Castle Doctrine

[RWK]

In another thread (http://www.thefiringline.com/forums/showthread.php?t=168748&page=1&pp=25), a member mentioned the “Castle Doctrine” and suggested that within his home an individual could essentially assert his right to self-defense in an unlimited manner.

While I believe that fairly summarizes the “Castle Doctrine”, I want to point out that state laws differ on its application. In some/most states, the homeowner has the unconstrained right of self-defense. However, in a few states, he does not and must (for example) retreat within his home, if withdrawal is possible.

While I personally advocate an unrestricted “Castle Doctrine”, I have initiated this thread because I would not want any TFL members to believe it applies – without limits – in all jurisdictions. KNOW YOUR STATE’S LAW and, additionally, understand that prosecutorial discretion is likely to apply (imagine how Chuck Schumer would use such a situation for political posturing and for advancement of his anti-firearms agenda if he were the DA).

[BatmanX]

This is a great reminder.
On the record, in the state of MN, you must be cornered with no means to retreat.
Off the record, I have been told many times if they are in your house (not at the door) you SHOULD be ok to use force.

I think I will go with the "cornered animal" scenario myself rather than the castle principal. They can have my crap.

(Different story when we have children in a few years)

[novus collectus]

What is Va's law when it comes to the "castle" or "cornered" scenarios?

[eka]

In Virginia, you are not required to retreat inside your home. The use of deadly force is not automatic. If you must use deadly force, you will have to be able to articulate why you felt it was necessary. Basically, you do not have to run out the back door and let someone take over your home. You can stand your ground and use the necessary and reasonable force to remove them from your home or hold them there. In Virgina, citizens can make a citizen's arrest for felony offenses committed in their presence. Normally not a good idea at all, for liability reasons and not to mention safely reasons. But, if someone enters your home, that is a burglary and a felony. You can remove them or arrest them basically and use the necessary and reasonable force to accomplish that. You also do not have to hold a concealed carry permit to carry a concealed weapon in your home or on your own property. These things only apply to your home. Once you go out into public areas, you are required to retreat from a possible threat, if possible, prior to using any type of force to defend yourself. This is not only deadly force, but any force.

Hope this helps.

[RWK]

I am not an attorney; however, I believe that in Virginia an individual does not have the requirement to retreat within his dwelling.

With this said, the overriding Virginia policy re the use of lethal force for self-defense seems to mandate two elements: (a) an immediate threat of (b) death or serious injury to innocents. Therefore, if a drunk mistakenly broke into your home and passed out on the floor – hey, I went to college and graduate school decades ago, and I know these things can happen – I do not believe you would have the right to employ deadly force.

[novus collectus]

eka,
I have been seeking the answer that you have provided for a looong time now. I think that Md has the same type of laws, but the District Attorneys in Md have been trying to indict people for shooting based on their interpretations of the laws. Since my LEO sister has told me the DA's interpretations (and hers), I have wondered what would happen if you were in the process of a citizen's arrest of the felon that resisted or provided a "reasonable" threat. Md has a law saying that you have the right to do a citizens arrest as well but they have been harsh to anyone who shoots an intruder in their home unless they were completly trapped and didn't have a window to escape out of.
Thank You!!!

[brickeyee]

In Virginia you are not required to retreat in your house or public if you did not invite the attack. Exchanging words is inviting. Only if you indicate by 'acts and words' that you in no way desire to continue the altercation and are then pursued can you escalate the fight.
You must feel in danger of death or grievous bodily harm to yourself or others to use deadly force. A 'resonable man under the circumstances' rule applies.
Any use of deadly force is very likely to result in a protracted legal battle, particulalry in the more liberal areas of the state (Nothern Va, Richmond).
Virginia has justifiable and excusable case law. Justifiable is basically unprovoked, excusable often involves some action on the defenders part and an attacker that does not desist despite warnings to break off and a 'acts and words' indicating you do not desire to continue the fight.
Like many states, there are no stuatuates authorizing deadly force, only case law defining when its use has been found justifiable or excusable.
The Virginia Gubn Owners Guide has a pretty good summary of the law, both statuate and case.

[progunner1957]

Batman, you have my sympathy; Minnesota is a beautiful state (I used to live in Ely), but there are way too many Demosocialists/liberals living there, as reflected in the laws and the voting results. If you ever face an intruder, you could always let him back you into a room or corner where you have no escape route and then... :D

Unfortunately, the courts have made letting thugs take your possessions the lesser of two evils, which gives me a king size case of the red*ss; Your possessions are YOURS - YOU worked and earned them, not some scumbag thief or some skank prosecuting attorney. You should be able to defend them by any means necessary, including the use of deadly force - that is, if our "justice" system had its collective mind right.

[novus collectus]

Any use of deadly force is very likely to result in a protracted legal battle, particulalry in the more liberal areas of the state (Nothern Va, Richmond).
Just a little off topic, but that is the first time I have aver heard of Richmond being referred to as a liberal area. Maybe I just think it is conservative by Md standards.

Brickeye, RWK, and eka, than you for enlightenning me to Va law and it will help me to understand Md law.

RWK,
I was thinking about starting a thread that dealt with the same topic and I am glad that you did it. :)

[chris in va]

He probably said Richmond simply because it is the seat of governing power for the state...despite what things may look like (DC).

[brickeyee]

The mayor and city council tend to be rather liberal in the city of Richmond, despite it being the state capital. Parts of Tidewater have distince liberal leanings. All you need to do is look over the county by county presidential results to find those blue areas.

[Metal Head]

I've had my house broken into before and even had a rifle stolen. I swore if I was home and it happened again the burgler would not be walking out. Right, wrong , leagal or not, they're getting one right between the eyes. :mad:

[MX5]

There's one in every crowd.

[mylesd]

Anyone have an idea of what the law is in AZ? I live in an apartment complex with a lot of stupid college kids who enjoy messing around with people (occasionally while drinking). Its happened a couple times where people have been at my door just short of beating it down with the intention of getting in and starting a fight for whatever reason. So where do I stand on my ability to use force? Generally I have my SA XD40 with some hollow points in the night stand (walls are thin and would hope a hollow point would slow down and/or stop before it went through another wall or two). But mainly I have my Mossberg 590 12ga with 1 shot chambered that is just the wadding as a "warning shot". I know it hurts cause I have been shot with one. So yea, how does Arizona feel about this Castle Doctrine idea?

Mylesd - Tucson, AZ

[univtxattorney]

In Texas, not only are you authorized to use deadly force to protect yourself or others, but you are also authorized to use deadly force to protect your property.

A person is justified in using deadly force against another to protect his property to the degree he reasonably believes the force is immediately necessary to prevent the other's imminent commission of arson, burglary, robbery, theft during the nighttime or criminal mischief during the nighttime, and he reasonably believes that the property cannot be protected by any other means.

A person is justified in using deadly force against another to pervent the other who is fleeing after committing burglary, robbery, or theft during the nighttime, from escaping with the property and he reasonably believes that the property cannot be recovered by any other means; or, the use of force other than deadly force to protect or recover the property would expose him or another to a substantial risk of death or serious bodily injury. (Nighttime is defined as the period 30 minutes after sunset until 30 minutes before sunrise.)

[jburtonpdx]

from escaping with the property and he reasonable believes that the property cannot be recovered by any other means

Sounds very subjective to me. I wonder what direction case law has taken this?

I mean does insurance paying you back for the tv count as "recovered by other means"?

I understand that in TX the general view is more conservative and generaly more in favor of self defence then say Comunist Ohio, however I would still tend towards only defence of life and body not property. Only to save my own backside from the one Prosecuting attorney that is bored on that bad day that somebody breaks into my home and is getting away with my 400lb TV by the time I get around to dealing with the lowlife scum...

[novus collectus]

Univtxattrney,
I will never forget the incident in Texas that made international news when the drunk Japanese student was harrassing the Texas family and was shot. I totally sympathised with the man and his family that felt he had to shoot the student. He gave plenty of warnings with possibly threatening respones from the student while the homeowner's family was close behind him. It made international news because, as it truned out, the student did not know English and the Japanes did not feel that it was justified (after all, he was such a good kid and an A student :rolleyes: ). The guy had no idea what the student would do to his family, and the student should have realised that a gun pointed at you by a guy who is yelling in a threatenning manner for a few minutes means that you run or surrender. Even if he was drunk and didn't understand English, the student should have stopped what he was doing.

[univtxattorney]

I would still tend towards only defence of life and body not property.

I could not agree more. If I wake up and see someone outside that is running off with my stereo, my first move is to my gun. However, it is only in case the guy decides to come back. If he is making off with my property and is obviously not posing a threat to my life or my family's life, then I will call 911 and let insurance pay.

The problem is, if you find someone who is willing to break into your house in the middle of the night, you never know what he is willing to do. You have to assume that he is armed and that he is out to harm you. If I find him in the house, I am going to make these assumptions and act properly.

I'll never forget my first year criminal law professor telling us that, in Texas, you are justified in shooting someone that is out the front door if they are stealing your toaster. I am not sure how the case law has developed on this matter, because I don't practice criminal law. However, he was pretty adamant that you could exercise this right. As for me, I'd let the toaster go. :) If you are prosecuted, even if you eventually get off, you are going to be out about $20,000. You can buy a nice toaster for $20,000.

[univtxattorney]

Under Tex. Penal Code Ann. § 1.07(42), a reasonable belief is a belief that would be held by an ordinary and prudent person in the same circumstances as the actor.

This is fairly subjective. You give the question to the jury and let them decide what is reasonable under the circumstances. Like Churchill said about democracy, this is the worst way to decide things, except for all the others. :)

[univtxattorney]

I will never forget the incident in Texas that made international news when the drunk Japanese student was harrassing the Texas family and was shot.

Believe it or not, I never heard of that incident. Do you have a link to a story or could you tell me approximately when it happened? That sounds awful for all involved.

[novus collectus]

Since I currently have access to Lexisnexis (not the law part though) I will try to find it for you. It was possibly 10-15 years ago,perhaps, maybe, IIRC. Sad story for all involved. The homeowner was not indicted and I don't think they even charged him.

[novus collectus]

I was wrong, it was Baton Rouge La.. The date was Oct 17 1992. The man's name was Rodney Peairs (I did spell it correctly if the news story spelled his name correctly). He was acquited the next year.

Man!! I love Nexislexis, and I am going to miss it when I graduate.

[RWK]

As the fellow who initiated this thread, I want to offer a few PERSONAL OPINIONS:

a) Obviously, I would be willing to use lethal force, were I COMPELLED to do so, to defend innocent life from an imminent, grave threat.

b) However, I would not be willing to use deadly force to defend my property -- especially inconsequential property, such as the aforecited “toaster” example.

c) While this decision has a personal ethical component, the driving factors are practical. Even in a GREAT state like Texas (where the statues permit such force under broad conditions), shooting/killing the felon is likely to result in considerable expense (attorneys, potential civil lawsuits, and so forth) and hassle (police investigation, potential loss of you firearm, possibly incarceration, etc.). I simply don’t think it’s worth the troubles, especially since I am a prudent, well-insured individual.

d) In several ways, I am sorry to have reached this conclusion (“c" above), since it seems logical that only when criminals understand that there are real, direct, and substantial consequences for their illegal action will they be dissuaded from doing so.

[univtxattorney]

I simply don’t think it’s worth the troubles, especially since I am a prudent, well-insured individual.

Very well said...

[ahenry]

jburtonpdx,
Sounds very subjective to me. I wonder what direction case law has taken this?
I mean does insurance paying you back for the tv count as "recovered by other means"? Nope. “Recovered by any other means” means recovering the specific item being stolen, not insurance paying you for the item. My own personal opinion (supported by my personal research) is that it also doesn’t include the police recovering the property at some later date. In other words, to me personally, the law means recovering the property right then and there by some means other than force.

That’s the legal side of things here in Texas. Obviously everybody has a different view of how they would personally choose to act under that law. For myself, your damn right, I would use deadly force to stop a thief taking off with my property. It’s the principle of the thing.

[pistolpete]

I just moved from a red state (Ohio) to a VERY blue state (Maryland). Anyone know the law out here?
I think it goes something like this-
If someone breaks into your house you can't, curse at them, call them gay or homosexual, inquire about there race or ethnicity, tell them to leave, make any threatening gestures, ask why, refuse to make them dinner, or intentionally hurt their feelings. :eek:

[brickeyee]

The last good answer heard for Maryland was retreat as far as possible and then you may only use deadly force if threatened with same.
My sympathy on your move to the People's Democratic Republic of Maryland.

[novus collectus]

Pistol Pete,
Read the earlier part of this thread where Va laws were discussed. Md laws seem to be very similar and the "must retreat" part may (or may not) be excepted when you are trying to do a citizens arrest. Md District Attorneys usually try to prosecute someone who has defended themselves when it ends up with a fatal result, even if it occurred in their own home.

[Brit]

(4) The court shall award attorney's fees, court

30 costs, compensation for loss of income, and all expenses

31 incurred by the defendant in defense of any civil action

5

CODING: Words stricken are deletions; words underlined are additions.

Florida Senate - 2005 SB 436 2-361A-05

1 brought by a plaintiff if the court finds that the defendant

2 is immune from prosecution as provided in subsection (1). The

3 plaintiff and the plaintiff's attorney are jointly and

4 severally liable to the defendant for the payment of fees and

5 costs.


The above is a slice from the Castle doctrine Law that has been signed by Governor Bush, and comes in to force Oct first, 2005.

The amazing part of it is they have aimed at the Lawyers who charge fees when the know they have no legal grounds, or every chance of putting you in the poor house, with their actions, are now liable for frivolous law suits, love it.

See Joe Lawyer out of his house!

Love Florida, all this, and sunshine as well.