Thursday, April 6, 2017

The Castle Doctrine And You

Before I start all this I want to state that I am not a lawyer. My Cousin is and my Son-in-law is going to law school, but that’s as close as it gets. Nothing I say in this blog can be considered legal advice. Each state is a little different and you must know the laws where you reside. Ask a certified lawyer and know your laws and rights.
I talked to a guy in my ward the other day who had just taken some shooting classes. He told me, “Thank goodness for the Castle Doctrine” huh?” I asked what he meant and he told me that if anyone broke into his house he’d shoot first and ask questions later. I told him he had better learn the laws of this state and likely find a good 2nd amendment lawyer to keep on speed-dial. These things aren’t always cut and dry. You should really know the laws in your state. But the Castle Doctrine is similar in most states.
The Castle Doctrine is a self-defense theory which gives a homeowner the right to protect his home with the use of deadly force. The Castle Doctrine originally emerged as a common law theory. Since then, a majority of states have implemented some statutory version of the Castle Doctrine. If a defendant successfully presents a Castle Doctrine defense, then he is completely exonerated of any wrong doing. Read on to learn more about the proof required to assert a self-defense theory based on the Castle Doctrine.
History of Castle Doctrine
As mentioned, the Castle Doctrine first began as a common law theory. This means that it wasn’t a written law, but rather an understanding everyone had of the rule. Under common law, a person could use deadly force to defend their home, but only after using every reasonable means to avoid the danger. Some states still use the common law version of the Castle Doctrine, but most states have passed statutes to codify (or write down) the common law rules. The rules were passed so that everyone would understand what is required or expected of them before resorting to the use of deadly force. Even though the Castle Doctrine statutes differ by state, many states utilize the same basic requirements for a Castle Doctrine defense.
Current Requirements of Castle Doctrine
The statutory definition of Castle Doctrine is far more formal than the common law version. States place limitations on where, when, and who can use deadly force, and the extent of force allowed. As with any self-defense theory, the burden of proof for a Castle Doctrine defense is on the defendant. The first component of a Castle Doctrine defense is that a person must be inside of his home. Home or habitation in Castle Doctrine statutes tend to be interpreted very strictly. The structure must be the place where the person regularly resides, like a house, apartment, or mobile home. The defendant must be inside the structure. Some defendants have attempted to use the Castle Doctrine to defend the use of deadly force in their front yards. Courts have rejected this and said that the statute is very clear: in order to use the Castle Doctrine, the person must be in the home.
The second component is that the victim must be attempting to commit or have committed an unlawful entry into the defendant’s home. Walking across a person’s front yard will not qualify. There must be some actual evidence that the victim was at least attempting an unlawful entry. The Castle Doctrine will not apply to a person who was in the home lawfully, but the defendant decided to force out. Similarly, the defendant cannot be the first aggressor of the confrontation with the alleged victim. For example, if a defendant’s neighbor comes over for a casual visit, but the defendant decides to assault the victim after the otherwise consensual conversation turned ugly, the defendant as the first aggressor could not use the Castle Doctrine as a defense. Many states, like Indiana, prohibit the use of force against peace officers as well. Proving that the victim was engaged in an unlawful entry is critical to a Castle Doctrine defense because the unlawful entry will affect a defendant’s right to use deadly force.
The third component of the Castle Doctrine is proving that the use of deadly force was reasonable. Many states follow Florida and Mississippi, and actually have a presumption in their Castle Doctrines that if a person is entering a home unlawfully, that he is doing so with the purpose to commit an act of force or violence. This means the defendant’s burden of proof regarding the use of force is reduced because he doesn’t have to put on more evidence of reasonable. Some states do not have this presumption. Instead of proving just an unlawful entry, a defendant would also have to show that he was in actual danger of death or major bodily injury from the person trying to enter his home. These states do not authorize the use of deadly force to protect only property. In these few states, if a defendant does not prove he was in real danger of physical injury, then he cannot claim or use a Castle Doctrine defense.
The last major component, and most contested, of the Castle Doctrine is the duty to retreat. Older common law versions of the Castle Doctrine required some duty to retreat or avoid the conflict. However, after writing their own Castle Doctrine statutes, many states no longer require defendants to run from their home or to another area of their home before using deadly force. The states are split on the issue of this duty because of the number of incidents of people using deadly force on what turned out to be serious misunderstandings of the Castle Doctrine. To the extent possible, any person should know and understand the duty to retreat laws in their state before using deadly force
Remember this initials: A O J P. This what needs to be proved to use self-defense as a reason for shooting an intruder.
Ability
Opportunity
Jeopardy
Preclusion
1. Ability – Deals with the capacity to injure. The person we defended ourselves from had the real physical ability to hurt us. To justify lethal force that ability must include the capacity to cause great bodily harm or death. A person with a knife, gun, bat, or other implement that can be used as a weapon certainly has the physical capacity to cause serious harm.
2. Opportunity – Deals with time and distance. The threat must be immediate. A “dirt bag” with a knife 5 feet away has the opportunity to harm us but if we insert a 12′ fence topped with razor wire between us, the threat is no longer immediate. Switch the knife for a handgun and the threat is again immediate.
3. Intent (Jeopardy) – Deals with intentions to cause harm. Every day I interact with and am surrounded by hundreds of people who have the physical capacity (ability) and are within distances where they can immediately cause great bodily harm to me or my loved ones and I could easily cause harm to them. Lucky for them and for me, neither of us mean any harm. We lack intent. We can begin to try to understand intent by looking at body language, words, previous actions or patterns of behavior but we can’t read minds.
4. Preclusion – Deals with exhausting all other options. Using lethal force can only be used as a tool of last resort. You must do anything and everything else that doesn’t put you at risk BEFORE self-defense is an option. Talk your way out of it, run away, etc. If there is a way to avoid lethal force without harming you, you have to give it a try.
Not all situations apply with all of these 4 points. In certain states just breaking into your home may be all that is needed. That’s why it’s important to know your laws.
I don’t want to shoot anyone. But if I have to I want to be sure it is legal, moral, and will stop whatever threat is coming my way. Be very careful with this especially when attempting to defend someone who you do not know. It you come upon a scene and are not sure what is going on, it may be wise to not intervene. You don’t know who the good guy is trying to defend themselves or the attacker is. Be very careful in these situations.
To learn more:
What Every Gun Owner Needs to Know About Self-Defense Law (free download)
This is a free PDF download and has some good information.
Stay safe and learn your rights and laws.
Semper Paratus
Check 6
Burn

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