Make My Day - The Truth About Castle Doctrine

The history of what has come to be known as Castle Doctrine is a very old concept that dates back to the ancient Romans. Cicero, the Roman philosopher, wrote:

quid enim sanctius, quid omni religione munitius, quam domus unusquisque civium?

Translation: What more sacred, what more strongly guarded by every holy feeling, than a man's own home? Wiki

This is echoed by William Blackstone in his Commentaries on the Laws of England written in the late 1700's:

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? Wiki

Castle Doctrine is Common Law

While the basis of our American legal system is Common Law, not all states agree with the concept expressed by the Castle Doctrine. It follows as well that each state has a slightly different interpretation of Castle Doctrine, but the general concept as realized by our early ancestors is kept largely intact. The basic premise in a legal sense is that a state recognizing Castle Doctrine has no "Duty to Retreat." Duty to retreat loosely means that if an intruder makes his way into your home, you may not have a legal defense from protecting yourself with the use of deadly force unless you had attempted to retreat as far as possible from said intruder. In addition, if your attacker lives (or even if he does not) you are not held immune from any civil suit brought against you by him or the family.

Let's allow that sink in a minute...

It is therefore conceivable in these states that you could be prosecuted, sued, or both simply for defending yourself from an attack on your life or well-being that occurs within your own home or place of business. There being no immunity whatsoever, whatever decision made in these cases, were they to be brought against you and judging you at fault, would be binding and very costly. Did you ask for this to happen to you? Aren't you the victim? According to some states, you may be a liable participant, and you might have even committed a criminal act by defending yourself. We'll allow the courts decide your fate. Let's hope you have a good attorney. Let's hope you are not poor. Or perhaps we can just hope and pray for the best outcome.

Consider a quote from a 2006 New York Times article:

"Florida does not keep comprehensive records on the impact of its new law, but prosecutors and defense lawyers there agree that fewer people who claim self-defense are being charged or convicted."

This indicates that people were being tried and convicted in cases of self defense. It's astonishing that a person traumatized by a violent attack could find themselves on trial and wind up convicted.

From Wikipedia's notes on Castle Doctrine: In general, at least one or possibly more of a variety of conditions has to be met before a person can use Castle Doctrine as a legal defense:

  1. An intruder must be making (or have made) an attempt to unlawfully and/or forcibly enter an occupied home, business or car.
  2. 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
  3. 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
  4. The occupant(s) of the home must reasonably believe that the intruder intends to commit some other felony, such as arson or burglary
  5. 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
  6. The occupant(s) of the home may be required to attempt to exit the house or otherwise retreat (this is the "Duty to retreat" proviso previously discussed, but fortunately most self-defense statutes using Castle Doctrine expressly state that the homeowner has no such duty)

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

Many states using the stronger interpretations of Castle Doctrine have removed requirements 3 and 4 by stating that the forceful entry would automatically imply (3) threat of physical injury or death (a concept known as jeopardy) and (4) intent.

Strong Castle Laws Are Specific

Some states have strong Castle Laws which may specifically include other dwellings on your property, such as a garage or workshop, or may even include your occupied automobile. It is important that the language of the law has been specifically codified in support of these issues. Otherwise, a smart but deceitful attorney could "help" the judge or jury understand your act of defense in a way that is not in your favor. This means it is entirely possible for people in those states without some form of Castle Law could wind up being convicted for self defense in their own home if unlucky enough to encounter an anti-gun prosecutor and case details that are not purely evidential. Without the law to specify, self defense is not so cut and dried in these states, unfortunately. The interpretation of your duty to retreat, taken on a case-by-case basis, and supported only by precedents and case law, can be too subjective and may leave too much up to the jury member's views about self defense and weapons.

Stand Your Ground

Another component present in some of the states using a stronger interpretation of Castle Doctrine, is the notion of Stand Your Ground. This clause, also called no duty to retreat, specifies that use of deadly force in a place where a person has a legal right to be is justified without needing to attempt to get away first. Depending on the state, stand your ground can also be applied to public places in those states that have such a clause and allow some form of carrying the legal weapons used for self defense. This is notable since it represents a much stronger support for the rights of the individual. It is also important to recognize that the protections afforded individuals from a civil lawsuit are every bit as important and necessary as the defense from criminal prosecution, since either event can be traumatic and financially ruinous.

Organizations in support of gun control, the largest and most vocal of which is the Brady Campaign to Prevent Handgun Violence, like to refer to the Castle Laws as "Make my day" laws (conjuring up Clint Eastwood's famous line from the movies) or, worse, "shoot first laws". This sensationalistic phraseology implies that someone would be hoping for a criminal trespass or some sort of violent attack to happen, just so they get to be the bad boy and take some shots. This tactic and its overuse by certain, clearly biased media outlets to describe a simple legal concept seeks to paint responsible, law-abiding gun owners negatively.

Castle Doctrine is Common Sense

Castle Doctrine simply outlines something which all human beings, and even some animals know instinctively: That life and the sanctity of our domicile and the preservation of these things is of the highest order. Is the dead rape victim is morally superior to the gun-toting mom who refuses to be another casualty? If so then unfortunately we will continue to see crime rise. How will you stand up for your loved ones? Ownership of weapons is controversial, of course, and indeed I freely admit that some people probably shouldn't bother as they might just get themselves hurt. Owning a firearm and intending to have it for self defense means you have to commit to it and have thought things through...it's an awesome responsibility not to be taken lightly. When groups of people would try to decide whether others should have the legal protections for self defense, and then attempt to restrict access to the means, something has become flawed with their thinking. They have lost a part of their self that knows, or will come to know in the heat of the moment, that self defense and possession of the tools is a natural right. Or perhaps they sympathize with criminals more?

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Comments 16 comments

Scott.Life 6 years ago

It is disturbing to find an increasing trend towards the notion that even in your home you are not allowed to protect yourself. Many in the public do not recognize that the police are a reactionary force, they arrive after the fact and rarely prevent crimes. It falls to the individual to protect and serve their own interests in those first few minutes and often times those interests are your very life itself.

I have often expressed a strong sentiment of tolerance and understanding on this site and its forums, but I will say without apology that in my home, my last refuge of safety, if I am attacked I will fight to the death, and if necessary kill. If this puts me in legal peril, or moral uncertainty then so be it, I would rather be alive to debate that issue, then dead, and have my family do it for me.

As for my attackers rights to life, Americans need to understand the word right as it is not universal as far as the law is concerned, and the moment you seek to deprive another human being of their right to life you forfeit your own and there are consequences. I gave up my rights to happiness and freedom the moment I chose to disregard the law and I paid the price for that, while unpleasant and painful, It was my choice as it is the burglars choice to walk away at any time and stop, once he crosses that line he has put his own life in peril, not the homeowner who is defending himself.

Great article my friend and very needed.


Jeffrey Neal profile image

Jeffrey Neal 6 years ago from Tennessee Author

Exactly! Your rights end where mine begin.

Those who seek to limit are driven purely on emotion. We've become soft and forgiving of those who have evil in their heart. That further exacerbates the problem and emboldens the evil ones around us. A whole host of societal issues come into play and gov't is encouraged to take responsibility for them, but by my thinking it's a downward spiral. Somewhere along the way it's become more profitable for some to eschew family values and spit out multiple children into a life of poverty who in turn learn to take what they need from others because they have nothing. It's an ugly side of human nature, but it's also survival. As personal responsibility dies, so to does the spirit of our founders. It's unfortunate and sad.

Thanks for your vote of confidence, Scott.


lyricsingray 6 years ago

Fabulous Hub, I read every word and it's so well written, Thanks


Highvoltagewriter profile image

Highvoltagewriter 6 years ago from Savannah GA.

To me, self-preservation is still the highest law..I grew up being taught that we have a right to defend our selves, love ones and property. Thank you for a great hub!


Mighty Mom profile image

Mighty Mom 6 years ago from Where Left is Right, CA

Very, very well written and the video caps it off perfectly. I'm still sitting here puzzling over the whole "retreat" thing. Does that mean I need to go into the next room? Run out the back door (if the burglar/rapist is coming in the front) or up to the attic? That makes no sense.

I would hate to have to use deadly force against someone coming into my home. But you can bet they would not have the same hesitation against me!

Great hub. Keep em coming, Jeffrey! MM


Jeffrey Neal profile image

Jeffrey Neal 6 years ago from Tennessee Author

Thanks everyone for the kind words. The fact checking and digging up legal cases was eye-opening.

@MM, I agree that the duty to retreat thing makes little sense. It stems from colonial times, I believe, where there was a saying (I'm paraphrasing) "run to the wall", that was supposed to signify an attempt to avoid a confrontation by getting to the edges of the area. This may be sensible on the street, I feel it's asking too much inside one's home, and is too open for interpretation. Did you retreat far enough, did you lock the bedroom door?

I am not a lawyer, (but I did stay at a Holiday Inn Express ;-)) but CA law seems to have no duty to retreat from the Wiki site. Without researching each state individually, I have no way to know the most up to date info. It pays to know the laws of your state, though. After a confrontation is the worst time to try to figure it out, but hey, it all boils down to, if it's him or me...well, it's gonna be him.


jiberish profile image

jiberish 6 years ago from florida

This is a real eye opener. I think I'm a little speechless. Great Hub.


Jeffrey Neal profile image

Jeffrey Neal 6 years ago from Tennessee Author

Thank you, jiberish. It is difficult or impossible for me to understand the thinking on some of these. Fortunately states have begun to come around, and add the Castle Doctrine into their laws.

Thanks for stopping by.


ehern33 profile image

ehern33 6 years ago

Great informative hub. I have to agree with Scott.Life sentiments, your right to life stops when you cross that line. I definetely would not like to be in a situation where I have to put this doctrine to the test, but I rather my state have it than not. Thanks for the great info.


Jeffrey Neal profile image

Jeffrey Neal 6 years ago from Tennessee Author

Thanks for stopping by, ehern33! You are right, of course, and that was my point behind putting up this hub: to show the importance of having the law on your side when you find yourself in the unsavory position of having to defend yourself from violence. I hope it was helpful.


Dale Mazurek profile image

Dale Mazurek 6 years ago from Canada

I just keep learning and learning here at Hubpages.

Castle doctrine is a very scary law.

I loved every word of the hub because it seemed I was learning off every word.

I wonder how many people even know such a law exists because most people would just assume its okay to protect what is yours.

Very nicely done hub and now it is also a part of my blog

Cheers

Dale


Jeffrey Neal profile image

Jeffrey Neal 6 years ago from Tennessee Author

Dale, thanks a million! Your blog is filling out nicely with all of the high-quality hubs you've included. I am honored to be a part of it.


earnestshub profile image

earnestshub 6 years ago from Melbourne Australia

I thought the hub was well written and informative. We have a similar law in Australia that would seem to put victims at risk as well. We do have strong gun laws, and very few guns, but we have also had civil cases where the defender has been convicted when the injuries to the invader were severe.

Being a mostly gun free society, many crimes here are committed with guns, because the bad guys can still buy them on the black market.

I cannot think of a solution to this. It seems strange that so much protection is offered to someone intent on rape or murder. A common thief should not cop a .45 in the head as he come up the driveway either, so as it is with many laws, there is a lot to weigh up if real justice is to prevail.

A very nice read, and thought provoking... Thank you.


Jeffrey Neal profile image

Jeffrey Neal 6 years ago from Tennessee Author

I really appreciate your comments, earnest! I want to focus on what you said about the bad guys still being able to acquire the guns even though they are nearly banned in your country.

My main question is, do you know if the rate of violent crime went up, down or was unchanged after the hefty regulations were put into place? Much of what you have there now was put into place after a major shooting massacre, right? I'm too lazy and it's too late for me to look up right now, but I've read this was the event (more or less) that allowed a push for outright bans of certain types of firearms and severe restrictions on others to get traction with lawmakers in Australia.


Valmet 6 years ago

Britain banned handguns and strickened the regulations on rifles and shotguns. Result? Law-abiding citizens had to give away their weapons, criminals still did not. Since guns are highly illegal, youth consider them cool and every hoodrat wannabe wants to buy a black market pistol and the burglars know they have nothing to fear from the victims. Thus taking away legal guns has caused gun-related crime and burglaries to skyrocket.

Here in Finland the gun laws have been made more and more difficult and you can lose all your gun permits for ridiculous reasons like speeding, on account of anonymous call to the cops and even with someone in the neighbourhood watching your flat with binoculars and seeing you inside in the privacy of your own home cleaning your gun (which is completely legal but did not stop special forces from rushing in and confiscating the dudes entire historic collection and throwing him in jail for days and he just might get his guns back after a year or two of lawsuits if he's lucky). Even a ban of handguns has been proposed by some goody-two-shoes in the goverment. This has gone to the extent that even legal gunowners are buying black market guns to avoid all the hassle. At the same time we live in a country where defending yourself with any kind of weapon in any situation is illegal and the police have absolutely no chance to watch over even the cities or the vast countryside of our scrarcely-populated country, yet only things you are allowed to do even in a case of a break-in by armed villains is try to run, get beat up/raped/killed and call the police.

From a military point of view it is absurd to let the Russ... eh... possible enemy see from the documents who are armed and would be likely to offer furious resistance. Especially with easily conceived pistols and folding stock short rifles which both would be very useful for insurgents in case of a Russ.. ehh.. foreign invasion. With that said I still like the idea that there is control over who owns what and the interviews of first-time gun licencees, not allowing guns for criminals, mental patients, druggies, drunks and so on, and I most certainly don't want anyone outside police to be licenced for concealed carry in Finland, but a man's home is a sacred place so one should have to flee and anyone should be allowed to use deadly force against any burglars/attackers within the walls of his home and workplace.

As someone just put it above, it is the criminal's own choice and acting outside the law you should not be protected by it.

Just my €0.02 .


Paul 4 years ago

I'm a very liberal Democrat, and have no problem attesting to such. Yet the Castle Doctrine has always made perfect sense to me. A person should never be forced to retreat from their own home (or their car, for that matter), nor should they face punishment for defending their life or property. Once a person has shed their civilized humanity by violently attacking, they have waived their rights. That includes any right to life while on my property.

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