Castle doctrine

A Castle Doctrine (also known as a Castle Law or a Defense of Habitation Law) is an American legal doctrine claimed by advocates to arise from English Common Law that designates one's place of residence (or, in some states, any place legally occupied, such as one's car or place of work) as a place in which one enjoys protection from illegal trespassing and violent attack. It then goes on to give a person the legal right to use deadly force to defend that place (his/her "castle"), and/or any other innocent persons legally inside it, from violent attack or an intrusion which may lead to violent attack. In a legal context, therefore, use of deadly force which actually results in death may be defended as justifiable homicide under the Castle Doctrine.

Castle Doctrines are legislated by state, and not all states in the US have a Castle Doctrine law. The term "Make My Day Law" comes from the landmark 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 a line uttered by Clint Eastwood's character Harry Callahan in the 1983 film Sudden Impact, "Go ahead, make my day." It is sometimes considered derogatory as it implies those who assert the Castle Doctrine defense somehow wanted to have to shoot their assailant. More pejorative is the term "Shoot The Milkman Law", sometimes used by gun-control advocates to illustrate the potential abuses of the law in cases involving mistake of fact as to the identity or intentions of the person shot.

Conditions of use
Each state differs with respect to the specific instances in which the Castle Doctrine can be invoked, and what degree of retreat or non-deadly resistance (if any) is required before deadly force can be used.

In general, one (sometimes more) of a variety of conditions must be met before a person can legally use the Castle Doctrine:


 * An intruder must be making (or have made) an attempt to unlawfully and/or forcibly enter an occupied home, business or car.
 * The intruder must be acting illegally—e.g. the Castle Doctrine does not give the right to attack officers of the law acting in the course of their legal duties
 * The occupant(s) of the home must reasonably believe that the intruder intends to inflict serious bodily harm or death upon an occupant of the home
 * The occupant(s) of the home must reasonably believe that the intruder intends to commit some other 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
 * The occupant(s) of the home may be required to attempt to exit the house or otherwise retreat (this is called the "Duty to retreat" and most self-defense statutes referred to as examples of "Castle Doctrine" expressly state that the homeowner has no such duty)

In all cases, the occupant(s) of the home must be there legally, must not be fugitives from the law, must not be using the Castle Doctrine to aid or abet another person in being a fugitive from the law, and must not use deadly force upon an officer of the law or an officer of the peace while they are performing or attempting to perform their legal duties.

Note: the term "home" is used because most states only apply their Castle Doctrine to a place of residence; however, some states extend the protection to other legally-occupied places such as automobiles and places of business.

Immunity from civil lawsuit
In addition to providing a valid defense in criminal law, many versions of 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/injury resulting from the use of lethal force. Without this clause, it is possible for an assailant to sue for medical bills, property damage, disability, and pain and suffering as a result of the injuries inflicted by the defender, or for their next-of-kin to sue for wrongful death in the case of a fatality. Even if successfully refuted, the defendant (the homeowner/defender) must often pay thousands of dollars in legal costs as a result of such lawsuits, and thus without immunity, such civil action could be used for revenge against a defender acting lawfully.

The only exceptions to this civil immunity are generally situations of excessive force, where the defender used deadly force on a subdued, cooperative, or disabled assailant. A situation meeting this exception generally invalidates the criminal "castle defense" as well. In addition, someone who uses deadly force in self-defense is still liable for any damages or injuries to third parties who were not acting criminally at the time of the defensive action.

Duty-to-retreat
"Castle laws" remove the duty to retreat from an illegal intruder when one is lawfully in one's home. Therefore, any state that imposes a duty to retreat while in the home does not have a "Castle law": the duty-to-retreat clause expressly imposes an obligation upon the home's occupants to retreat as far as possible and verbally announce their intent to use deadly force, before they can be legally justified in doing so to defend themselves.

For states that do not require the announcement to be "verbal", other indicators may be used. These are typically not defined by statute, and would be left to the court's interpretation, but may include things such as laser sights or the cocking of a firearm. Care should be exercised in studying applicable individual state laws. In the majority of jurisdictions warning shots are illegal, and even brandishing the weapon in a threatening manner can result in criminal charges.

Stand-your-ground
Other states expressly relieve the home's occupants of any duty to retreat or announce their intent to use deadly force before they can be legally justified in doing so to defend themselves. Clauses that state this fact are called "Stand Your Ground", "Line In The Sand" or "No Duty To Retreat" clauses, and state exactly that the defender has no duty or other requirement to abandon a place in which they have a right to be, or to give up ground to an assailant. States often differentiate between altercations occurring inside a home or business and altercations in public places; there may be a duty to retreat from an assailant in public when there is no duty to retreat from one's own property, or there may be no duty to retreat from anywhere the defender may legally be. Other restrictions may still exist; when in public, a person must be carrying the firearm in a legal manner, whether concealed or openly.

"Stand your ground" governs U.S. federal case law in which self-defense is asserted against a charge of criminal homicide. The Supreme Court ruled in Beard v. U.S. (1895) that a man who was "where he had the right to be" when he came under attack and "...did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm...was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground."

In a Minnesota case, State v. Gardner (1905), where a man was acquitted for killing another man who attempted to kill him with a rifle, Judge Jaggard stated: "The doctrine of "retreat to the wall" had its origin [in Medieval England] before the general introduction of guns. Justice demands that its application have due regard to the general use of and to the type of firearms. It would be good sense for the law to require, in many cases, an attempt to escape from a hand to hand encounter with fists, clubs and even knives as a justification for killing in self-defense; while it would be rank folly to require [an attempt to escape] when experienced persons, armed with repeating rifles, face each other in an open space, removed from shelter, with intent to kill or cause great bodily harm"

Justice Oliver Wendell Holmes, Jr. declared in Brown v. United States (256 U.S. 335, 343 (16 May 1921)) when upholding the no duty to retreat maxim that "detached reflection cannot be demanded in the presence of an uplifted knife".

Most gun control groups, such as the Violence Policy Center and the Brady Campaign denounce "Stand-Your-Ground" clauses as "Shoot First" laws (as in "shoot first, ask questions later"), asserting that the presumptions and other protections afforded to gun owners allow them virtual carte blanche to shoot anyone who is perceived to be trespassing. They also claim it will lead to cases of mistaken identity, so-called "shooting the milkman" scenarios. Gun rights groups, such as the National Rifle Association claim that such scenarios are unlikely and are not protected under most Castle laws; the shooter is only justified if the assailant broke into the home or attempted to commit some other property crime such as arson, and simple trespass is neither.

Adoption by States
As of the 28th of May, 2010, 31 States have some form of Castle Doctrine and/or Stand Your Ground law. Alabama, Alaska, Arizona, California, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Missouri, Montana, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wyoming have adopted Castle Doctrine statutes, and other states (Montana, Nebraska, New Hampshire, Pennsylvania and Washington) are currently considering "Stand Your Ground" laws of their own.

Some of the states that have passed or are considering "stand your ground" legislation already are considered "stand your ground" in their case law. Indiana and Georgia, among other states, already had "stand your ground" case law and passed "stand your ground" statutes due to possible concerns of the case law being replaced by "duty to retreat" in future court rulings. Other states, including Washington, have "stand your ground" in their case law but have not adopted statutes; West Virginia had a long tradition of "stand your ground" in its case law before codifying it as a statute in 2008. These states did not have civil immunity for self defense in their previous self defense statutes.

Utah has historically adhered to the principles of "stand your ground" without the need to refer to this new legislation. The use of deadly force to defend persons on one's own property is specifically permitted by Utah state law. The law specifically states that a person does not have a duty to retreat from a place where a person has lawfully entered or remained.

In Oklahoma (according to the Oklahoma State Courts Network), the amendment changes a number of other aspects of the Oklahoma Self Defense Act, the statutes concerning justifiable homicide. As 21 O.S. 2001, Section 1289.25 now lists circumstances in which it is presumed that a person who uses deadly force "reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony." In addition, it helps to protect law-abiding citizens from arrest when using deadly force. Law enforcement agencies must now have probable cause to believe that the use of deadly force was unlawful before an arrest can be made.

Delaware
Justification—Use of force in self-protection.

(a) The use of force upon or toward another person is justifiable when the defendant believes that such force is immediately necessary for the purpose of protecting the defendant against the use of unlawful force by the other person on the present occasion.

(b) Except as otherwise provided in subsections (d) and (e) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as the person believes them to be when the force is used, without retreating, surrendering possession, doing any other act which the person has no legal duty to do or abstaining from any lawful action.

(c) The use of deadly force is justifiable under this section if the defendant believes that such force is necessary to protect the defendant against death, serious physical injury, kidnapping or sexual intercourse compelled by force or threat.

(d) The use of force is not justifiable under this section to resist an arrest which the defendant knows or should know is being made by a peace officer, whether or not the arrest is lawful.

(e) The use of deadly force is not justifiable under this section if:

(1) The defendant, with the purpose of causing death or serious physical injury, provoked the use of force against the defendant in the same encounter; or

(2) The defendant knows that the necessity of using deadly force can be avoided with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that the defendant abstain from performing an act which the defendant is not legally obligated to perform except that:

a. The defendant is not obliged to retreat in or from the defendant's dwelling; and

b. The defendant is not obliged to retreat in or from the defendant's place of work, unless the defendant was the initial aggressor; and

c. A public officer justified in using force in the performance of the officer's duties, or a person justified in using force in assisting an officer or a person justified in using force in making an arrest or preventing an escape, need not desist from efforts to perform the duty or make the arrest or prevent the escape because of resistance or threatened resistance by or on behalf of the person against whom the action is directed.

Illinois
(720 ILCS 5/) Criminal Code of 1961

Section 7. Justifiable use of force. Use of deadly force justified if the person reasonably believes they are in danger of death or great physical harm. Use of deadly force justified if the unlawful entry is violent, or the person believes the attacker will commit a felony upon gaining entry.

Section 7-2(b). Prevents the aggressor from filing any claim against the defender unless the use of force involved "willful or wanton misconduct".

Illinois has no requirement of retreat. (People v. Bush, 111 N.E.2d 326 Ill. 1953).

Montana
HB 228, the “Castle Doctrine” bill, has been signed into law by Gov. Schweitzer.

Section 1. No duty to summon help or flee. Except as provided in 45-3-105, a person who is lawfully in a place or location and who is threatened with bodily injury or loss of life has no duty to retreat from a threat or summon law enforcement assistance prior to using force. The provisions of this section apply to a person offering evidence of justifiable use of force under 45-3-102, 45-3-103, or 45-3-104.

Section 2. Openly carrying weapon—display—exemption. (1) Any person who is not otherwise prohibited from doing so by federal or state law may openly carry a weapon and may communicate to another person the fact that the person has a weapon. (2) If a person reasonably believes that the person or another person is threatened with bodily harm, the person may warn or threaten the use of force, including deadly force, against the aggressor, including drawing or presenting a weapon. (3) This section does not limit the authority of the board of regents or other postsecondary institutions to regulate the carrying of weapons, as defined in 45-8-361(5)(b), on their campuses.

Section 3. Investigation of alleged offense involving claim of justifiable use of force. When an investigation is conducted by a peace officer of an incident that appears to have or is alleged to have involved justifiable use of force, the investigation must be conducted so as to disclose all evidence, including testimony concerning the alleged offense and that might support the apparent or alleged justifiable use of force

North Carolina
Use of deadly physical force against an intruder.

(a) A lawful occupant within a home or other place of residence is justified in using any degree of force that the occupant reasonably believes is necessary, including deadly force, against an intruder to prevent a forcible entry into the home or residence or to terminate the intruder's unlawful entry (i) if the occupant reasonably apprehends that the intruder may kill or inflict serious bodily harm to the occupant or others in the home or residence, or (ii) if the occupant reasonably believes that the intruder intends to commit a felony in the home or residence.

(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder in the circumstances described in this section.

New Mexico
Section 30-2-7A NMSA 1978 provides that a homicide is justifiable when committed in the necessary defense of property. Although this statute has been a part of New Mexico law since 1907, the New Mexico appellate courts have never given the statute a broad interpretation. The New Mexico courts have consistently held, not always referring to the statute, that one cannot defend his property, other than his habitation, from a mere trespass to the extent of killing the aggressor. State v. McCracken, 22 N.M. 588, 166 P. 1174 (1917); State v. Martinez, 34 N.M. 112, 278 P. 210 (1929); State v. Couch, 52 N.M. 127, 193 P.2d 405 (1946).

Washington
The statute in Washington state appears to be very simply and broadly stated.

The law allows use of deadly force in the lawful defense of oneself, a family member, or any other person, when there is reasonable ground to prevent action(s) of the person slain to commit a felony or to do injury or harm, and there is imminent danger of such design being accomplished; or in the actual resistance of an attempt to commit a felony upon the slayer, on those in their presence, or upon or in a dwelling, or other place of abode, in which they are.

Washington state doesn’t have a specific Castle Doctrine law, but has no duty to retreat as precedent was set when the State Supreme Court found "that there is no duty to retreat when a person is assaulted in a place where he or she has a right to be."

West Virginia
§55-7-22 of the Code of West Virginia

(a) A lawful occupant within a home or other place of residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the home or residence or to terminate the intruder's or attacker's unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.

(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder or attacker in the circumstances described in subsection (a) of this section.

(c) A person not engaged in unlawful activity who is attacked in any place he or she has a legal right to be outside of his or her home or residence may use reasonable and proportionate force against an intruder or attacker: Provided, That such person may use deadly force against an intruder or attacker in a place that is not his or her residence without a duty to retreat if the person reasonably believes that he or she or another is in imminent danger of death or serious bodily harm from which he or she or another can only be saved by the use of deadly force against the intruder or attacker.

(d) The justified use of reasonable and proportionate force under this section shall constitute a full and complete defense to any civil action brought by an intruder or attacker against a person using such force.

(e) The full and complete civil defense created by the provisions of this section is not available to a person who: (1) Is attempting to commit, committing or escaping from the commission of a felony; (2) Initially provokes the use of force against himself, herself or another with the intent to use such force as an excuse to inflict bodily harm upon the assailant; or (3) Otherwise initially provokes the use of force against himself, herself or another, unless he or she withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

(f) The provisions of this section do not apply to the creation of a hazardous or dangerous condition on or in any real or personal property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct.

Wisconsin
A Wisconsin "Castle Doctrine" bill, 2007 Assembly Bill 35, passed the Assembly on Friday, May 11, 2007; it died in the Senate and, therefore, did not become law. The bill would have created immunity for an act of self-defense for any person who uses deadly force while in his or her residence and is not engaged in illegal activity.

Origins
As described in the Torah, the ancient understanding of the prohibition of murder made 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 defender is not guilty of bloodshed; but if it happens after sunrise, he is guilty of bloodshed.”

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 says:

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 Java, the statute name and/or number is listed.

This list was last verified to be current on June 21, 2008.

States with a Stand-your-ground Law
No duty to retreat, regardless of where attack takes place.


 * Alabama
 * Arizona
 * Florida
 * Georgia
 * Indiana
 * Kentucky
 * Louisiana
 * Montana
 * Nevada
 * Oklahoma Title 21§1289.25
 * South Carolina (Persons not "required to needlessly retreat.")
 * Tennessee 2007 Tenn. Pub. Acts Ch. 210 (Amends Tenn. Code. Ann. § 39-11-611)
 * Texas
 * 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...)

States with a Castle Law
No duty to retreat if in the home.
 * Alaska
 * California (California Penal Code § 198.5 sets forth that unlawful, forcible entry into one's residence by someone not a member of the household creates the presumption that the resident held a reasonable fear of imminent peril of death or great bodily injury should he or she use deadly force against the intruder. 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 or her ground and defend himself or herself 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 a "trap-gun" was used, the doctrine did not apply.
 * 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.")
 * Illinois (Use of deadly force justified. Specific legislation prevents filing claim against defender of dwelling. Illinois has no requirement of retreat.)
 * Kansas (§ 21-3212. Use of force in defense of dwelling; no duty to retreat.)
 * 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 commonlaw castle-doctrine into Maryland self-defense law. Invitees or guests may have duty to retreat based on mixed case law.)
 * Massachusetts
 * Michigan (more recent law—Act 309 of 2006—does not relieve duty to retreat "unless [deadly force is] necessary to prevent imminent death;" this represents no change from common law, which does not require retreat unless it can be safely done)
 * 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.
 * Mississippi (to use reference, select "Code of 1972" and search "retreat")
 * 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.)
 * Nevada
 * New Jersey ("Statutes" link in sidebar, see New Jersey Statutes 2C:3-4, retreat required outside home if actor knows he can avoid necessity of deadly force in complete safety, etc.)
 * North Carolina
 * North Dakota
 * 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
 * Utah
 * West Virginia (Senate bill 145 signed March 12, 2008. WV code §55-7-22)
 * 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.
 * Idaho (Homicide is justified if defending a home from "tumultuous" entry; duty to retreat not specifically removed)
 * New York (May not use deadly physical force if he or she  knows  that  with complete  personal safety, to oneself and others he or she may avoid the necessity of so doing 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.)
 * Pennsylvania 18 Pa. Cons. Stat. § 505 on the defense of self says there is no obligation to retreat from the home or workplace unless the actor was the initial aggressor or, in the latter case, set upon by a co-worker; however, "surrendering possession of a thing to a person asserting a claim of right thereto" and "complying with a demand that [one] abstain from any action which [one] has no duty to take" are listed in addition to retreating as avenues which, if open to the actor but not taken, invalidate justification for the use of deadly force. Deadly force itself is not justifiable unless "the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat."  18 Pa. Cons. Stat. § 507 allows the use of deadly force if the actor believes there has been an unlawful entry into his or her dwelling and believes that nothing less than deadly force will end the incursion; if the person on the receiving end of the deadly force is "attempting to dispossess [the actor] of his dwelling otherwise than under a claim of right to its possession;" or if deadly force is the only thing that will prevent a felony from being committed in the dwelling.  In any of those cases, the property owner must first ask the interloper to desist — unless the owner believes that doing so would be "useless," "dangerous," or would result in the property being defended coming to substantial harm before the request to desist could be effectively communicated.
 * 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).
 * Iowa
 * Nebraska
 * New Hampshire (A proposed law was vetoed in 2007. )
 * New Mexico
 * Virginia
 * Vermont
 * District of Columbia

In other countries
Israel passed a law, commonly known as the 'Dromi Law', defining opposition to intruders as legitimate self-defence in response to the trial of Shai Dromi, a farmer who shot intruders on his farm late at night. In addition, Italy passed a "Castle Doctrine" style law in 2005.

Currently, no Canadian Province has implemented either Castle Doctrine or Stand Your Ground. Under the criminal code of Canada, a very limited version of Castle Doctrine exists that requires the victim to retreat if retreating is possible.

Related sayings

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