Castle doctrine

A Castle Doctrine (also known as a Castle Law or a Defense of Habitation Law) is an American legal doctrine that designates a person's abode (or, in some states, any place legally occupied, such as a car or place of work) as a place in which the person has certain protections and immunities and may in certain circumstances use force, up to and including deadly force, to defend against an intruder without becoming liable to prosecution. Typically deadly force is considered justified, and a defense of justifiable homicide applicable, in cases "when the actor reasonably fears imminent peril of death or serious bodily harm to himself or another". The doctrine is not a defined law that can be invoked, but a set of principles which is incorporated in some form in the law of most states.

The legal concept of the inviolability of the home has been known in the West since the age of the Roman Republic. The term derives from the historic English common law dictum that "an Englishman's home is his castle." This concept was established as English law by 17th century jurist Sir Edward Coke, in his The Institutes of the Laws of England, 1628. The dictum was carried by colonists to the New World, who later removed "English" from the phrase, making it "a man's home is his castle", which thereby became simply the Castle Doctrine. 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, and since the late twentieth century bailiffs have also had increasing powers of entry.

The term "Make My Day Law" arose at the time of the 1985 Colorado statute that protects people from any criminal charge or civil suit if they use force – including deadly force – against an invader of the home. The law's nickname is a reference to the line "Go ahead, make my day" uttered by actor Clint Eastwood's character Harry Callahan in the 1983 film Sudden Impact.

Conditions of use

Each state differs in the way it incorporates the castle doctrine into its laws, what premises are covered (abode only, or other places too), what degree of retreat or non-deadly resistance is required before deadly force can be used, etc.

Typical conditions that apply to some Castle Doctrine laws include:^{[citation needed]}

• 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—for example, the Castle Doctrine does not give the 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 or instigated an intruder to threaten or use deadly force.

In all cases, the occupant(s) of the home must be there legally, must not be fugitives from the law or aiding or abetting another person in being a fugitive from the law, and must not use force upon an officer of the law performing a legal duty^{[citation needed]}.

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 lawsuit filed on behalf of the assailant for damages or injury resulting from the lawful use of non-excessive force. Without this clause an assailant can sue for medical bills, property damage, disability, and pain and suffering as a result of the injuries inflicted by the defender, or their next-of-kin may sue for wrongful death in the case of a fatality. Even if successfully rebutted, the defendant (the homeowner defender) may have to pay high legal costs as a result of such lawsuits; without immunity, such civil action could be used for revenge against a defender acting lawfully.

Use of force in self-defense which causes damage or injuries to other parties who were not acting criminally may give rise to prosecution and damages.

Duty-to-retreat

"Castle laws" remove the duty to retreat before using deadly force when one is in their home or in some U.S. states just simply where one can legally be.

Stand-your-ground

Main article: Stand-your-ground law

In some states in the United States, one can use deadly force in any location one is legally allowed to be without first attempting to retreat. Such laws remove the requirement that the threat must occur on one's own property.

Origins

What is there more holy, what is there more carefully fenced round with every description of religious respect, than the house of every individual citizen?

— Cicero, On his House, 41

According to 18th-century Presbyterian minister and biblical commentator Matthew Henry, the prohibition of murder found in the Torah 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.”

A man's house is his castle, and God's law, as well as man's, sets a guard upon it; he that assaults it does so at his peril.

— Matthew Henry’s Commentary on Exodus 22

The American interpretation of this doctrine is largely derived from the English Common Law as it stood in the 18th century. In Book 4, Chapter 16 of William Blackstone's Commentaries on the Laws of England, he states 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; quid enim sanctius, quid omni religione munitius, quam domus unusquisque civium? 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, nusancers, 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.

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.

State-by-state positions

For the states with a Castle Doctrine, an external link is provided to the text of the specific statute, if available. If a direct link is unavailable, for example if the destination website uses JavaScript, the statute name and/or number is listed.

States with a Stand-your-ground Law

No duty to retreat, regardless of where attack takes place.

Main article: Stand-your-ground law

• Alabama
• Arizona
• Florida
• Georgia
• Indiana
• Kansas
• Kentucky
• Louisiana
• Michigan
• Mississippi
• Montana
• Nevada
• New Hampshire (A proposed law was vetoed in 2011, but the veto was overridden and the new law took effect November 2011.)
• North Carolina
• North Dakota
• Oklahoma Title 21§1290.1 et seq
• Pennsylvania (Recent legislation extends Castle Doctrine to occupied vehicles and the work place, and stand-your-ground rights extended to any place the defender has a right to be with specified exceptions.)
• South Carolina
• Tennessee 2007 Tenn. Pub. Acts Ch. 210 (Amends Tenn. Code. Ann. § 39-11-611)
• Texas (Established for individual's habitation in 1995 by House Bill 94 and extended to vehicle or workplace effective September 1, 2007 by Senate Bill 378. Senate Bill 378 also "abolishes the duty to retreat if the defendant can show he: (1) had a right to be present at the location where deadly force was used; (2) did not provoke the person against whom deadly force was used; and (3) was not engaged in criminal activity at the time deadly force was used.")
• Utah
• Washington (Homicide justifiable in the lawful defense of self or other persons present; and there is imminent danger of such design being accomplished ...or in the actual resistance of an attempt to commit a felony... or upon or in a dwelling, or other place...)
• West Virginia

States with a Castle Law

No duty to retreat if in the home.

• Alaska - Alaska Statute 11.81.335(b) provides that an individual has no duty to retreat before using deadly force if they are in their home, their workplace, protecting a child or protecting a family member. The 27th Alaska Legislature is currently considering H.B. 80 "An Act relating to self defense in any place where a person has a right to be." which would essentially eliminate the duty to retreat for any place a person is legally, making Alaska a "stand your ground" state. However, an identical measure, H.B. 381, failed to pass the 26th Alaska Legislature.
• California California Penal Code § 198.5 sets forth that "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." This would make the homicide justifiable under CPC § 197. CALCRIM 506 gives the instruction, "A defendant is not required to retreat. He or she is entitled to stand his ground and defend himself and, if reasonably necessary, to pursue an assailant until the danger ... has passed. This is so even if safety could have been achieved by retreating." However, it also states that "[People v. Ceballos] specifically held that burglaries which 'do not reasonably create a fear of great bodily harm' are not sufficient 'cause for exaction of human life.'” The court held that because the defendant had constructed a gun-firing trap, the doctrine did not apply because mechanical devices are without mercy or discretion.
• Colorado "...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." 18-1-704.5 Use of deadly physical force against an intruder.
• Connecticut
• Hawaii (Retreat required outside the home if it can be done in "complete safety.")
• Idaho
• Illinois (Use of deadly force justified. Specific legislation prevents filing claim against defender of dwelling. Illinois has no requirement of retreat.)
• Iowa (No duty to retreat from home or place of business in defense of self or a "third party".)
• Maine (Deadly 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)
• Maryland See 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.)
• Massachusetts
• Minnesota No 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 ) This isn't as clear as it appears, however. There are four cases in Minnesota where duty of retreat was upheld.
• Missouri (Extends 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.)
• New Jersey (Retreat 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)
• Ohio (Extends to vehicles of self and immediate family; effective September 9, 2008. Section 2901.09)
• Oregon. (ORS 161.209-229. 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).")
• Rhode Island
• Wisconsin (Assembly Bill 69, signed December 7, 2011)
• Wyoming

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.
• New Mexico
• New York - Allows for the use of "reasonable force" in self-defense against Home Invasion.
• 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." SD Codified Laws 22-16-34 (2005).
• Vermont

Worldwide

England and Wales

In English common law a defendant may seek to avoid criminal or civil liability by claiming that they acted in self-defence. This requires the jury to determine whether the defendant believed that force was necessary to defend themselves, their property or to prevent a crime, and that the force used was reasonable. 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. Please note that the common law duty to retreat was repealed by the Criminal Law Act 1967. This duty never existed when a person is somewhere they have a lawful right to be, but due to the repeal, now extends to public places, etc.

Israel

Israeli law allows property owners to defend themselves with force. This law was introduced in response to the trial of Shai Dromi, a Jewish farmer who shot Arab intruders on his farm late at night.

Italy

Italy passed a law in 2005 that would allow property owners to defend themselves with force.

Australia

Australian States have several differing laws. However, 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.

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.

See also

• Duty to retreat, obligation to withdraw rather than attack, sometimes overridden by castle doctrine
• Trespasser
• Stand-your-ground law, which applies the Castle doctrine to any place.
• Self-defense (Australia)

Related sayings

• a man's home is his castle
• an Englishman's home is his castle