Castle Doctrine in the US
This article is licensed under the GNU Free Documentation License. It uses material from the Wikipedia article "Castle_Doctrine_in_the_US".

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. The term "Make My Day Law" comes from the landmark 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.^[1] The law's nickname is a reference to the famous line uttered by Clint Eastwood's character Dirty Harry in the 1983 film Sudden Impact, "Go ahead, make my day."

This legal doctrine is often linked to the rights of homeowners to bear arms, as defined in the Second Amendment of the U.S. Constitution in the case of District of Columbia v. Heller.

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 unlawfully and/or forcibly enter an occupied home, business or car.
• 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
• 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, 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.

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, property damage, 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. In addition, someone who fires in self-defense is still liable for any damages or injuries to third parties who were not acting criminally at the time of the shooting.

Duty-to-retreat

"Castle laws" remove the duty to retreat from an illegal intruder when one is lawfully in one's home.^[2] Therefore, any state that imposes a duty to retreat while in the home does not have a "Castle law": the duty-to-retreat clause 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.

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 shooter 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 shooter may legally be.^[3] 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."^[4][5]

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:

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.^[7]

Expansion to other states

Since the enactment of the Florida legislation, Alabama,^[8] 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.^[9][10][11]

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^[12] 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.^[13] The law specifically states that a person does not have a duty to retreat^[14] 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.

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.

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.

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).

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^[15] of William Blackstone's Commentaries on the Laws of England, he says:

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 June 21, 2008.

States with a Stand-your-ground Law

No duty to retreat anywhere.

This section may require cleanup to meet Wikipedia's quality standards. Please improve this article if you can. (August 2007)

• Alabama
• Arizona
• Florida
• Georgia
• Indiana
• Kentucky
• Louisiana
• Mississippi (to use reference, select "Code of 1972" and search "retreat")
• Oklahoma §21-1289.25
• South Carolina (Persons not "required to needlessly retreat.")
• Texas
• Tennessee 2007 Tenn. Pub. Acts Ch. 210 (Amends Tenn. Code. Ann. § 39-11-611)

States with a Castle Law

No duty to retreat if in the home.

• Alaska
• Colorado (Colorado Revised Statutes Section 18-1-704.5 Use of deadly physical force against an intruder.)
• Connecticut
• Hawaii (Retreat required ouside the home if it can be done in "complete safety.")
• Maine (Deadly force justified to teminate criminal trespass AND another crime within home; duty to retreat not specifically removed)
• Maryland See Maryland self-defense (Case-law, not statute, seems to have incorporated the castle-doctrine into Maryland self-defense law.)
• Massachusetts
• Michigan (more recent law--Act 309 of 2006--does not relieve duty to retreat "unless [deadly force is] necessary to prevent imminent death;" this represents no change from common law, which does not require retreat unless it can be safely done)
• Missouri (Extends Castle Doctrine to one's vehicle)
• Ohio (Extends to vehicles of self and immediate family; effective September 8th, 2008. Section 2901.09
• New Jersey ("Statues" link in sidebar, see New Jersey Statues 2C:3-4, retreat required outside home if actor knows he can avoid necessity of deadly force in complete safety, etc.)
• North Carolina
• Rhode Island
• West Virginia
• Wyoming

States with weak Castle Law

The duty to retreat is not removed, but deadly force may be used to end invasion of home without presence of immediate lethal threat.

• Idaho (Homicide is justified if defending a home from "tumultuous" entry; duty to retreat not specifically removed)
• Illinois (Use of deadly force is justified if defending a home from "tumultuous" entry; duty to retreat not specifically removed)
• Kansas (§ 21-3212. Use of force in defense of dwelling. A person is justified in the use of force against another when and to the extent that it appears to him and he reasonably believes that such conduct is necessary to prevent or terminate such other's unlawful entry into or attack upon his dwelling.)
• Minnesota (Homicide justified to prevent the commission of a felony in the home)
• Montana (Deadly force justified to prevent felony in the home)
• Utah
• Washington

States with no known Castle Law

• Iowa (Law does not require retreat from home, but may require retreat within the home)
• Pennsylvania (Relevant statute not found; "Stand your ground" legislation pending^[17])
• Virginia

NB: Above sections provide detail finding for 36 states only. Some sources list 16 states as having "Stand your ground laws" ^[18][19]; but review of the statues does not make it clear that all listed states have eliminated the duty to retreat outside the home.

References