Castle Doctrine, Dan Rather Reports

[Nnobby45]

That's pretty hard to believe. 5 out of 6 people think it's ok to chase down a shoplifter and shoot him? Heck, even I don't think that's ok and I'm a radical.

I don't support the practice, like most sensible people, but, it does stand out in contrast to those prosecuted as a result of public opinion when their actions were within the law. Would prefer neither, but would take the former before the latter.

[green-grizzly]

OuTcAsT:

If you could provide some useful information instead of advising to get more information I would appreciate it.

I agree my original explanation was a little simplistic, but I'd still like your expert opinion on why it is incorrect.

As I stated, under the common law you can use force in self-defense when you reasonably believed that such force was necessary to protect yourself from the imminent use of unlawful force by another person. A person may not use deadly physical force unless that person is in reasonable fear of serious physical injury or death. Self defense was an affirmative defense under the common law, meaning that the defendant had to prove that his acts were lawful by a preponderance of the evidence; the government did not have to prove that the defendant acted unlawfully beyond a reasonable doubt. By placing the burden on the defendant, it was up to the person acting in self defense to prove their use of lethal force was justified.

In your view is this correct? It is not clear from you post what you claim is not correct.

Of course not all states follow the common law anymore. For example, some states impose a duty to retreat (except in the home).

What the Castle Doctrine does, as I understand it, is that it turns the common law presumptions on their head in the home. Instead of the defendant having to prove that he acted lawfully when using lethal force, the defendant's actions are now presumed to be lawful when the bad guy entered the home unlawfully. A presumption can be rebutted, but the burden of proof is now on the government.

Here is Florida's Castle Law, which I believe was the first in the nation:

Florida:
A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if [t]he person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle ....

Here is my state's law:

Utah:
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.

These laws are fairly typical, although some are weaker.

Basically, when someone unlawfully enters a home the presumption is now that the use of lethal force was lawful. Intead of the defendant having to prove that lethal force was justified, the government now has to prove that it was not.

Do you view this as incorrect? Again, I can't tell from your posts what you think is wrong.

If I have something wrong here, please identify what it is.

[BillCA]

Green-Griz...

You seem to have a decent grasp of it. In any situation where a homicide¹ occurs an investigation by police & DA staff will attempt to determine if it was done lawfully or not.

It was this statement that raised some of the ruckus;

As I understand it, the Castle Doctrine basically does not allow prosecutors and juries to second-guess the use of deadly force in your own home. ... The Castle Doctrine basically says that when someone breaks into your house, you can kill them. You don't have to prove that your use of force was reasonable, or that you were threatened with deadly force, or that what you did was necessary, or that the threat was imminent. No one is going to second guess you in your house.

What the Castle Doctrine does is specify that the burden of proof is on the government when a person defends the place they are residing in from an unlawful intruder. The resident does not need to justify their use of lethal force within their own home to claim lawful self-defense.²

Police will look for ways to determine if there was not any justification. An unarmed dead man with no prior record, no signs of forced entry and no signs of any altercation will raise a lot of questions.³

This does not mean that the DA cannot try to indict or bring charges if there are too many unanswered questions. But the defender still has a 5th Amendment right to remain silent and let his attorney defend him.

The first thing the DA has to do is show there is doubt that the lethal force was necessary - such as the person being known or some other factors (e.g. shot in the back from far away, you're a hulking 6'6" ex-collegiate linebacker and the deceased was a skinny 5'3" teen, or the person was invited into the home). If he can show no unlawful entry or that no credible threat would have existed, then he can still bring about a conviction.

¹ Homicide is the killing of a human being, distinct from Murder.
² It removes the "affirmative defense" requirement for invoking self-defense. The shooter does not need to prove anything.
³ Not meant to imply someone with a criminal record would automatically be considered "fair game" or other silly nonsense.

[OuTcAsT]

Green-Griz...

You seem to have a decent grasp of it. In any situation where a homicide¹ occurs an investigation by police & DA staff will attempt to determine if it was done lawfully or not.

It was this statement that raised some of the ruckus;
Quote:
As I understand it, the Castle Doctrine basically does not allow prosecutors and juries to second-guess the use of deadly force in your own home. ... The Castle Doctrine basically says that when someone breaks into your house, you can kill them. You don't have to prove that your use of force was reasonable, or that you were threatened with deadly force, or that what you did was necessary, or that the threat was imminent. No one is going to second guess you in your house

There ya go, Bill nailed it (thanks) before I got back to the topic. You seem to have a better handle on it than your first post indicated. Hopefully you can see where the confusion came from ?

While the Castle laws go a long way toward giving the homeowner the benefit of the doubt, I just don't want anyone to go away thinking that it is a "license to kill" If it were, there might be a "Mother-in-Law" shortage really soon

If you could provide some useful information instead of advising to get more information I would appreciate it.

I agree my original explanation was a little simplistic, but I'd still like your expert opinion on why it is incorrect.

Again, I am no "expert" , that is why I advise that you do what I did, find a Lawyer in your area that deals with these types of cases, and discuss these laws with him, the education is well worth the money. And, keep his card in case you ever have to test those laws.

[skydiver3346]

As hard core as I am, I feel that chasing someone down and killing him for stealing some beer is surely not justified. Had the thief threatened the store keeper's life (while in the store and confronting him), that is another matter entirely. But chasing him down as he is leaving with the stolen beer is NOT justified in my opinion.

Besides, I always thought that the Castle Doctrine applied to your home and/or your property, etc. Didn't know it applied to a business or out in public.

[freakshow10mm]

The English common law was home only. Modern versions extend the protection to a vehicle as well as public places where you have a legal right to be, such as walking down the sidewalk. A place of business is considered as intimate and safe as your own home.

[Ricky B]

Didn't know it applied to a business or out in public.

That will vary state by state. Don't take what is posted here for one state to apply to another. BTW laws change from time to time; you might not get the memo but are responsible for knowing anyway.

And sometimes posters on TFL get it wrong.

So all this analysis is for discussion purposes only.

You want legal advice? Hire a lawyer.

[TexasFats]

In all of this discussion, I note that a lot of information may be true in one state, but not in another, due to differences in state law. In Texas, by law, a ruling of justifiable self-defence in a shooting means that the family of the crook who was shot cannot get a judgement. That is current Texas Law. Before about 2005 or 2007, the law was different. Note, however, that a an innocent bystander who was accidentally injured by a defensive shot can sue and collect. On another issue, in Texas there are a lot of circumstances beyond self defense that make a shooting justifiable, including burglery at night and protection of property. But, a lot of DA's will do everything that they can to find something to prosecute in that case. It depends on the county.

But, as I said before, other states have different laws, and even Castle Doctrine laws differ from one state to another.

[Nnobby45]

Did you understand the difference between having a simple possession stolen and having the effort and sacrifice made to acquire it stolen?

Good point. I believe the life of the criminal is, perhaps, more valuable than my property (unless it's vital to my survival).

However, I question the notion that his life is worth more than the lives of Americans who shed their blood to preserve our liberties---which include not being required to surrender our property.

I wonder if such a government requirement to "give it up to Bubba" might amount to tyranny, as well as spitting on the graves of many Americans whose sacrafices are what preserved those libereties.

The hard work I spent earning the money to purchase the property may have lesser value, but isn't something to be dismissed by political gas bags (or yes, even fellow citizens) who've always considered the criminal's rights as superceding mine.

I feel better now.

[BillCA]

Originally Posted by Skydiver3346

As hard core as I am, I feel that chasing someone down and killing him for stealing some beer is surely not justified. Had the thief threatened the store keeper's life (while in the store and confronting him), that is another matter entirely. But chasing him down as he is leaving with the stolen beer is NOT justified in my opinion.

Okay... now I am confused by your opinion.

I'll agree that chasing someone down and killing him over a "beer run" (value: about $8-$15) isn't justified.

But you say if the thief had threatened the clerk's life inside the store that's different. Yes, it would be called self-defense in that case.

But then you go on to say

But chasing him down as he is leaving with the stolen beer is NOT justified in my opinion.

Does that mean you advocate just letting the thief go? That the shopkeeper/clerk should not attempt to apprehend a thief once he gets outside the doors?

Or maybe you give up the pursuit once he hits the public sidewalk?

If an armed store clerk chases the thief threescore yards down the street and the thief turns and pulls a knife, would you say that clerk could invoke self-defense for shooting the thief?

[OuTcAsT]

Does that mean you advocate just letting the thief go?

IMO That would be correct, be a good witness. Unless he is willing to be detained and wait for LE.

That the shopkeeper/clerk should not attempt to apprehend a thief once he gets outside the doors?

That would be an unwise move IMO. The threat has ceased.

If an armed store clerk chases the thief threescore yards down the street and the thief turns and pulls a knife, would you say that clerk could invoke self-defense for shooting the thief?

I would posit that the clerk has then become the aggressor, and it would no longer be self defense but an attempt at vigilante style justice. Once you leave the safety of your shop to go play cops and robbers, (unless, of course, the clerk is LE) how could you claim self defense ? Self defense is for when trouble finds you, not when you go looking for it.

[Ricky B]

I would posit that the clerk has then become the aggressor, and it would no longer be self defense but an attempt at vigilante style justice. Once you leave the safety of your shop to go play cops and robbers, (unless, of course, the clerk is LE) how could you claim self defense ? Self defense is for when trouble finds you, not when you go looking for it.

The clerk has every legal right to pursue a thief. That does not make him the aggressor. Trouble found the clerk when the thief stole from the store. It is a natural human impulse to seek to recover property that has been wrongfully taken from you, and the law recognizes that. It is allowable to use reasonable force to recover the property.

Whether it is wise to do so is a different matter. Whether there will be a dispute about who pulled a knife first, etc., may cloud the facts in a real case.

But in this hypothetical case, the clerk has the right to chase the thief, and the thief has no right to use a deadly weapon to "defend" himself from being captured or from having the property recovered. Unlike some other situations we have discussed on TFL, here the thief is the first one to employ a deadly weapon, and he has absolutely no right to do so. The thief is the aggressor, and the clerk is entitled to defend himself.

[OuTcAsT]

The clerk has every legal right to pursue a thief. That does not make him the aggressor.

I never said there was no legal right to pursue the thief.

Trouble found the clerk when the thief stole from the store.

Then he should have handled it in the store.

It is a natural human impulse to seek to recover property that has been wrongfully taken from you, and the law recognizes that. It is allowable to use reasonable force to recover the property.

So recovering a six pack at gunpoint is reasonable force ? Please show me your States statute that allows that, I should like to be educated.

The thief is the aggressor, and the clerk is entitled to defend himself.

Sorry, not once the thief leaves that store. The threat is over, only the clerk escalating the situation puts him in danger, and thus gives him a reason to shoot. You may continue to advance this circular logic all you wish, but once the threat is diminished, the clerk is either safe, or puts himself in the place of aggressor.

Under your notion, we should not need LE agencies at all, since we have a legal right to pursue, arrest, or execute criminals.

And yes, I said execute, because your "circular logic" of ; "I will chase the criminal, and if he resists, he has put me in danger, so I can defend myself with lethal force" It is a self-fulfilling prophecy.

[armsmaster270]

Quote:
Another benefit of 'castle doctrine' is the family of the BG can't sue you in civil court if the shoot was ruled justifiable.

I was in a Justifiable shooting and the family tried to sue me until their P.I. told them they had a snowballs chance of winning and they dropped it on their own.

[OuTcAsT]

I was in a Justifiable shooting and the family tried to sue me until their P.I. told them they had a snowballs chance of winning and they dropped it on their own.

Of course, there is absolutely no law that prevents anyone from filing a civil suit for any shooting, it may lessen their chances to win, but they can certainly still sue.

[BillCA]

Hmmm.... maybe the laws are much different in Tennessee. Or maybe you should read up on both criminal law and evidence procedure.

Originally Posted by OuTcAsT

IMO That would be correct, be a good witness. Unless he is willing to be detained and wait for LE.

Under that theory, no merchant could remain in business very long. He might as well throw his merchandise out on the street for people to take.

Originally Posted by OuTcAsT

That would be an unwise move IMO. The threat has ceased.

What "threat"? We're talking a petty theft of beer or similar items.

In addition, in most retail establishments you cannot be arrested by their staff or security until you have exited the store. Stores like Target, Sears, Safeway, etc. cannot arrest you because you walked past the register lines. Only once you exit the store have you actually commited a shoplifting crime.

Originally Posted by OuTcAsT

I would posit that the clerk has then become the aggressor, and it would no longer be self defense but an attempt at vigilante style justice. Once you leave the safety of your shop to go play cops and robbers, (unless, of course, the clerk is LE) how could you claim self defense ? Self defense is for when trouble finds you, not when you go looking for it.

I would disagree. The merchant (or his agent - the clerk) has a right to pursue, capture and arrest the person for shoplifting under most state statutes. Because he is attempting to stop a crime and/or arrest a person he knows committed that crime, he does not give up his right to self-defense when he attempts to restrain the individual.¹

A thief, by being the instigator of a crime (shoplifting), upon being caught or seized as a result, cannot invoke a claim of "self-defense" without showing that he had reason to believe he was in danger of death or great bodily injury.²

¹ The merchant does not become an "aggressor" by acting lawfully under the statutes authorizing arrest and restraint of the criminal. He still retains his rights to self-defense.
² If the criminal actor resists capture with violent acts and the actions of the person(s) arresting him are reasonable under the circumstances, the criminal actor cannot justify the [officer's or citizen's] use of force as an excuse for self-defense unless it is clearly excessive or other evidence supports his claim.

[OuTcAsT]

Hmmm.... maybe the laws are much different in Tennessee. Or maybe you should read up on both criminal law and evidence procedure.

Well Thanks Bill, but I believe I am reasonably well versed on both in Tennessee, in fact TN has some of the most liberal laws concerning this type of crime, and pursuit. I made no legal claims, my statement was from a common sense standpoint.

Certainly it is "legal" to pursue a shoplifter, whether it is wise is an opinion.

Certainly you may legally pursue said shoplifter while you are armed, and if he pulls a weapon you may legally defend yourself.

My opinion was, and is, that in doing so, you have needlessly escalated the situation to the point where you have now possibly executed someone for petty theft.
(a misdemeanor)
Is it "legal"? certainly. Is it right ? Not in my opinion.

Now, if the thief produces a weapon inside the establishment, for the purpose of robbery (a felony) Then stopping the threat is justifiable. (IMO )


As a side note, you may find it interesting to know that in TN, not only is it legal to pursue a felon, you may even break in his own door or window to make an arrest. (just like a Real LEO)

There is also, currently, a large bruhaha about such practices by private citizens, and "armed security" mall ninjas, and their use of excessive force. Seems the private citizen just might not have the training to know when enough is enough.


A rather "Big Box" chain of stores that is one of my customers has come up with the right idea concerning this type of crime, they use video as evidence, then, instead of a "pursuit" they casually follow the person, call LE, and wait. Or, write down a license plate number, and obtain a warrant. The video is their evidence, seems like a much better plan to me, and nobody takes the risk of killing, or being killed, over a six-pak.

[Al Norris]

I believe we have wondered far afield of Castle Doctrine, when we begin discussing theft, shoplifting and lawful pursuit.

Take it to another thread, as this one's done.