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Old December 30, 2009, 02:46 AM   #1
guitar1580
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Castle Doctrine laws

I live in West Virginia, bordering Ohio. A few years ago, there was much talk about the Castle Doctrine laws changing in both states, as well as others, in favor of the homeowner. And I heard about a homeowner out west being acquitted because of it.

Can anyone explain the changes from the previous laws?? Not that it matters that much ... I'd be comin' up shootin' before the change or not. My doors are locked at nite and if anyone gets in the house, it's too bad for them. Mr. Wesson and I were never really in the habit of checking picture IDs and thumbprints before we shoot. In my own locked home, I've always been of the mindset of save my life now, and deal with the law later, and alive. I interpret the constitution as giving me that right.

Anyway, its great to hear of a positive change for the gun owner, with all of the gun control talk goin around these days.

Josh P
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Old December 31, 2009, 12:26 PM   #2
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I will give you a general idea. We have Castle Doctrine here in SC, but Castle Doctrine is not necessarily the same in each state.

In general the Castle laws say that you have no obligation to retreat. They also add protection against civil law suits....that is if the authorities determine you did follow the law. Normally if you have a CCW these protections extend to you while in your car and even on the street.

It's an improvement over previous laws, but like you said if you are being attacked you are not going to worry much about whether you have Castle Doctrine or not.
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Old December 31, 2009, 05:41 PM   #3
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I know nothing about WV law, but I think the OP is asking about Castle Doctrine laws in a general sense, so I'll try and sum up the issue generally.

First, many states had, or still have, a so-called "duty to retreat" and/or "duty to warn" clause in their deadly force statutes. Both are fairly straightforward and easy to understand; the first says that the homeowner who feels threatened must try to look for a path of escape, and the second says that the homeowner must warn the intruder that he or she may use deadly force if the intruder doesn't retreat. Castle doctrine removes these clauses from the law by saying that a homeowner may immediately use deadly force if he or she feels threatened, without going through these formalities. It provides an affirmative defense for the homeowner.

In many states, however, case law had already effectively defanged these clauses; the burden of proof for prosecution under these laws was high to insurmountable in most real-world home-defense cases due to the absence of reliable and impartial witnesses, and in the vast majority of cases where a homeowner killed someone recklessly or maliciously, he or she violated another more readily prosecutable law in the process, making the clause unnecessary. Consequently, although the repeal of duty-to-retreat and/or duty-to-warn clauses is probably the most highly publicized and controversial part of these laws, it's often the least meaningful in the real world.

Second, many of these laws resolve vagaries in establishing what is legally considered "home" for self-defense purposes. Many Castle Doctrine laws make it clear that it includes temporary residences such as motel rooms or the home of a friend or relative when you're staying there, and other laws make it clear that it includes all buildings on one's property, including structures like backyard sheds, detached garages, and barns. Some laws extend to your vehicle and place of employment, which has also proven somewhat controversial.

Third, and possibly most importantly, some of these laws contain protections against civil lawsuits resulting from legal home-defense shootings, protecting the homeowner from being smothered by wrongful-death lawsuits filed by the family of the deceased.

Probably one of the most controversial Castle Doctrine cases happened late last year in TX, and I've read quite a bit about it. I'll come back with more information after I look it up.
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Old January 2, 2010, 08:45 PM   #4
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Do not confuse Castle Doctrine with Stand Your Ground type provisions. Nearly every state in this nation already has Castle Doctrine statutes and/or practices them under common law. ...Castle Doctrine has to do with use of force and retreating within one's home.

WV has Castle Doctrine - you have no duty to retreat in your home. However WV residents may be required to be in a life/death situation before applying deadly force even within their home.
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Old January 2, 2010, 09:36 PM   #5
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Nearly every state in this nation already has Castle Doctrine statutes and/or practices them under common law. ...
I don't think Castle Law is on the books in the majority of states, at least not as part of the CCW license law. I don't think common law substitutes for the type of strong Castle Law we are talking about.

Quote:
However WV residents may be required to be in a life/death situation before applying deadly force even within their home.
Yes, that's pretty much the universal test for applying deadly force. I don't think Castle Law was intended to change that situation. Also, if you have a CCW it applies to your vehicle and even when out on public streets...at least in our state.

Last edited by madmag; January 2, 2010 at 10:38 PM.
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Old January 3, 2010, 04:12 AM   #6
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The way I understand it... as previously stated, most states recognize the home as the "Castle".

In florida, I think the law basically changed the requirement from "life or death" being required to have a right to use lethal force in defense to "if they are in the home, you can assume it is going to escalate to life or death"...

Or something along them-thar lines...
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Old January 3, 2010, 04:23 AM   #7
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It varies wildly state to state, as was mentioned, out here we call it the "Make my day Law."

And I keep it bookmarked for just such questions (obviously this only applies to CO)

Quote:
(1) The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.

(2) Notwithstanding the provisions of section 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.

(3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.

(4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force."
You'll have to search around a bit to find the statute for where you live, but it's worth being somewhat familiar with; not that one would expect you to hesitate in self defense because of legal gray areas, but simply so that you know what risks and liabilities you're accepting by being of the defensive mindset.
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Old January 3, 2010, 01:34 PM   #8
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Mad Dog,

You are confusing Castle Doctrine with Stand Your Ground(Make My Day) type provisions. Castle Doctrine has to do with one's home and only their home. SYG type provisions has to do outside of one's place of abode.

Nearly all states have laws providing for using deadly force within one's home without retreating - Castle Doctrine.

Using the term "Castle Doctrine" for anything beyond the above is like using the term "clip" for magazines.
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Old January 3, 2010, 03:21 PM   #9
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Quote:
Mad Dog,

You are confusing Castle Doctrine with Stand Your Ground(Make My Day) type provisions. Castle Doctrine has to do with one's home and only their home. SYG type provisions has to do outside of one's place of abode.

Not correct. Here in SC the Castle Doctrine extends to vehicle and on street for CWP license. Another important aspect is it protects against civil law suit if it's determined you followed the Castle Law. This is what makes the SC law very good compared to others.

http://www.sled.sc.gov/ProtectionOfP...spx?MenuID=CWP

Quote:
The stated intent of the legislation is to codify the common law castle doctrine, which recognizes that a person’s home is his castle, and to extend the doctrine to include an occupied vehicle and the person’s place of business. This bill authorizes the lawful use of deadly force under certain circumstances against an intruder or attacker in a person’s dwelling, residence, or occupied vehicle. The bill provides that there is no duty to retreat if (1) the person is in a place where he has a right to be, including the person’s place of business, (2) the person is not engaged in an unlawful activity, and (3) the use of deadly force is necessary to prevent death, great bodily injury, or the commission of a violent crime. A person who lawfully uses deadly force is immune from criminal prosecution and civil action, unless the person against whom deadly force was used is a law enforcement officer acting in the performance of his official duties and he identifies himself in accordance with applicable law or the person using deadly force knows or reasonably should have known the person is a law enforcement officer.

H.4301 (R412) was signed by the Governor on June 9, 2006.
Which means anywhere you are covered by your license. I have a right to be on the street...etc. And I have a right to carry by virtue of my SC CWP license.

Quote:
Using the term "Castle Doctrine" for anything beyond the above is like using the term "clip" for magazines.
Yeah, kinda like calling me mad dog instead of madmag.

The lesson is Castle Laws are not the same in each state. I think there are other states like SC that have extended the Castle Laws to outside the home, and have included provisions against civil law suits.

Last edited by madmag; January 3, 2010 at 04:17 PM.
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Old January 3, 2010, 05:39 PM   #10
Don P
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Can anyone explain the changes from the previous laws??
Perhaps a call to the Attorney General in your state should be able to answer your question as they say straight from the horse's mouth
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Old January 3, 2010, 07:20 PM   #11
Bartholomew Roberts
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Just to clarify, "Castle Doctrine" is the term for the old common law doctrine that a man's home is his castle.

You must have a reasonable fear of immediate death or serious injury to use deadly force in many states. Generally, this is shown by showing the attacker had the following:

1. The intent to inflict serious injury or death as shown by his actions or words.

2. The ability to inflict serious injury or death (he has a knife for example)

2. The opportunity to inflict serious injury or death (he is positioned to use that weapon - for example, 30' away with a knife and standing still or walking away, it might be tough to prove opportunity. Running straight at you from 21' away? Easier to show he had the ability.

Castle Doctrine as it has commonly been understood throughout the years meant that typically, we weren't as demanding on proving each of these elements when the attacker had entered your own home unlawfully. Usually states would do this in one of two ways:

1. They would create a legal presumption that anyone who had entered your home unlawfully put you in reasonable fear of immediate death or serious injury. This is a good method; but still creates a situation where the presumption can be rebutted by enough evidence to show you were not in reasonable fear of death or serious injury,

2. They rewrote the self-defense statutes to say that you could use lethal force against someone entering your home unlawfully. This gives a little more benefit of the doubt to the homeowner.

In almost all states, there has never been a duty to retreat if you are attacked in your own home. However, in some of the Northeastern states, this doctrine had been weakened or eaten away over the years. In one Delaware case, a man who was twice attacked by his girlfriend's brother with a knife was convicted of manslaughter when he used a firearm to defend himself. Because the brother was an invitee of the girlfriend, the jury felt the man should have attempted retreat first.

In another New York case, two men who had a long history of animosity got into a conflict. One men came to the other man's door threatening him with a pocketknife. Because the man opened his door to answer, the New York court held that he had a duty to retreat even inside his own foyer.

The first round of Castle Doctrine laws date back to the 70s-80s and basically try to clarify exactly what is the "home" where there is no duty to retreat and you can legally use lethal force. These were partially in response to some states weakening the long held common law traditions regarding no duty to retreat.

The more recent round of these laws in the 2000's are more appropriately called "Stand Your Ground" laws; but are sometimes referred to as "Castle Doctrine" because they extend the same idea that you have no duty to retreat to other areas like yards, vehicles, or any public place that you have a right to be.

However, one important distinction is that "Castle Doctrine" laws eliminate or reduce the burden of proving you were in reasonable fear of immediate death or serious injury when there is unlawful entry. This concept doesn't always translate as well to vehicles or public places and different states deal with it in different ways in the "Stand Your Ground" laws.

It would be impossible to hit all the high points and subtle differences in a single post, so I won't try. The main thing I would emphasize is that these laws vary a lot from state to state and small subtleties can have a big effect on your freedom, so it pays to be familiar with your state's particular law and understand those angles.
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Old January 3, 2010, 07:24 PM   #12
madmag
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Perhaps a call to the Attorney General in your state should be able to answer your question as they say straight from the horse's mouth
Agreed.

It has been pointed out that there have been Castle Laws on some states books for years, but the point is that now there are a new round of extended or improved Castle Laws being enacted in some states. These are new laws. The SC law was signed in 2006. The NC law just happened in 2009. I think the Florida Castle law is also new. These newer Castle Laws are based on the old common laws but offer better rights for gun owners......at least that's my take.

Quote:
The main thing I would emphasize is that these laws vary a lot from state to state and small subtleties can have a big effect on your freedom, so it pays to be familiar with your state's particular law and understand those angles.
Good Point. I live on the border of SC & NC. Both have new Castle laws, but NC does not have the part for civil law suit protection. I keep that in mind, but of course if it's life or death then my decision is obvious.
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Old January 4, 2010, 03:44 PM   #13
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Bartholomew's explanation is the way I have always understood the law to be. It seems that when we get to using the nomenclature of "Castle Docterine" to all self-defense gun laws people can get confused. In WV we have a Castle Docterine that no longer requires you to retreat within your home, (guy in home= BG looking to threaten your life). However, on the street there must be a clear threat of bodily harm, so we do not have a "Stand Your Ground" clause (which I have understood to relinquish your responsibility to defuse or avoid the situation when possible). I have always viewed the wordage to be Castle concerns the home and surrounding property, and SYG reffers to public places.

Quote:
Not correct. Here in SC the Castle Doctrine extends to vehicle and on street for CWP license. Another important aspect is it protects against civil law suit if it's determined you followed the Castle Law. This is what makes the SC law very good compared to others.
Maddog,
Are you saying that in SC only a person with a CCW license has the right to defend themselves? Are all others in SC not able to protect themselves on the street? Or is it just that only CCW holders are prevented from lawsuit if they follow the law?
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Old January 4, 2010, 03:55 PM   #14
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Washington State does not have a specific castle doctrine law on the books, however by precedent (see State of Washington v. Reynaldo Redmond and State of Washington v. Studd), there is no duty to retreat.

"The law is well settled," said the court in the Redmond ruling, "that there is no duty to retreat when a person is assaulted in a place where he or she has a right to be."
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Old January 4, 2010, 04:09 PM   #15
madmag
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Quote:
Are you saying that in SC only a person with a CCW license has the right to defend themselves?
Absolutely not. I am saying that having a CWP extends your coverage to include anywhere you can legally carry. Without a license you are covered in your home, and I believe in your car if you follow the storage rules, but if you carry on the street without a license then you are not legal....so I would assume that is not a good situation to claim the self protection part of the law.

Quote:
Maddog,
Why does everyone call me maddog? Am I that vicious? Maybe I should ask the Mod's to change my title to maddog to prevent any further confusion.

Last edited by madmag; January 4, 2010 at 04:16 PM.
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Old January 4, 2010, 04:25 PM   #16
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Gotcha, just wanted clarification.
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Old January 4, 2010, 04:34 PM   #17
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MadMAG,
So SC does not have legal open carry? If it were legal and I were to be open carrying I too would be covered, correct?

I'm still unclear as to why you believe that the CCW lisencee has any more rights than any other citizen in reference to protecting themselves. Clearly they have the right to carry and conceal it, but I believe them to have no more right in the use of said weapon. I was under the impression that in most places a person is allowed to break the law in order to prevent bodily harm or death. In the civil aspect of law I could see a problem but still not legal. Also in your quoted law, I see no mention of CCW or CWP, is this an inference of your's?

Quote:
The stated intent of the legislation is to codify the common law castle doctrine, which recognizes that a person’s home is his castle, and to extend the doctrine to include an occupied vehicle and the person’s place of business. This bill authorizes the lawful use of deadly force under certain circumstances against an intruder or attacker in a person’s dwelling, residence, or occupied vehicle. The bill provides that there is no duty to retreat if (1) the person is in a place where he has a right to be, including the person’s place of business, (2) the person is not engaged in an unlawful activity, and (3) the use of deadly force is necessary to prevent death, great bodily injury, or the commission of a violent crime. A person who lawfully uses deadly force is immune from criminal prosecution and civil action, unless the person against whom deadly force was used is a law enforcement officer acting in the performance of his official duties and he identifies himself in accordance with applicable law or the person using deadly force knows or reasonably should have known the person is a law enforcement officer.

H.4301 (R412) was signed by the Governor on June 9, 2006.
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Old January 4, 2010, 04:38 PM   #18
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Just as important as presumptions covering the criminal charges are portions making the intruder pay all legal costs if they bring suit and do not prevail (loser pays).

Some states have allowed civil action to be pursued for otherwise non-criminal self defense shootings.
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Old January 4, 2010, 04:51 PM   #19
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So SC does not have legal open carry? If it were legal and I were to be open carrying I too would be covered, correct?
SC does not have legal open carry.

Quote:
I'm still unclear as to why you believe that the CCW license has any more rights than any other citizen in reference to protecting themselves.
Never said that. I simply said that to legally carry on the street you need a license. Yes the license does give you a right to carry as opposed to not having a license. If you carry anyway without a license it certainly makes it more complicated if you use your un-licensed carry firearm to defend yourself. The results are too complicated for me, but having the license is the best way to go. That is also what we were taught in class about SC law. That's the best and most simple I can say.

Quote:
I see no mention of CCW or CWP, is this an inference of your's?
Correct, that's under the laws for CWP.

http://www.scstatehouse.gov/code/t23c031.htm

My final (I think) is why break the law and take the chance that it will not have a negative effect on your rights...makes no sense to me.

Last edited by madmag; January 4, 2010 at 05:04 PM.
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Old January 4, 2010, 08:11 PM   #20
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Ok, just checking on that. I too have my CCW in WV and see no reason to tempt fate by carrying without it. I do remember an article written my Mas Ayoob where a convicted felon used a weapon (that he was clearly not supposed to own) and that fact was argued by his attorneys as the "docterine of competing harms" or the "docterine of two evils" whereas the commission of the one crime is outweighed my the risk of the other.
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Old January 4, 2010, 09:27 PM   #21
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madmag,

My apologies for the incorrect spelling of your user name in my prior post. It was completely unintentional.

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Old January 4, 2010, 09:34 PM   #22
Frank Ettin
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Quote:
Originally Posted by hillbillyshooter
...I was under the impression that in most places a person is allowed to break the law in order to prevent bodily harm or death. In the civil aspect of law I could see a problem but still not legal....
Quote:
Originally Posted by madmag
....If you carry anyway without a license it certainly makes it more complicated if you use your un-licensed carry firearm to defend yourself. The results are too complicated for me, but having the license is the best way to go....
In such a case, there are two issues: the use of force; and the weapons violation. If the use of force was justified, you might get off on that. But you could still get stung on the weapons violation.

The "poster child" for that outcome is Bernie Goetz, the 1984 Subway Vigilante. He defended himself with an unlicensed handgun in a New York subway from some armed robbers. He was tried for various assault related crimes and the weapons charge. He was acquitted of the assaults (the jury found his use of force to be justified self defense); but he was convicted and went to jail on the weapons charge (and he was hammered in a subsequent civil suit).

Of course, there's such a thing as prosecutorial discretion. So if you're a big enough hero (e. g., you use your illegal gun to save a bus load of developmentally disabled children from a gang of child rapists), the DA might let you skate. But I wouldn't count on it.
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Old January 4, 2010, 11:05 PM   #23
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knight0334
No problem. I am beginning to like the mad dog monicker....sounds mean.
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Old January 5, 2010, 11:37 AM   #24
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(e. g., you use your illegal gun to save a bus load of developmentally disabled children from a gang of child rapists),
Hilarious, it certainly would take one ccold-hearted DA to go you for such an act.
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Old January 5, 2010, 11:40 AM   #25
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My interpretation (always suspect) on the subjects under question is that the castle doctrine works best when your home is actually a castle. That's only partly a joke. Do your best to make your home secure but that's easier said than done. My own daughter managed to get into the house when she forgot her key once. But to follow on, it seems to me that once you are inside your home, you have already retreated!
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