A castle doctrine (also known as a castle law or a defense of habitation law) is a legal doctrine that designates a person's abode (or, in some countries, any legally occupied place [e.g., a vehicle or workplace]) as a place in which that person has certain protections and immunities permitting him or her, in certain circumstances, to use force (up to and including deadly force) to defend himself or herself against an intruder, free from legal responsibility/prosecution for the consequences of the force used. 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 him or herself 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 many states.
The legal concept of the inviolability of the home has been known in Western Civilization 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 the 17th century jurist Sir Edward Coke, in his The Institutes of the Laws of England, 1628:
For a man's house is his castle, et domus sua cuique est tutissimum refugium [and each man's home is his safest refuge].
The dictum was carried by colonists to the New World, where it has become known as the castle doctrine. The term has been used in England to imply a person's absolute right to exclude anyone from his home, although this has always had restrictions, and since the late twentieth century bailiffs have also had increasing powers of entry.
Another term, the "Make My Day Law", arose in the USA at the time of the 1985 Colorado statute that shielded people from any criminal/civil suits for using 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 "Dirty Harry" Callahan (in the 1983 police film Sudden Impact).
Justifiable homicide inside one's home is distinct, as a matter of law, from castle doctrine's no duty to retreat therefrom. Because the mere occurrence of trespassing—and occasionally a subjective requirement of fear—is sufficient to invoke the castle doctrine, the burden of proof of fact is much less challenging than that of justifying a homicide. With a mere justifiable homicide law, one generally must objectively prove to a trier of fact, beyond all reasonable doubt, the intent in the intruder's mind to commit violence or a felony. It would be a misconception of law to infer that because a state has a justifiable homicide provision pertaining to one's domicile, it has a castle doctrine, exonerating any duty whatsoever to retreat therefrom.
The use of this legal principle in the USA has been a matter of international controversy in relation to a number of cases, including the deaths of the Japanese exchange student Yoshihiro Hattori and the Scottish businessman Andrew de Vries.
- 1 Conditions of use
- 2 Practice in the United States
- 3 State-by-state positions
- 4 Outside the USA
- 5 See also
- 6 Notes
Conditions of use
|This section needs additional citations for verification. (December 2013)|
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:
- 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 (the castle doctrine does not allow a 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/instigated an intruder's threat or use of deadly force.
In all cases, the occupant(s) of the home: must be there legally; must not be fugitives from the law, themselves, or, aiding/abetting other fugitives; and, must not use force upon an officer of the law performing a legal duty.
In Colorado, the make-my-day statute provides the occupant with immunity from prosecution only for force used against a person who has made an unlawful entry into the dwelling, but not against a person who remains unlawfully in the dwelling.
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 civil lawsuits filed on behalf of the assailant (for damages/injuries resulting from the force used to stop them). Without this clause, an assailant could sue for medical bills, property damage, disability, and pain & suffering as a result of the injuries inflicted by the defender; or, if the force results in the assailant's death, his/her next-of-kin or estate could launch a wrongful death suit. Even if successfully rebutted, the defendant (the homeowner/defender) may still have to pay high legal costs leading up to the suit's dismissal. Without criminal/civil immunity, such civil action could be used as revenge against a lawfully acting defender (who was, originally, the assailant's victim).
Use of force in self-defense which causes damage or injuries to other, non-criminally-acting parties, may not be shielded from criminal or civil prosecution, however.
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 in one's own dwelling.
Culpability of intruder
In Colorado, the make-my-day statute "was not intended to justify use of physical force against persons who enter a dwelling accidentally or in good faith." In other words, "the unlawful entry element requires a culpable mental state of 'knowingly' on the part of the intruder."
Practice in the United States
According to 18th-century Presbyterian minister and biblical commentator Matthew Henry, the prohibition of murder found in the Old Testament 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.”
In early America
By the 18th century, many US state legal systems began by importing English common law such as Acts of Parliament of 2 Ed. III (Statute of Northampton), and 5 Rich. II (Forcible Entry Act 1381) in law since 1381—which imposed criminal sanctions intending to discourage the resort to self-help. This required a threatened party to retreat, whenever property was "involved" and resolve the issue by civil means.
Then as now, there were English politicians who were for or against the use of self-help over state-help. William Blackstone, in Book 4, Chapter 16 of his Commentaries on the Laws of England, proclaims 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 uniusquisque 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, nuisancers, 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.
In 1841, The Preemption Act was passed to "appropriate the proceeds of the sales of public lands... and to grant 'pre-emption rights' to individuals" who were already living on federal lands (commonly referred to as "squatters"). During this same period, claim clubs sprung up all over the US advocating vigilance and the castle doctrine. This was in concurrence with the culture of manifest destiny which led to westward expansion and the American Indian Wars, the last of which ended by the 1920s.
In the American Frontier
On the American frontier, the doctrine of no duty to retreat extended outside a residence. It asserted that a man in an altercation that he did not provoke was not obliged to flee from his attacker, but was free to stand his ground and defend himself. A state Supreme Court justice wrote in 1877,
Indeed, the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed.
American West historian Richard M. Brown wrote that under the circumstances, for a man in the American West to flee under such circumstances would be cowardly and un-American. Legendary dentist and gambler Doc Holliday successfully used this defense when he shot Billy Allen as he entered a saloon. Holliday owned Allen $5 which Allen wanted paid and had threatened Holliday. Although Allen was unarmed at the time, Holliday had received reports that Allen had been armed and looking for him earlier in the day. During the subsequent trial, Holliday asserted he was within his rights and the jury agreed. He was acquitted on March 28, 1885.
Today, the majority of American states have construed their statutes of forcible entry, both penal and civil, in such a manner as to abrogate the common law privilege to use force in the recovery of possession of land. A minority of states, however, have taken the view that their forcible entry statutes have not deprived a defendant with the right to immediate possession of land of his common law privilege to use reasonable force to regain possession thereof.
States with a castle law
Castle doctrine lays down that there is no duty to retreat from an intruder in one's home. A justifiable homicide which occurs inside one's home is distinct as a matter of law from castle doctrine's no duty to retreat. As such, states with justifiable homicide provisions in pertaining to one's domicile, do not in themselves authorize indiscriminate violence therein—the mere fact that one is trespassing is no defense per se to justifying homicide.
|Alabama||§ 13A-3-23||"Use of force in defense of a person.
(a) A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he or she may use a degree of force which he or she reasonably believes to be necessary for the purpose. A person may use deadly physical force, and is legally presumed to be justified in using deadly physical force in self-defense or the defense of another person pursuant to subdivision (4), if the person reasonably believes that another person is: (1) Using or about to use unlawful deadly physical force. (2) Using or about to use physical force against an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling. (3) Committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree, forcible rape, or forcible sodomy. (4) In the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered, a dwelling, residence, or occupied vehicle, or federally licensed nuclear power facility, or is in the process of sabotaging or attempting to sabotage a federally licensed nuclear power facility, or is attempting to remove, or has forcefully removed, a person against his or her will from any dwelling, residence, or occupied vehicle when the person has a legal right to be there, and provided that the person using the deadly physical force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring...." http://www.usacarry.com/alabama_stand_your_ground_castle_doctrine_law.html
|Alaska||§ 11.81.335||"...a person who is justified in using nondeadly force in self-defense under AS 11.81.330 may use deadly force in self-defense upon another person when and to the extent the person reasonably believes the use of deadly force is necessary for self-defense against death, serious physical injury, kidnapping, sexual assault, robbery in any degree... there is no duty to leave the area if the person is(1) on premises that the person owns or leases. - See more at: http://codes.lp.findlaw.com/akstatutes/11/11.81./04./11.81.335.#sthash.q41T1xXM.dpuf|
|Arizona||§ 13-411||"A. A person is justified in threatening or using both physical force and deadly physical force against another if and to the extent the person reasonably believes that physical force or deadly physical force is immediately necessary to prevent the other's commission of arson of an occupied structure under section 13‑1704, burglary in the second or first degree under section 13‑1507 or 13‑1508, kidnapping under section 13‑1304, manslaughter under section 13‑1103, second or first degree murder under section 13‑1104 or 13‑1105, sexual conduct with a minor under section 13‑1405, sexual assault under section 13‑1406, child molestation under section 13‑1410, armed robbery under section 13‑1904, or aggravated assault under section 13‑1204, subsection A, paragraphs 1 and 2. B. There is no duty to retreat before threatening or using physical force or deadly physical force justified by subsection A of this section. C. A person is presumed to be acting reasonably for the purposes of this section if he the person is acting to prevent the commission of any of the offenses listed in subsection A of this section. D. This section is not limited to the use or threatened use of physical or deadly physical force in a person's home, residence, place of business, land the person owns or leases, conveyance of any kind, or any other place in this state where a person has a right to be. - See more at: http://www.azleg.gov//FormatDocument.asp?inDoc=/legtext/47leg/2r/laws/0199.htm&Session_ID=83|
|California||§ Penal Code 198.5||"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."|
|Colorado||§ 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." 18-1-704.5 Use of deadly physical force against an intruder.|
|Florida||776.013||Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm.|
|Georgia||§ 16-3-23.1||No duty to retreat prior to use of force in self-defense. |
|Hawaii||§ 703-304||No duty to retreat from dwelling/workplace.|
|Idaho||18-4009||a justifiable homicide law in self-defense from violence—must prove intruder's intent thereof|
|Illinois||720 ILCS 5||Use of deadly force justified. Specific legislation prevents filing claim against defender of dwelling. Illinois has no requirement of retreat.|
|Indiana||IC 35-41-3-2||No duty to retreat from dwelling, curtilage, or occupied motor vehicle. In 2012, an amendment was made to the code to address the issue of force against a public servant. The amendment states: “A person is not justified in using deadly force against a public servant whom the person knows or reasonably should know is a public servant unless: (1) the person reasonably believes that the public servant is: (A) acting unlawfully; or (B) not engaged in the execution of the public servant's official duties; and (2) the force is reasonably necessary to prevent serious bodily injury to the person or a third person.”|
|Iowa||704.1||No duty to retreat from home or place of business in defense of self or a "third party".|
|Kentucky||KRS 503.055||No duty to retreat from dwelling, residence or occupied vehicle.|
|Louisiana||LA RS 14:20||(4)(a) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40), against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises or motor vehicle.|
|Maine||§ 104||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||278-8a||Section 8A. In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.|
|Michigan||768.21c||768.21c Use of deadly force by individual in own dwelling; "dwelling" defined.
(1) In cases in which section 2 of the self-defense act does not apply, the common law of this state applies except that the duty to retreat before using deadly force is not required if an individual is in his or her own dwelling or within the curtilage of that dwelling.
(2) As used in this section, "dwelling" means a structure or shelter that is used permanently or temporarily as a place of abode, including an appurtenant structure attached to that structure or shelter.
|Minnesota||609.065||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||563.031||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.|
|Mississippi||MS Code 97-3-15||(3) A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another or upon his dwelling, or against a vehicle which he was occupying, or against his business or place of employment or the immediate premises of such business or place of employment, if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered, a dwelling, occupied vehicle, business, place of employment or the immediate premises thereof or if that person had unlawfully removed or was attempting to unlawfully remove another against the other person's will from that dwelling, occupied vehicle, business, place of employment or the immediate premises thereof and the person who used defensive force knew or had reason to believe that the forcible entry or unlawful and forcible act was occurring or had occurred. This presumption shall not apply if the person against whom defensive force was used has a right to be in or is a lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or is the lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or if the person who uses defensive force is engaged in unlawful activity or if the person is a law enforcement officer engaged in the performance of his official duties;
(4) A person who is not the initial aggressor and is not engaged in unlawful activity shall have no duty to retreat before using deadly force under subsection (1) (e) or (f) of this section if the person is in a place where the person has a right to be, and no finder of fact shall be permitted to consider the person's failure to retreat as evidence that the person's use of force was unnecessary, excessive or unreasonable.
(5) (a) The presumptions contained in subsection (3) of this section shall apply in civil cases in which self-defense or defense of another is claimed as a defense.
|Montana|| §45-3-103||45-3-103. Use of force in defense of occupied structure.
(1) A person is justified in the use of force or threat to use force against another when and to the extent that the person reasonably believes that the use of force is necessary to prevent or terminate the other person's unlawful entry into or attack upon an occupied structure.
1. Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, property or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against any person or persons who manifestly intend and endeavor, in a violent, riotous, tumultuous or surreptitious manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein.
|New Hampshire||||Not required to retreat if he or she is within his or her dwelling, its curtilage, or anywhere he or she has a right to be, and was not the initial aggressor. An individual may respond to a threat of serious bodily injury or death by displaying a firearm or other method of self-defense. Deadly force is justified if the aggressor is about to use unlawful, deadly force, is likely to use any unlawful force against a person present while committing or attempting to commit a burglary, is committing or about to commit kidnapping or a forcible sex offense, or is likely to use any unlawful force in the commission of a felony against the individual within their dwelling or its curtilage.|
|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|
|New York||PL § 35.15(2)(a)(i)||Retreat required if actor knows that with complete personal safety, to oneself and others, he or she may avoid the necessity of using deadly force by retreating, except that the actor is under no duty to retreat if he or she is in his or her dwelling and not the initial aggressor.|
|North Carolina||§ 14‑51.3||Use of force in defense of person; relief from criminal or civil liability.(a) A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that the conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat in any place he or she has the lawful right to be if either of the following applies:(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another.(2) Under the circumstances permitted pursuant to G.S. 14‑51.2.(b) A person who uses force as permitted by this section is justified in using such force and is immune from civil or criminal liability for the use of such force, unless the person against whom force was used is a law enforcement officer or bail bondsman who was lawfully acting in the performance of his or her official duties and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties. (2011‑268, s. 1.)|
|North Dakota||12.1-05-07. ||When deadly force is used in lawful self-defense, or in lawful defense of others, if such force is necessary to protect the actor or anyone else against death, serious bodily injury, or the commission of a felony involving violence, An individual is not required to retreat within or from that individual's dwelling or place of work or from an occupied motor home or travel trailer, unless the individual was the original aggressor or is assailed by another individual who the individual knows also dwells or works there or who is lawfully in the motor home or travel trailer. Also, deadly force is permitted in defense of property when used by an individual in possession or control of a dwelling, place of work, or an occupied motor home or travel trailer, or by an individual who is licensed or privileged to be there, if the force is necessary to prevent commission of arson, burglary, robbery, or a felony involving violence upon or in the dwelling, place of work, or occupied motor home or travel trailer, and the use of force other than deadly force for these purposes would expose any individual to substantial danger of serious bodily injury.|
|Ohio||127 SB 184||Extends to vehicles of self and immediate family; effective September 9, 2008. Section 2901.09|
|Oregon||ORS ||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)."|
|Pennsylvania||18 Pa.C.S. Chapter 5 § 505||The most recent version of Pennsylvania’s Castle Doctrine legislation was signed into law in June 2011. The law extends the right to self-defense up to and including deadly force in a victim’s dwelling (now including any attached porch, deck or patio), occupied vehicle, or any other dwelling or vehicle that the victim legally occupies. A place of work is included in the "castle" provision under certain circumstances. Use of deadly force is justifiable if the "castle" area in the event that an assailant is "unlawfully and forcefully entering" or has entered the "castle" area. Deadly force is also justifiable, subject to certain provisions, if a person that legally enters the "castle" goes on to unlawfully attack a victim (when the victim is resonably in fear of his/her life) or if the attacker attempts to kidnap anyone who legally occupies the "castle". The victim must be in "legal possession" of a firearm or other weapon to be justified in the use of that weapon. Use of deadly force to protect an innocent third person is generally allowed in circumstances where the provisions for justifiable self-defense are met. Victims who justifiably use force to defend themselves under the provisions of the law are immune from civil liability for any injuries sustained by the attacker during the incident. The new legislation also contains a stand your ground provision when outside the "castle". Outside "castle areas" there is no duty to retreat if confronted with a weapon.|
|Rhode Island||§ 11-8-8|
|Texas||Penal Code Sec. 9.32||(a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under Section 9.31; and (2) when and to the degree the actor reasonably believes the deadly force is immediately necessary: (A) to protect the actor against the other's use or attempted use of unlawful deadly force; or (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. (b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor: (1) knew or had reason to believe that the person against whom the deadly force was used: (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment; (B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or (C) was committing or attempting to commit an offense described by Subsection (a)(2)(B); (2) did not provoke the person against whom the force was used; and (3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used. (c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section. (d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.
|Wisconsin||||Assembly Bill 69, signed December 7, 2011) The civil immunity became Sec. 895.62, Wis.Stats. and the criminal immunity became Sec. 939.48, Wis.Stats.|
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 - Limited Castle Doctrine for self-defense inside one's home established by court precedence in State v. Couch (1946). No civil immunity from potential lawsuits by the aggressor or surviving relatives. In 2011, two bills (House Bill 228 and Senate Bill 29) would have granted civil immunity to individuals who lawfully use lethal force in self-defense, both bills died in their respective chambers of the New Mexico Legislature.
- 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." See South Dakota Codified Laws 22-16-34 (2005).
Outside the USA
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.
By court ruling in 2011, a resident is permitted to use "reasonable and necessary" force in subduing an intruder in his or her private domicile or business. By definition, killing the intruder is only an option if non-lethal means cannot be carried out, and excessive force with obvious intent to kill is not necessarily defensible in court.
England and Wales
In English common law a defendant may seek to avoid criminal or civil liability by claiming that he acted in self-defence. This requires the jury to determine whether the defendant believed that force was necessary to defend him or herself, his or her 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. The common law duty to retreat was repealed by the Criminal Law Act 1967. This duty never existed when a person is somewhere he has a lawful right to be, but due to the repeal, now extends to public places, etc.
German law allows self-defense against an unlawful attack. Courts have interpreted this law as applicable to home invasion, including the use of lethal force against law enforcement in cases where the home owner was of the mistaken belief that the intrusion was an unlawful attack on his life.
Under the terms of the Defence and the Dwelling Act, property owners or residents are entitled to defend themselves with force, up to and including lethal force. Any individual who uses force against a trespasser is not guilty of an offence if he or she honestly believes they were there to commit a criminal act. A court or jury may not assess if such a belief was justified or not, only whether it was honestly held.
Israeli law allows property owners to defend themselves with force. This law was introduced in response to the trial of Shai Dromi, an Israeli farmer who shot Arab intruders on his farm late at night.
Italy passed a law in 2005 that would allow property owners to defend themselves with force. The law practical application is however highly controversial: Italian judiciary system is rather complex and using force is, more often than not, not recommended at all, since the property owner might get sued for disproportionate use of force.
- Duty to retreat, obligation to withdraw rather than attack, sometimes overridden by castle doctrine
- Justifiable homicide, the blameless killing of a person, such as in self-defense.
- Stand-your-ground law, which applies the castle doctrine to any place.
- Self-defence (Australia)
- Squatting in the United States
- "Assembly, No. 159, State of New Jersey, 213th Legislature, The "New Jersey Self Defense Law"" (PDF). May 6, 2008. Retrieved 2009-03-19.
The “Castle Doctrine” is a long-standing American legal concept arising from English Common Law that provides that one's abode is a special area in which one enjoys certain protections and immunities, that one is not obligated to retreat before defending oneself against attack, and that one may do so without fear of prosecution.
- Numa Denis Fustel de Coulanges, The Ancient City, 50. "To enter this house with any malevolent intention was a sacrilege. The domicile was inviolable."
- "An Englishman's home is his castle". Phrases.org.uk. Retrieved 2012-01-11.
- Philip Johnston (11 January 2009). "An Englishman's home is no longer his castle". London: Telegraph. Retrieved 2012-01-11.
- Dirk Johnson (June 1, 1990). "'Make My Day': More Than a Threat". New York Times. Retrieved 2008-06-27.
- Black's Law Dictionary: This term applies to the blameless killing of a person, such as in self-defense.
- Reinhart, Christopher. "CASTLE DOCTRINE AND SELF-DEFENSE". http://www.cga.ct.gov. State of Connecticut. Retrieved 8 September 2014.
- People v. Drennon, 860 P.2d 589 (Colo. Ct. App. 1993)
- People v. McNeese, 892 P.2d 304 (Colo. 1995)
- Rhinehart, C, Castle Doctrine and Self-Defense Connecticut General Assembly, Office of Legislative Research.
- People v. Zukowski, 260 P.3d 339 (Colo. Ct. App. 2011)
- Exodus 22:2-3
- Exodus 22:1-3
- Dickinson v. Maguire, 9 Cal. 46, The Chief Justice of California during the ruling was David S. Terry, who ironically, was later killed by order of Associate Supreme Court Justice Field under the guise of self-defense.
- Daluiso v. Boone , 71 Cal.2d 484 for English common law history
- Blackstone's Commentaries - Book the Fourth - Chapter the Sixteenth : Of Offenses Against the Habitations of Individuals
- Some doctrines would be hotly debated as law as applied in the young post-revolution United States. Example: "That the King can do no wrong, is a necessary and fundamental principle of the English constitution."
- "Tully" was once a common abbreviation for Marcus Tullius Cicero.
- What is more sacred, what more strongly guarded by every holy feeling, than a man's own home?
- Jay, Roger (August 14, 2006). "Spitting Lead in Leadville: Doc Holliday's Last Stand". HistoryNet. Wild West Magazine. Retrieved 13 April 2015.
- 1 Harper and James, op.cit. supra, at § 3.15, p. 258; Prosser, Law of Torts (3d ed. 1964) § 23, p. 125. See e.g., Mason v. Hawes (1884) 52 Conn. 12, 16 [52 Am.Rep. 552]; McIntyre v. Murphy (1908) 153 Mich. 342, 346-347 [116 N.W. 1003, 1004-1005, 15 Ann.Cas. 802]; Lobdell v. Keene (1901) 85 Minn. 90, 101 [88 N.W. 426, 430]; Strauel v. Lubeley (1915) 186 Mo.App. 638, 643-644 [172 S.W. 434, 435-436]; Mosseller v. Deaver (1890) 106 N.C. 494, 496-498 [11 S.E. 529, 530, 8 L.R.A. 537, 19 Am.St.Rep. 540]; Weatherly v. Manatt (1919) 72 Okla. 138, 139-140 [179 P. 470, 471]; Walgreen Co. v. Walton (1932) 16 Tenn.App. 213, 229 [64 S.W.2d 44, 53]; Ray v. Dyer (Tex.Civ.App. 1929) 20 S.W.2d 328, 330; Buchanan v. Crites (1944) 106 Utah 428, 436 [150 [71 Cal.2d 493] P.2d 100, 103]. See also Whitney v. Brown (1907) 75 Kan. 678, 681-683 [90 P. 277, 278, 11 L.R.A. N.S. 468, 12 Ann.Cas. 768]; Rest.2d Torts, § 185, com. a.) See Daluiso v. Boone, 71 Cal.2d 484
- "Shorter v. Shelton, 183 Va. 819, 826-827". Supreme Court of Virginia. April 23, 1945. Retrieved 2013-07-29.
It will be observed that the statute [of forcible entry] does not in express terms deprive the owner of the common-law right to take possession by reasonable force of premises to which he may be entitled.
- (February 10, 2014) - "BREAKING NEWS: Gov. Calvo Signs Castle Doctrine Into Law". Pacific Daily News. Retrieved February 3, 2015.
- Physical force justification
- "Michigan Legislature - Section 768.21c". legislature.mi.gov. Retrieved 2015-03-04.
- "State of Minnesota v. Glowacki, 630 N.W.2d 392, 402 (Minn. 2001)".
- "No. C8-98-86. - STATE v. CAROTHERS — MN Court of Appeals". Caselaw.findlaw.com. Retrieved 2012-01-11.
- "Senate Bills — Status Report of Legislation, SB 184". Retrieved 2008-08-09.
- Moring, Rosann (March 29, 2012). "150 at rally over death of Florida teen". The Daily Nonpariel. Retrieved 2012-04-17.
- Dustin v. Cowdry (1851) 23 Vt. 631, 639-640. Official Vermont Reports, Vol. 23, Pg. 631 (Supreme Court of Vermont reporter). 1851. Retrieved July 27, 2013.
[H]ad the present plaintiff elected to have proceeded under the statute, there can be no doubt, he might have subjected the defendants to punishment by way of fine, obtained restitution of the possession, and sustained an action of trespass, and recovered three fold damages for the expulsion and detention. And if such be the undeniable rights of the parties, under the statute, it is difficult to see, why, if the party waive all penalty under the statute, he may not sustain trespass qu. cl. against the defendants, the same as against any other wrong doers. Their [defendants'] right to possession gave them no more right to enter in that manner [by force], than if they had been mere strangers. ...
- "Criminal Law Consolidation (Self Defence) Amendment Act 2003" (PDF). Government of South Australia. Retrieved 27 July 2013.
- Accused to argue self defence | adelaidenow. News.com.au (2007-01-28). Retrieved on 2012-08-06.
- Hopper, Tristan. "Homeowners not required to flee intruders: court". The National Post. Retrieved 8 August 2014.
- "CPS Guidance on Self-defence". Retrieved 18 March 2012.
- "CPS Guidelines on Self-Defence". Retrieved 18 March 2012.
- "BGH, 02.11.2011 - 2 StR 375/11".
- Cullen, Paul (13 January 2012). "Law lets householders use reasonable force". The Irish Times.
- "Law allows 'reasonable force' defending home". RTÉ News. 13 January 2012.
- "Knesset Passes "Dromi Law"". Retrieved 18 March 2012.
- Stoil, Rebecca Anna (24 June 2008). "New law allows shooting at burglars". The Jerusalem Post. Retrieved 15 July 2009.
- Italy approves self-defence law , BBCX, January 24, 2006.
-  Diritto.it, commentary on the law