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 any legally occupied place (for example, a vehicle or home) as a place in which that person has protections and immunities permitting one, in certain circumstances, to use force (up to and including deadly force) to defend oneself against an intruder, free from legal prosecution for the consequences of the force used.[1] The term is most commonly used in the United States, though many other countries invoke comparable principles in their laws.

A person may have a duty to retreat to avoid violence if one can reasonably do so. Castle doctrines lessen the duty to retreat when an individual is assaulted within one's own home. Deadly force may either be justified, the burdens of production and proof for charges impeded, or an affirmative defense against criminal 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 castle doctrine is not a defined law that can be invoked, but a set of principles which may be incorporated in some form in many jurisdictions. Castle doctrines may not provide civil immunity, such as from wrongful death suits, which have a much lower burden of proof.

Justifiable homicide[2] in self-defense which happens to occur inside one's home is distinct, as a matter of law, from castle doctrine 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 in self-defense. With justifiable homicide in self-defense, one generally must objectively prove to a trier of fact, against 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 in self-defense provision pertaining to one's domicile, it has a castle doctrine protecting the estate and exonerating any duty whatsoever to retreat therefrom. The doctrine can be misused as a pretext for extrajudicial punishment in private spaces. The use of this legal principle in the United States has been controversial in relation to a number of cases in which it has been invoked, including the deaths of Japanese exchange student Yoshihiro Hattori and Scottish businessman Andrew de Vries.

History

The legal concept of the inviolability of the home has been known in Western civilization since the age of the Roman Republic.[3] In English common law the term is derived from the dictum that "an Englishman's home is his castle" (see Semayne's case). This concept was established as English law by the 17th century jurist Sir Edward Coke, in his The Institutes of the Laws of England, 1628:[4]

For a man's house is his castle, et domus sua cuique est tutissimum refugium [and each man's home is his safest refuge].[4]

English common law came with colonists to the New World, where it has become known as the castle doctrine.[4] The term has been used in England to imply a person's absolute right to exclude anyone from their home, although this has always had restrictions, such as bailiffs having increasing powers of entry since the late-20th century.[5]

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."[6][7]

In the early United States

"Trespassers will be shot" sign

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.[8][9] 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[10] of his Commentaries on the Laws of England,[11] 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;[12] quid enim sanctius, quid omni religione munitius, quam domus uniusquisque civium?[13] 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.

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.

On the American frontier

On the American frontier, the doctrine of no duty to retreat extended outside a residence. It asserted that a man in an altercation that he did not provoke was not obliged to flee from his attacker, but was free to stand his ground and defend himself. A state Supreme Court justice wrote in 1877,[14]

Indeed, the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed.

American West historian Richard M. Brown wrote that under the circumstances, for a man in the American West to flee under such circumstances would be cowardly and un-American. Legendary dentist and gambler Doc Holliday successfully used this defense when he shot Billy Allen as he entered a saloon. Holliday owed Allen $5 which Allen wanted paid and had threatened Holliday. Although Allen was unarmed at the time, Holliday had received reports that Allen had been armed and looking for him earlier in the day. During the subsequent trial, Holliday asserted he was within his rights and the jury agreed. He was acquitted on March 28, 1885.[14]

Current position

Today, the penal and civil forcible-entry laws of most American states forbid the use of force in the recovery of possession of land.[15] At most the Castle Doctrine is an affirmative defense for individuals inevitably charged with criminal homicide,[16] not a permission or pretext to commit homicide—which is generally unlawful. A minority of states, permit individuals who have the right of immediate possession of land to use reasonable force to regain possession of that land.[17]

The term "make my day law" came to be used in the United States in 1985 when Colorado passed a law that shielded people from any criminal or civil liability for using force against a home invader, including deadly force.[18] (The law's nickname is a reference to the line "Go ahead, make my day" (meaning 'do something so I have an excuse to kill you') uttered by actor Clint Eastwood's character "Dirty Harry" Callahan in the 1983 police film Sudden Impact.)

Conditions of use

Each jurisdiction incorporates the castle doctrine into its laws in different ways. The circumstance in which it may be invoked include the premises covered (abode only, or other places too), the degree of retreat or non-deadly resistance required before deadly force can be used, etc. Typical conditions that apply to some castle doctrine laws include:

  • 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 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.[19]

In Colorado, the make-my-day statute provides the occupant with immunity from prosecution only for force used against a person who has made an unlawful entry into the dwelling, but not against a person who remains unlawfully in the dwelling.[20][21]

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

In US jurisdictions where the castle doctrine applies, there is no duty to retreat before deadly force is used against an intruder by a person in their home or, in some jurisdictions, just simply where the person can legally be.[22]

Stand-your-ground

Most states in the United States have stand-your-ground laws where individuals can use deadly force in any location one is legally allowed to be without first attempting to retreat.

Culpability of intruder

In Colorado, the make-my-day statute "was not intended to justify use of physical force against persons who enter a dwelling accidentally or in good faith."[21] In other words, "the unlawful entry element requires a culpable mental state of 'knowingly' on the part of the intruder."[23]

State-by-state positions in the United States

  Stand-your-ground law
  Stand-your-ground in practice
  Stand-your-ground from within one's vehicle
  Castle doctrine only; duty to retreat in public
  Duty to retreat

A list of states and their most applicable body of law to justifying homicide in protection of the abode is listed below. Because not all states truly invoke castle doctrine, justifiable homicide in defense of life—which is nearly universal in adoption, but with narrower application—is often what is invoked as a pretext to protect the home. However, the mere fact that one is trespassing is an inappropriate or inadequate defense per se to justifying homicide in many states.[15]

States incorporating castle doctrine principles

The castle doctrine in its traditional absolute and extrajudicial form is antiquated in most states. However, its vestige saliently remains as a set of principles which are incorporated to a variegated extent through both statutory and case law. It is commonly manifested as an affirmative defense to criminal homicide that occurred within a home;[16] in some states though it slightly enhances the conditions for justifiable homicide in self-defense by laying down no duty to retreat or avert a violent encounter, or by even granting a blanket rebuttable presumption of required killing in defense of life. Where principles are statutized in a penal code, a homicide may be excused criminally, but be a wrongful death civilly. In a strict sense, simple justifiable homicide in self-defense which happens to occur inside one's home is actually distinct as a matter of law from castle doctrine's no duty to retreat in defense of one's domicile. Self-defense protects life while castle doctrine defends estate. While most American states forbid the use of force in the recovery of possession of land,[15] a minority of jurisdictions do invoke pure castle doctrine which unconditionally authorizes violent self-help in protection of one's domicile. States still espousing the archaic form tend to be conservative, or have unique issues such as a primarily rural population in a harsh or adverse environment which critically demands high broad skill in self-reliance. It is invoked in areas often associated with small local governments and very long response times from law enforcement. Dense urban jurisdictions repeatedly find that injustices, mistakes, and avoidable escalation from violent self-help often outweigh any benefit, especially when potential occurrences are frequent, initial police response is usually less than 7–15 minutes away, and legal remedies are local.

StateLawNotes
Alabama§ 13A-3-23"Use of force in defense of a person.

(a) A person is justified in using physical force upon another person in order 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 physical force by that other person, and he or she may use a degree of force which he or she reasonably believes to be necessary for the purpose. A person may use deadly physical force, and is legally presumed to be justified in using deadly physical force in self-defense or the defense of another person pursuant to subdivision (4), if the person reasonably believes that another person is: (1) Using or about to use unlawful deadly physical force. (2) Using or about to use physical force against an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling. (3) Committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree, forcible rape, or forcible sodomy. (4) In the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered, a dwelling, residence, or occupied vehicle, or federally licensed nuclear power facility, or is in the process of sabotaging or attempting to sabotage a federally licensed nuclear power facility, or is attempting to remove, or has forcefully removed, a person against his or her will from any dwelling, residence, or occupied vehicle when the person has a legal right to be there, and provided that the person using the deadly physical force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring...." http://www.usacarry.com/alabama_stand_your_ground_castle_doctrine_law.html

Alaska§ 11.81.335"...a person who is justified in using nondeadly force in self-defense under AS 11.81.330 may use deadly force in self-defense upon another person when and to the extent the person reasonably believes the use of deadly force is necessary for self-defense against death, serious physical injury, kidnapping, sexual assault, robbery in any degree... there is no duty to leave the area if the person is(1) on premises that the person owns or leases. - See more at: http://codes.lp.findlaw.com/akstatutes/11/11.81./04./11.81.335.#sthash.q41T1xXM.dpuf
Arizona§ 13-411"A. A person is justified in threatening or using both physical force and deadly physical force against another if and to the extent the person reasonably believes that physical force or deadly physical force is immediately necessary to prevent the other's commission of arson of an occupied structure under section 13‑1704, burglary in the second or first degree under section 13‑1507 or 13‑1508, kidnapping under section 13‑1304, manslaughter under section 13‑1103, second or first degree murder under section 13‑1104 or 13‑1105, sexual conduct with a minor under section 13‑1405, sexual assault under section 13‑1406, child molestation under section 13‑1410, armed robbery under section 13‑1904, or aggravated assault under section 13‑1204, subsection A, paragraphs 1 and 2. B. There is no duty to retreat before threatening or using physical force or deadly physical force justified by subsection A of this section. C. A person is presumed to be acting reasonably for the purposes of this section if he the person is acting to prevent the commission of any of the offenses listed in subsection A of this section. D. This section is not limited to the use or threatened use of physical or deadly physical force in a person's home, residence, place of business, land the person owns or leases, conveyance of any kind, or any other place in this state where a person has a right to be.[24]
Arkansas[25]The General Assembly finds that the current laws regarding self-defense and the use of deadly physical force in self-defense or in defense of another person are adequate in that the law explicitly does not require a person to retreat from certain life-threatening confrontations if a person cannot do so safely. However, the General Assembly finds that there is currently not enough protection from civil liability for a person who rightfully uses deadly physical force in self-defense or in defense of another person. The General Assembly finds that a more robust civil immunity statute is necessary to protect a person from civil damages stemming from an incident when he or she lawfully uses deadly physical force in self-defense or in defense of another person.
California§ Penal Code 198.5


Daluiso v. Boone, 71 Cal.2d 484 		"Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred."[26]

"It is urged that the owner of real estate has a right to enter upon and enjoy his own property. Undoubtedly, if he can do so without a forcible disturbance of the possession of another; but the peace and good order of society require that he shall not be permitted to enter against the will of the occupant, and hence the common law right to use all necessary force has been taken away. He may be wrongfully kept out of possession, but he cannot be permitted to take the law into his own hands and redress his own wrongs. The remedy must be sought through those peaceful agencies which a civilized community provides for all its members."[27]
Colorado§ 18-1-704"...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."[28]
ConnecticutSec. 53a-20A person in possession or control of premises, or a person who is licensed or privileged to be in or upon such premises, is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of a criminal trespass by such other person in or upon such premises; but he may use deadly physical force under such circumstances only (1) in defense of a person as prescribed in section 53a-19, or (2) when he reasonably believes such to be necessary to prevent an attempt by the trespasser to commit arson or any crime of violence, or (3) to the extent that he reasonably believes such to be necessary to prevent or terminate an unlawful entry by force into his dwelling as defined in section 53a-100, or place of work, and for the sole purpose of such prevention or termination.
Delaware [29] No duty to retreat in home. Duty to retreat in public.
Florida776.013Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm.
Georgia§ 16-3-23.1No duty to retreat prior to use of force in self-defense.
Hawaii§ 703-304No duty to retreat from dwelling/workplace.
Idaho18-4009a justifiable homicide law in self-defense from violence—must prove intruder's intent thereof
Illinois720 ILCS 5Use of deadly force justified. Specific legislation prevents filing claim against defender of dwelling. Illinois has no requirement of retreat.
IndianaIC 35-41-3-2No duty to retreat from dwelling, curtilage, or occupied motor vehicle. In 2012, an amendment was made to the code to address the issue of force against a public servant. The amendment states: "A person is not justified in using deadly force against a public servant whom the person knows or reasonably should know is a public servant unless: (1) the person reasonably believes that the public servant is: (A) acting unlawfully; or (B) not engaged in the execution of the public servant's official duties; and (2) the force is reasonably necessary to prevent serious bodily injury to the person or a third person."
Iowa704.1No duty to retreat from home or place of business in defense of self or a "third party".
KentuckyKRS 503.055No duty to retreat from dwelling, residence or occupied vehicle.
LouisianaLA RS 14:20(4)(a) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40), against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises or motor vehicle.
Maine§ 104Deadly 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[30]
MarylandSee Maryland self-defense. Case-law, not statute, incorporates the common law castle-doctrine into Maryland self-defense law. Invitees or guests may have duty to retreat based on mixed case law.[31]
Massachusetts278-8aSection 8A. In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.
Michigan768.21c768.21c Use of deadly force by individual in own dwelling; "dwelling" defined.

(1) In cases in which section 2 of the self-defense act does not apply, the common law of this state applies except that the duty to retreat before using deadly force is not required if an individual is in his or her own dwelling or within the curtilage of that dwelling.
(2) As used in this section, "dwelling" means a structure or shelter that is used permanently or temporarily as a place of abode, including an appurtenant structure attached to that structure or shelter.[32]
Minnesota609.065No 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 [33] This isn't as clear as it appears, however. There are four cases in Minnesota where duty of retreat was upheld.[34]
MississippiMS Code 97-3-15(3) A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another or upon his dwelling, or against a vehicle which he was occupying, or against his business or place of employment or the immediate premises of such business or place of employment, if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered, a dwelling, occupied vehicle, business, place of employment or the immediate premises thereof or if that person had unlawfully removed or was attempting to unlawfully remove another against the other person's will from that dwelling, occupied vehicle, business, place of employment or the immediate premises thereof and the person who used defensive force knew or had reason to believe that the forcible entry or unlawful and forcible act was occurring or had occurred. This presumption shall not apply if the person against whom defensive force was used has a right to be in or is a lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or is the lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or if the person who uses defensive force is engaged in unlawful activity or if the person is a law enforcement officer engaged in the performance of his official duties;

(4) A person who is not the initial aggressor and is not engaged in unlawful activity shall have no duty to retreat before using deadly force under subsection (1) (e) or (f) of this section if the person is in a place where the person has a right to be, and no finder of fact shall be permitted to consider the person's failure to retreat as evidence that the person's use of force was unnecessary, excessive or unreasonable.

(5) (a) The presumptions contained in subsection (3) of this section shall apply in civil cases in which self-defense or defense of another is claimed as a defense.[35]

Missouri563.031Extends 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.
Montana §45-3-10345-3-103. 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.

Nebraska [36] No duty to retreat in home. Duty to retreat in public.
Nevada200.120200.120.

1. Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, property or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against any person or persons who manifestly intend and endeavor, in a violent, riotous, tumultuous or surreptitious manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein.
2.  A person is not required to retreat before using deadly force as provided in subsection 1 if the person:
(a) Is not the original aggressor;
(b) Has a right to be present at the location where deadly force is used; and
(c) Is not actively engaged in conduct in furtherance of criminal activity at the time deadly force is used.

New HampshireNot required to retreat if he or she is within his or her dwelling, its curtilage, or anywhere he or she has a right to be, and was not the initial aggressor. An individual may respond to a threat of serious bodily injury or death by displaying a firearm or other method of self-defense. Deadly force is justified if the aggressor is about to use unlawful, deadly force, is likely to use any unlawful force against a person present while committing or attempting to commit a burglary, is committing or about to commit kidnapping or a forcible sex offense, or is likely to use any unlawful force in the commission of a felony against the individual within their dwelling or its curtilage.
New JerseyRetreat 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
New YorkPL § 35.15(2)(a)(i)Retreat required if actor knows that with complete personal safety, to oneself and others, he or she may avoid the necessity of using deadly force by retreating, except that the actor is under no duty to retreat if he or she is in his or her dwelling and not the initial aggressor.
North Carolina§ 14‑51.3Use 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. (2011‑268, s. 1.)

North Dakota12.1-05-07. When deadly force is used in lawful self-defense, or in lawful defense of others, if such force is necessary to protect the actor or anyone else against death, serious bodily injury, or the commission of a felony involving violence, An individual is not required to retreat within or from that individual's dwelling or place of work or from an occupied motor home or travel trailer, unless the individual was the original aggressor or is assailed by another individual who the individual knows also dwells or works there or who is lawfully in the motor home or travel trailer. Also, deadly force is permitted in defense of property when used by an individual in possession or control of a dwelling, place of work, or an occupied motor home or travel trailer, or by an individual who is licensed or privileged to be there, if the force is necessary to prevent commission of arson, burglary, robbery, or a felony involving violence upon or in the dwelling, place of work, or occupied motor home or travel trailer, and the use of force other than deadly force for these purposes would expose any individual to substantial danger of serious bodily injury.
Ohio127 SB 184Extends to vehicles of self and immediate family; effective September 9, 2008.[37] Section 2901.09
OregonORS 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)."
Pennsylvania18 Pa.C.S. Chapter 5 § 505The most recent version of Pennsylvania's Castle Doctrine legislation was signed into law in June 2011. The law extends the right to self-defense up to and including deadly force in a victim's dwelling (now including any attached porch, deck or patio), occupied vehicle, or any other dwelling or vehicle that the victim legally occupies. A place of work is included in the "castle" provision under certain circumstances. Use of deadly force is justifiable if the "castle" area in the event that an assailant is "unlawfully and forcefully entering" or has entered the "castle" area. Deadly force is also justifiable, subject to certain provisions, if a person that legally enters the "castle" goes on to unlawfully attack a victim (when the victim is resonably in fear of his/her life) or if the attacker attempts to kidnap anyone who legally occupies the "castle". The victim must be in "legal possession" of a firearm or other weapon to be justified in the use of that weapon. Use of deadly force to protect an innocent third person is generally allowed in circumstances where the provisions for justifiable self-defense are met. Victims who justifiably use force to defend themselves under the provisions of the law are immune from civil liability for any injuries sustained by the attacker during the incident. The new legislation also contains a stand your ground provision when outside the "castle". Outside "castle areas" there is no duty to retreat if confronted with a weapon.
Rhode Island§ 11-8-8In the event that any person shall die or shall sustain a personal injury in any way or for any cause while in the commission of any criminal offense enumerated in §§ 11-8-2 – 11-8-6, it shall be rebuttably presumed as a matter of law in any civil or criminal proceeding that the owner, tenant, or occupier of the place where the offense was committed acted by reasonable means in self-defense and in the reasonable belief that the person engaged in the criminal offense was about to inflict great bodily harm or death upon that person or any other individual lawfully in the place where the criminal offense was committed. There shall be no duty on the part of an owner, tenant, or occupier to retreat from any person engaged in the commission of any criminal offense enumerated in §§ 11-8-2 – 11-8-6.
TexasPenal Code Sec. 9.32(a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and (2) when and to the degree the actor reasonably believes the deadly force is immediately necessary: (A) to protect the actor against the other's use or attempted use of unlawful deadly force; or (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. (b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor: (1) knew or had reason to believe that the person against whom the deadly force was used: (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment; (B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or (C) was committing or attempting to commit an offense described by Subsection (a)(2)(B); (2) did not provoke the person against whom the force was used; and (3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used. (c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section. (d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

Utah76-2-405. Amended by Chapter 252, 1985 General Session. Force in defense of habitation.

(1) A person is justified in using force against another when and to the extent that he reasonably believes that the force is necessary to prevent or terminate the other's unlawful entry into or attack upon his habitation; however, he is justified in the use of force which is intended or likely to cause death or serious bodily injury only if: (a) the entry is made or attempted in a violent and tumultuous manner, surreptitiously, or by stealth, and he reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person, dwelling, or being in the habitation and he reasonably believes that the force is necessary to prevent the assault or offer of personal violence; or (b) he reasonably believes that the entry is made or attempted for the purpose of committing a felony in the habitation and that the force is necessary to prevent the commission of the felony. (2) The person using force or deadly force in defense of habitation is presumed for the purpose of both civil and criminal cases to have acted reasonably and had a reasonable fear of imminent peril of death or serious bodily injury if the entry or attempted entry is unlawful and is made or attempted by use of force, or in a violent and tumultuous manner, or surreptitiously or by stealth, or for the purpose of committing a felony.

West Virginia§55-7-22.

(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.

WisconsinAssembly Bill 69, signed December 7, 2011; The civil immunity became Sec. 895.62, Wis.Stats. and the criminal immunity became Sec. 939.48, Wis.Stats.
Wyoming

In addition to the states listed above, the U.S. Territory of Guam has the Castle doctrine as law.[38]

U.S. TerritoryStatuteNotes
GuamBill 146 amends Guam law by allowing homeowners to use deadly force against home invaders. If their actions meet the provisions of the bill, homeowners would be immune from prosecution and civil lawsuits.
Puerto Rico Art.25Penal Code Article 25

. - Legitimate Defense. A person does not incur criminal liability when defending his person, his home, his property or rights, or person, dwelling, property or rights of others when the person reasonably believes that imminent damage is to be expected, provided that there is a rational need for the means of impeding or repelling the damage, and it can be shown that there isn't sufficient evidence that the person exercising the defense provoked the aggressor, and that the means of exercising the defense did not exceed the means necessary to repel or avoid the damage.

When self-defense is claimed to justify killing a human being, it is necessary to have founded grounds to believe that by killing the aggressor, the victim of the aggression or the person being defended from the aggressor was in imminent or immediate danger of death or serious bodily harm. To justify the defense of the abode, the circumstances must indicate an illegal entry or that the person in the dwelling had a reasonable belief that a crime will be committed. To justify the defense of property or rights, the circumstances must indicate an attack on them which results in a criminal offense or puts them in serious danger of imminent deterioration or loss.

A new law passed in April 2018 expanded castle doctrine protections.[39]

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.[40][41]
  • New Mexico - Limited Castle Doctrine for self-defense inside one's home established by court precedence in State v. Couch (1946). No civil immunity from potential lawsuits by the aggressor or surviving relatives. In 2011, two bills (House Bill 228 and Senate Bill 29) would have granted civil immunity to individuals who lawfully use lethal force in self-defense, both bills died in their respective chambers of the New Mexico Legislature.
  • 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).[42]
  • Vermont[43]

Outside the US

Australia

Australian states have differing self-defence laws. 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.[44]

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.[45]

Brazil (self-defence of possession)

Since 1917, with the enacting of the first Brazilian Civil Code, a possessor of a thing, moveable or immoveable, is allowed, in case of disturbance ("turbação") or expulsion ("esbulho"), to "maintain or to reintegrate himself [at the possession of a thing] using its own force, as well as he does it soon". The acts of force employed by the possessor shall not exceed the necessary ones for eliminating the disturbance or for reintegration (Article 502 of the former Civil Code; Federal Ordinary Law 3.071/1917).[46] This possibility remained untouched on the Brazilian Civil Code of 2002 (Federal Ordinary Law 10.406/2002), in its Article 1.210.[47]

Self-defence of possession is not allowed for the cases of threat ("ameaça"). It is needed for the possessor to be effectively and physically disturbed in its possession ("turbação") or completely severed from it ("esbulho"). A possessor acting under the prescriptions of the Article 1.210 of the Civil Code shall be exempt of any civil or criminal responsibility. In terms of Tort Law, Article 188, inc. I, of the Civil Code states that is not an unlawful act "the regular exercise of a right recognized by the law".

Canada

According to the Criminal Code of Canada Sections 34 and 35,[48] (which were updated in 2012 with the passage of bill C-26) force, up to and including lethal force may be used in defence of one's life or "peaceably" possessed property or the defence of another's life or "peaceably" possessed property, and is not considered an offence so long as the person believes that force is being used against them in the case of self-defence, that someone is about to or has broken into or damaged property in the case of defence of property, that they are acting in defence of themselves, someone else or "peaceably" possessed property, and that the act is reasonable in the circumstances. The criminal code also lays out the factors in either case that will be used to determine what constitutes "reasonable given the circumstances". The changes made by the government were to clarify the laws involving self-defence and defence of property, and to help legal professionals to apply the law as believed to reflect the values Canadians hold to be acceptable.

England and Wales

"Trespassers will be shot" sign in England

In English common law a defendant may seek to avoid criminal or civil liability by claiming that he acted in self-defence.[49] 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.[50] 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.[49] 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, without any duty to retreat.[51] 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 an unlawful attack on his life.[52]

Ireland

Under the terms of the Defence and the Dwelling Act enacted in 2011, property owners or residents are entitled to defend themselves with force, up to and including lethal force. Any individual who uses force against a trespasser is not guilty of an offense if he or she honestly believes they were there to commit a criminal act and a threat to life. However, there is a further provision which requires that the reaction to the intruder is such that another reasonable person in the same circumstances would likely employ. This provision acts as a safeguard against grossly disproportionate use of force, while still allowing a person to use force in nearly all circumstances.

The law was introduced in response to DPP v. Padraig Nally.[53][54] The Act largely places previous Irish common law jurisprudence regarding self-defense on a statutory footing.[55]

Israel

Israeli law allows property owners to defend themselves with force.[56] 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 in 2007.[57]

Italy

Italy passed a law in 2005 that would allow property owners to defend themselves with force.[58] The law's practical application is however highly controversial: Italian judiciary system is rather complex and using force is, more often than not, not recommended at all, since the property owner might get sued for disproportionate use of force.[59]

See also

History

Notes

  1. 1 2 "Assembly, No. 159, State of New Jersey, 213th Legislature, The "New Jersey Self Defense Law"" (PDF). 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. ↑ Black's Law Dictionary: This term applies to the blameless killing of a person, such as in self-defense.
  3. ↑ Numa Denis Fustel de Coulanges, The Ancient City, 50. "To enter this house with any malevolent intention was a sacrilege. The domicile was inviolable."
  4. 1 2 3 "An Englishman's home is his castle". Phrases.org.uk. Retrieved 2012-01-11.
  5. ↑ Philip Johnston (11 January 2009). "An Englishman's home is no longer his castle". London: Telegraph. Retrieved 2012-01-11.
  6. ↑ Exodus 22:2-3
  7. ↑ "Exodus 22 / Hebrew - English Bible / Mechon-Mamre". www.mechon-mamre.org.
  8. ↑ Dickinson v. Maguire, 9 Cal. 46, The Chief Justice of California during the ruling was David S. Terry, who ironically, was later killed by order of Associate Supreme Court Justice Field under the guise of self-defense.
  9. ↑ Daluiso v. Boone, 71 Cal.2d 484 for English common law history
  10. ↑ Blackstone's Commentaries - Book the Fourth - Chapter the Sixteenth : Of Offenses Against the Habitations of Individuals Archived 2008-05-03 at the Wayback Machine.
  11. ↑ Some doctrines would be hotly debated as law as applied in the young post-revolution United States. Example: "That the King can do no wrong, is a necessary and fundamental principle of the English constitution."
  12. ↑ "Tully" was once a common abbreviation for Marcus Tullius Cicero.
  13. ↑ What is more sacred, what more strongly guarded by every holy feeling, than a man's own home?
  14. 1 2 Jay, Roger (August 14, 2006). "Spitting Lead in Leadville: Doc Holliday's Last Stand". HistoryNet. Wild West Magazine. Retrieved 13 April 2015.
  15. 1 2 3 1 Harper and James, op.cit. supra, at § 3.15, p. 258; Prosser, Law of Torts (3d ed. 1964) § 23, p. 125. See e.g., Mason v. Hawes (1884) 52 Conn. 12, 16 [52 Am.Rep. 552]; McIntyre v. Murphy (1908) 153 Mich. 342, 346-347 [116 N.W. 1003, 1004-1005, 15 Ann.Cas. 802]; Lobdell v. Keene (1901) 85 Minn. 90, 101 [88 N.W. 426, 430]; Strauel v. Lubeley (1915) 186 Mo.App. 638, 643-644 [172 S.W. 434, 435-436]; Mosseller v. Deaver (1890) 106 N.C. 494, 496-498 [11 S.E. 529, 530, 8 L.R.A. 537, 19 Am.St.Rep. 540]; Weatherly v. Manatt (1919) 72 Okla. 138, 139-140 [179 P. 470, 471]; Walgreen Co. v. Walton (1932) 16 Tenn.App. 213, 229 [64 S.W.2d 44, 53]; Ray v. Dyer (Tex.Civ.App. 1929) 20 S.W.2d 328, 330; Buchanan v. Crites (1944) 106 Utah 428, 436 [150 [71 Cal.2d 493] P.2d 100, 103]. See also Whitney v. Brown (1907) 75 Kan. 678, 681-683 [90 P. 277, 278, 11 L.R.A. N.S. 468, 12 Ann.Cas. 768]; Rest.2d Torts, § 185, com. a. See Daluiso v. Boone, 71 Cal.2d 484
  16. 1 2 Randall, Mark; DeBoer, Hendrik (April 24, 2012). "The Castle Doctrine and Stand-your-Ground Law". Connecticut General Assembly. The State of Connecticut. Retrieved June 2, 2018. The Castle Doctrine and "stand-your-ground" laws are affirmative defenses for individuals charged with criminal homicide....The doctrine is not a defined law that can be invoked, but is a set of principles which is incorporated in some form in the law of most states.
  17. ↑ "Shorter v. Shelton, 183 Va. 819, 826-827". Supreme Court of Virginia. April 23, 1945. Retrieved 2013-07-29. It will be observed that the statute [of forcible entry] does not in express terms deprive the owner of the common-law right to take possession by reasonable force of premises to which he may be entitled.
  18. ↑ Dirk Johnson (June 1, 1990). "'Make My Day': More Than a Threat". New York Times. Retrieved 2008-06-27.
  19. ↑ Reinhart, Christopher. "CASTLE DOCTRINE AND SELF-DEFENSE". www.cga.ct.gov. State of Connecticut. Retrieved 8 September 2014.
  20. ↑ People v. Drennon, 860 P.2d 589 (Colo. Ct. App. 1993)
  21. 1 2 People v. McNeese, 892 P.2d 304 (Colo. 1995)
  22. ↑ Rhinehart, C, Castle Doctrine and Self-Defense Connecticut General Assembly, Office of Legislative Research.
  23. ↑ People v. Zukowski, 260 P.3d 339 (Colo. Ct. App. 2011)
  24. ↑ See more at: http://www.azleg.gov//FormatDocument.asp?inDoc=/legtext/47leg/2r/laws/0199.htm&Session_ID=83
  25. ↑ "Bill Drafting Template" (PDF). 2015.
  26. ↑ § Penal Code 198.5
  27. ↑ Daluiso v. Boone, 71 Cal.2d 484 (Supreme Court of California June 27, 1969) ("a person in peaceable possession of real property may recover, in an action sounding in tort, damages for injuries to his person and goods caused by the forcible entry of one who is, or claims to be, the lawful owner or possessor and that the forcibly entering defendant's title or right of possession is no defense to such action. (See case annotated here: Official California Reports Opinions)").
  28. ↑ 18-1-704.5 Use of deadly physical force against an intruder.
  29. ↑ "TITLE 11 - CHAPTER 4. DEFENSES TO CRIMINAL LIABILITY". www.delcode.delaware.gov. Retrieved 2017-01-12.
  30. ↑ "Title 17-A, §107: Physical force in law enforcement". www.mainelegislature.org.
  31. ↑ "2007 Regular Session - Fiscal and Policy Note for Senate Bill 761" (PDF).
  32. ↑ "Michigan Legislature - Section 768.21c". legislature.mi.gov. Retrieved 2015-03-04.
  33. ↑ "State of Minnesota v. Glowacki, 630 N.W.2d 392, 402 (Minn. 2001)".
  34. ↑ "No. C8-98-86. - STATE v. CAROTHERS — MN Court of Appeals". Caselaw.findlaw.com. Retrieved 2012-01-11.
  35. ↑ Miss. Code Ann 97-3-15
  36. ↑ LTC. "Nebraska Legislature". nebraskalegislature.gov. Retrieved 2017-01-12.
  37. ↑ "Senate Bills — Status Report of Legislation, SB 184". Retrieved 2008-08-09.
  38. ↑ (February 10, 2014) - "BREAKING NEWS: Gov. Calvo Signs Castle Doctrine Into Law". Pacific Daily News. Retrieved February 3, 2015.
  39. ↑ "Defensores de las armas celebran nueva ley de doctrina del castillo". Primera Hora. 2018-04-18. Retrieved 2018-08-11.
  40. ↑ Moring, Rosann (March 29, 2012). "150 at rally over death of Florida teen". The Daily Nonpariel. Retrieved 2012-04-17.
  41. ↑ LTC. "Nebraska Legislature". nebraskalegislature.gov. Retrieved 2016-04-02.
  42. ↑ "SDLRC - Codified Law 22-16-34". legis.state.sd.us.
  43. ↑ Dustin v. Cowdry (1851) 23 Vt. 631, 639-640. Official Vermont Reports, Vol. 23, Pg. 631 (Supreme Court of Vermont reporter). 1851. Retrieved July 27, 2013. [H]ad the present plaintiff elected to have proceeded under the statute, there can be no doubt, he might have subjected the defendants to punishment by way of fine, obtained restitution of the possession, and sustained an action of trespass, and recovered three fold damages for the expulsion and detention. And if such be the undeniable rights of the parties, under the statute, it is difficult to see, why, if the party waive all penalty under the statute, he may not sustain trespass qu. cl. against the defendants, the same as against any other wrong doers. Their [defendants'] right to possession gave them no more right to enter in that manner [by force], than if they had been mere strangers. ...
  44. ↑ "Criminal Law Consolidation (Self Defence) Amendment Act 2003" (PDF). Government of South Australia. Retrieved 27 July 2013.
  45. ↑ Accused to argue self defence | adelaidenow. News.com.au (2007-01-28). Retrieved on 2012-08-06.
  46. ↑ "L3071impressao". www.planalto.gov.br. Retrieved 2018-02-17.
  47. ↑ "L10406". www.planalto.gov.br. Retrieved 2018-02-17.
  48. ↑ Branch, Legislative Services. "Consolidated federal laws of canada, Criminal Code". lois-laws.justice.gc.ca.
  49. 1 2 "CPS Guidance on Self-defence". Retrieved 18 March 2012.
  50. ↑ "CPS Guidelines on Self-Defence". Retrieved 18 March 2012.
  51. ↑ "Notwehrparagraph".
  52. ↑ "BGH, 02.11.2011 - 2 StR 375/11".
  53. ↑ Cullen, Paul (13 January 2012). "Law lets householders use reasonable force". The Irish Times.
  54. ↑ "Law allows 'reasonable force' defending home". RTÉ News. 13 January 2012. Archived from the original on 15 January 2012.
  55. ↑ Ring, Sinead (2010-07-20). "The Criminal Law (Defence and the Dwelling) Bill 2010". Human Rights in Ireland. Archived from the original on 8 April 2011.
  56. ↑ "Knesset Passes "Dromi Law"". Retrieved 18 March 2012.
  57. ↑ Stoil, Rebecca Anna (24 June 2008). "New law allows shooting at burglars". The Jerusalem Post. Retrieved 15 July 2009.
  58. ↑ Italy approves self-defence law , BBCX, January 24, 2006.
  59. ↑ Diritto.it, commentary on the law
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