invader of the home.^[5] The law's nickname is a reference to the line "Go ahead, make my day" uttered by actor Clint Eastwood's character "Dirty Harry" Callahan (in the 1983 police film Sudden Impact).

Justifiable homicide^[6] inside one's home is distinct, as a matter of law, from castle doctrine's no duty to retreat therefrom. Because the mere occurrence of trespassing—and occasionally a subjective requirement of fear—is sufficient to invoke the castle doctrine, the burden of proof of fact is much less challenging than that of justifying a homicide. With a mere justifiable homicide law, one generally must objectively prove to a trier of fact, beyond all reasonable doubt, the intent in the intruder's mind to commit violence or a felony. It would be a misconception of law to infer that because a state has a justifiable homicide provision pertaining to one's domicile, it has a castle doctrine, exonerating any duty whatsoever to retreat therefrom.

The use of this legal principle in the USA has been a matter of international controversy in relation to a number of cases, including the deaths of the Japanese exchange student Yoshihiro Hattori and the Scottish businessman Andrew de Vries.

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 an attempt (or have made) an attempt to unlawfully or forcibly enter an occupied residence, business, or vehicle.
• The intruder must be acting unlawfully (the castle doctrine does not allow a right to use force against officers of the law, acting in the course of their legal duties).
• The occupant(s) of the home must reasonably believe the intruder intends to inflict serious bodily harm or death upon an occupant of the home. Some states apply the Castle Doctrine if the occupant(s) of the home reasonably believe the intruder intends to commit a lesser felony such as arson or burglary.
• The occupant(s) of the home must not have provoked or instigated an intrusion; or, provoked/instigated an intruder's threat or use of deadly force.

In all cases, the occupant(s) of the home: must be there legally; must not be fugitives from the law, themselves, or, aiding/abetting other fugitives; and, must not use force upon an officer of the law performing a legal duty^{[citation needed]}.

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 civil lawsuits filed on behalf of the assailant (for damages/injuries resulting from the force used to stop them). Without this clause, an assailant could sue for medical bills, property damage, disability, and pain & suffering as a result of the injuries inflicted by the defender; or, if the force results in the assailant's death, his/her next-of-kin or estate could launch a wrongful death suit. Even if successfully rebutted, the defendant (the homeowner/defender) may still have to pay high legal costs leading up to the suit's dismissal. Without criminal/civil immunity, such civil action could be used as revenge against a lawfully-acting defender (who was, originally, the assailant's victim).

Use of force in self-defense which causes damage or injuries to other, non-criminally-acting parties, may not be shielded from criminal or civil prosecution, however.

Duty-to-retreat

"Castle laws" remove the duty to retreat before using deadly force when one is in their home or in some U.S. states just simply where one can legally be.^[7]

Stand-your-ground

In some states in the United States, one can use deadly force in any location one is legally allowed to be without first attempting to retreat. Such laws remove the requirement that the threat must occur on one's own dwelling.

Practice in the USA

According to 18th-century Presbyterian minister and biblical commentator Matthew Henry, the prohibition of murder found in the Old Testament contains 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 thief owes no blood-debt to the home-defender; but if the thief lives, he owes a blood-debt to the home-defender and must make restitution.”^[8][9]

By the 18th century, many US state legal systems began by importing English common law such as Acts of Parliament of 2 Ed. III (Statute of Northampton), and 5 Rich. II (Forcible Entry Act 1381) in law since 1381—which imposed criminal sanctions intending to discourage the resort to self-help.^[10][11] This required a threatened party to retreat, whenever property was "involved" and resolve the issue by civil means.

Then as now, there were English politicians who were for or against the use of self-help over state-help. William Blackstone, in Book 4, Chapter 16^[12] of his Commentaries on the Laws of England,^[13] proclaims 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;^[14] quid enim sanctius, quid omni religione munitius, quam domus uniusquisque civium?^[15] 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, nuisancers, 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.

—William Blackstone, Commentaries on the Laws of England

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.^{[citation needed]}

In 1841, The Preemption Act was passed to "appropriate the proceeds of the sales of public lands... and to grant 'pre-emption rights' to individuals" who were already living on federal lands (commonly referred to as "squatters"). During this same period, claim clubs sprung up all over the US advocating vigilance and the castle doctrine. This was in concurrence with the culture of manifest destiny which led to westward expansion and the American Indian Wars, the last of which ended by the 1920s.

Today, the majority of American states have construed their statutes of forcible entry, both penal and civil, in such a manner as to abrogate the common law privilege to use force in the recovery of possession of land.^[16] A minority of states, however, have taken the view that their forcible entry statutes have not deprived a defendant with the right to immediate possession of land of his common law privilege to use reasonable force to regain possession thereof.^[17]

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.

States with a castle law

Castle doctrine lays down that there is no duty to retreat from an intruder in one's home. A justifiable homicide which occurs inside one's home is distinct as a matter of law from castle doctrine's no duty to retreat. As such, states with justifiable homicide provisions in pertaining to one's domicile, do not in themselves authorize indiscriminate violence therein—the mere fact that one is trespassing is no defense per se to justifying homicide.

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:

• District of Columbia
• Nebraska - a bill was introduced in January 2012 that allowed deadly force against a person who broke into a house or occupied vehicle or who tried to kidnap someone from a house or vehicle; however, the bill was revised to include only an affirmative defense from lawsuits pertaining to justifiable use of force.^[23]
• New Mexico
• 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." See South Dakota Codified Laws 22-16-34 (2005).^[24]
• Vermont^[25]

Outside the USA

Australia

Australian states have several differing laws. However, under South Australian law, the general defence appears in s15(1) Criminal Law Consolidation Act 1935 (SA) for defending a person's life, and s15A(1) for defending property, subject to a hybrid test, i.e. the defendant honestly believed the threat to be imminent and made an objectively reasonable and proportionate response to the circumstances as the accused subjectively perceived them.^[26]

In July 2003, the Rann Government (SA) introduced laws allowing householders to use "whatever force they deem necessary" when confronted with a home invader. Householders who kill or injure a home invader escape prosecution provided they can prove they had a genuine belief that it was necessary to do so to protect themselves or their family.

The law was strongly opposed by then-Director of Public Prosecutions Paul Rofe, QC, and lawyer Marie Shaw, who is now a District Court Judge.^[27]

England and Wales

In English common law a defendant may seek to avoid criminal or civil liability by claiming that he acted in self-defence.^[28] This requires the jury to determine whether the defendant believed that force was necessary to defend him or herself, his or her property, or to prevent a crime, and that the force used was reasonable.^[29] While there is no duty to retreat from an attacker and failure to do so is not conclusive evidence that a person did not act in self-defence, it may still be considered by the jury as a relevant factor when assessing the merits of a self-defence claim.^[28] The common law duty to retreat was repealed by the Criminal Law Act 1967. This duty never existed when a person is somewhere he has a lawful right to be, but due to the repeal, now extends to public places, etc.

Germany

German law allows self-defense against an unlawful attack.^[30] Courts have interpreted this law as applicable to home invasion, including the use of lethal force against law enforcement in cases where the home owner was of the mistaken belief that the intrusion was unlawful.^[31]

Israel

Israeli law allows property owners to defend themselves with force.^[32] This law was introduced in response to the trial of Shai Dromi, an Israeli farmer who shot Arab intruders on his farm late at night.^[33]

Italy

Italy passed a law in 2005 that would allow property owners to defend themselves with force.^[34]

See also

• Duty to retreat, obligation to withdraw rather than attack, sometimes overridden by castle doctrine
• Justifiable homicide, the blameless killing of a person, such as in self-defense.
• Stand-your-ground law, which applies the Castle doctrine to any place.
• Self-defence (Australia)
• Squatting in the United States
• Trespasser

History

• Claim club

Related sayings

• a man's home is his castle
• an Englishman's home is his castle

Notes