Castle Doctrine
Encyclopedia
A Castle Doctrine is an American
legal doctrine arising 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 "castle
"), and 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 though 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. Colorado isn't well known for heightened crime but it is a well populated state. 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 may be used to imply that those who assert the Castle Doctrine defense want to have to shoot their assailant. Another pejorative nickname is the term "Shoot The Milkman Law", sometimes used by anti-gun activists to illustrate the potential abuses of the law in cases involving mistake of fact as to the identity or intentions of the person shot.
In general, (one) or a variety of conditions must be met before a person can legally use the Castle Doctrine:
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.
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.
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.
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:
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.
Alabama, Alaska, Arizona, California, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Missouri, Montana, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, 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, 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 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.
5-2-620. Use of force to defend persons and property within home.
(a) The right of an individual to defend himself or herself and the life of a person or property in the individual's home against harm, injury, or loss by a person unlawfully entering or attempting to enter or intrude into the home is reaffirmed as a fundamental right to be preserved and promoted as a public policy in this state.
(b) There is a legal presumption that any force or means used to accomplish a purpose described in subsection (a) of this section was exercised in a lawful and necessary manner, unless the presumption is overcome by clear and convincing evidence to the contrary.
(c) The public policy stated in subsection (a) of this section shall be strictly complied with by the court and an appropriate instruction of this public policy shall be given to a jury sitting in trial of criminal charges brought in connection with this public policy.
History. Acts 1981, No. 880, § 1; A.S.A. 1947, § 41-507.1.
5-2-607. Use of deadly physical force in defense of a person.
(a) A person is justified in using deadly physical force upon another person if the person reasonably believes that the other person is:
(1) Committing or about to commit a felony involving force or violence;
(2) Using or about to use unlawful deadly physical force; or
(3)
(A) Imminently endangering the person's life or imminently about to victimize the person as described in § 9-15-103 from the continuation of a pattern of domestic abuse.
(B) As used in this section, “domestic abuse” means the same as defined in § 9-15-103.
(b) A person may not use deadly physical force in self-defense if he or she knows that he or she can avoid the necessity of using deadly physical force with complete safety:
(1)
(A) By retreating.
(B) However, a person is not required to retreat if the person is:
(i) In the person's dwelling or on the curtilage surrounding the person's dwelling and was not the original aggressor; or
(ii) A law enforcement officer or a person assisting at the direction of a law enforcement officer; or
(2) By surrendering possession of property to a person claiming a lawful right to possession of the property.
(c) As used in this section, “curtilage” means the land adjoining a dwelling that is convenient for family purposes and habitually used for family purposes, but not necessarily enclosed, and includes an outbuilding that is directly and intimately connected with the dwelling and in close proximity to the dwelling.
History. Acts 1975, No. 280, § 507; A.S.A. 1947, § 41-507; Acts 1997, No. 1257, § 1; 2007, No. 111, § 1.
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.
(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).
Ind. Code Section 35-41-3-2
(b) A person:
(1) is justified in using reasonable force, including deadly force, against another person; and
(2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling...
Montana Code Annotated 2009
Title 45. CRIMES
CHAPTER 3. JUSTIFIABLE USE OF FORCE
includes the following.
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.
(2) A person justified in the use of force pursuant to subsection (1) is justified in the use of force likely to cause death or serious bodily harm only if:
(a) the entry is made or attempted and the person reasonably believes that the force is necessary to prevent an assault upon the person or another then in the occupied structure; or
(b) the person reasonably believes that the force is necessary to prevent the commission of a forcible felony in the occupied structure.
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.
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).
New York's justification statute dates from 1968 and allows deadly force to be used in a number of circumstances. Under Penal Law § 35.15, in general, deadly force may be used as necessary to defend against unlawful deadly force used by another. Retreat is required when one knows it can be done with complete personal safety to innocent parties. Even then, no retreat is required when a person is in his dwelling and not the initial aggressor, or is defending against kidnapping, forcible rape, forcible criminal sexual act or robbery, or is preventing arson or is terminating a burglary or attempted burglary of an occupied building as allowed by Penal Law § 35.20.
§ 35.15 Justification; use of physical force in defense of a person
1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:
(a) The latter's conduct was provoked by the actor with intent to cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or
(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.
2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor 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:
(i) in his or her dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter's direction, acting pursuant to section 35.30; or
(b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or
(c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.
§ 35.20 Justification; use of physical force in defense of premises and in defense of a person in the course of burglary
1. Any person may use physical force upon another person when he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of a crime involving damage to premises. Such person may use any degree of physical force, other than deadly physical force, which he or she reasonably believes to be necessary for such purpose, and may use deadly physical force if he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of arson.
2. A person in possession or control of any premises, or a person licensed or privileged to be thereon or therein, may use physical force upon another person when he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of a criminal trespass upon such premises. Such person may use any degree of physical force, other than deadly physical force, which he or she reasonably believes to be necessary for such purpose, and may use deadly physical force in order to prevent or terminate the commission or attempted commission of arson, as prescribed in subdivision one, or in the course of a burglary or attempted burglary, as prescribed in subdivision three.
3. A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.
Ohio's Senate Bill 184 (SB184) took effect September 9, 2008. This bill updated the Ohio Revised Code with sections pertaining to Castle Doctrine and other areas of the ORC that were known to be unclear.
ORC 2307.601: No duty to retreat in residence or vehicle.
(A) As used in this section:
(1) “Residence” and “vehicle” have the same meanings as in section 2901.05 of the Revised Code.
(2) “Tort action” has the same meaning as in section 2307.60 of the Revised Code.
(B) For purposes of determining the potential liability of a person in a tort action related to the person’s use of force alleged to be in self-defense, defense of another, or defense of the person’s residence, if the person lawfully is in that person’s residence, the person has no duty to retreat before using force in self-defense, defense of another, or defense of that person’s residence, and, if the person lawfully is an occupant of that person’s vehicle or lawfully is an occupant in a vehicle owned by an immediate family member of the person, the person has no duty to retreat before using force in self-defense or defense of another.
Effective Date: 2008 SB184 09-09-2008
ORC 2901.05: Burden of proof - reasonable doubt - self-defense.
(B)(1) Subject to division (B)(2) of this section, a person is presumed to have acted in self defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.
Effective Date: 11-01-1978; 2008 SB184 09-09-2008
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."
§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 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 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 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 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.
A Wisconsin "Castle Doctrine" bill, 2011 Assembly Bill 69, passed the Senate on Thursday, Nov 3, 2011 and the Assembly on Friday, Nov 4, 2011; it is expected that Governor Scott Walker will sign the bill. The bill creates an automatic presumption of immunity for an act of self-defense for any person who uses deadly force while in his residence, motor vehicle, or place of business and is not engaged in illegal activity. The bill also limits civil liability when someone uses deadly force as outlined in the bill.
, 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 states that the laws "leave him (the inhabitant) the natural right of killing the aggressor (the burglar)" and goes on to generalize in the following words:
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.
This list was last verified to be current on June 21, 2008.
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.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
legal doctrine arising 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
Deadly force
Deadly force, as defined by the United States Armed Forces, is the force which a person uses, causing—or that a person knows, or should know, would create a substantial risk of causing—death or serious bodily harm...
to defend that place (his "castle
Castle
A castle is a type of fortified structure built in Europe and the Middle East during the Middle Ages by European nobility. Scholars debate the scope of the word castle, but usually consider it to be the private fortified residence of a lord or noble...
"), and 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
Justifiable homicide
The United States' concept of justifiable homicide in criminal law stands on the dividing line between an excuse, justification and an exculpation. It is different from other forms of homicide in that due to certain circumstances the homicide is justified as preventing greater harm to innocents...
under the Castle Doctrine.
Castle Doctrines are legislated by state though 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. Colorado isn't well known for heightened crime but it is a well populated state. The law's nickname is a reference to a line uttered by Clint Eastwood's character Harry Callahan in the 1983 film Sudden Impact
Sudden Impact
Sudden Impact is a 1983 American crime thriller and the fourth film in the Dirty Harry series, directed by and starring Clint Eastwood...
, "Go ahead, make my day
Go ahead, make my day
"Go ahead, make my day" is a catchphrase written by Joseph C. Stinson and spoken by the character Harry Callahan from the 1983 film Sudden Impact. In 2005, it was chosen as #6 on the American Film Institute list, AFI's 100 Years... 100 Movie Quotes. The "Make My Day Law" passed in most U.S...
." It is sometimes considered derogatory as it may be used to imply that those who assert the Castle Doctrine defense want to have to shoot their assailant. Another pejorative nickname is the term "Shoot The Milkman Law", sometimes used by anti-gun activists 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) or 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 residence, business or vehicle.
- 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 retreatDuty to retreatIn the criminal law, the duty to retreat is a specific component which sometimes appears in the defense of self-defense, and which must be addressed if the defendant is to prove that his or her conduct was justified. In those jurisdictions where the requirement exists, the burden of proof is on the...
" 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.
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 concealedConcealed carry
Concealed carry, or CCW , refers to the practice of carrying a handgun or other weapon in public in a concealed manner, either on one's person or in proximity.-In Canada:...
or openly
Open Carry
In the United States, open carry is shorthand terminology for "openly carrying a firearm in public", as distinguished from concealed carry, where firearms cannot be seen by the casual observer....
.
"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:
Justice Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
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
Violence Policy Center
The Violence Policy Center is a national 501 organization working to prohibit gun ownership in the United States, especially in relation to gun politics...
and the Brady Campaign
Brady Campaign
The Brady Campaign to Prevent Gun Violence and the Brady Center to Prevent Gun Violence are affiliated non-profit organizations in the United States. They are named after James Brady who was permanently disabled as a result of an assassination attempt on U.S. President Ronald Reagan in 1981...
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
National Rifle Association
The National Rifle Association of America is an American non-profit 501 civil rights organization which advocates for the protection of the Second Amendment of the United States Bill of Rights and the promotion of firearm ownership rights as well as marksmanship, firearm safety, and the protection...
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
Arson
Arson is the crime of intentionally or maliciously setting fire to structures or wildland areas. It may be distinguished from other causes such as spontaneous combustion and natural wildfires...
, and simple trespass
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
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 Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, 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, 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 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.
Arkansas
5-2-620. Use of force to defend persons and property within home.
(a) The right of an individual to defend himself or herself and the life of a person or property in the individual's home against harm, injury, or loss by a person unlawfully entering or attempting to enter or intrude into the home is reaffirmed as a fundamental right to be preserved and promoted as a public policy in this state.
(b) There is a legal presumption that any force or means used to accomplish a purpose described in subsection (a) of this section was exercised in a lawful and necessary manner, unless the presumption is overcome by clear and convincing evidence to the contrary.
(c) The public policy stated in subsection (a) of this section shall be strictly complied with by the court and an appropriate instruction of this public policy shall be given to a jury sitting in trial of criminal charges brought in connection with this public policy.
History. Acts 1981, No. 880, § 1; A.S.A. 1947, § 41-507.1.
5-2-607. Use of deadly physical force in defense of a person.
(a) A person is justified in using deadly physical force upon another person if the person reasonably believes that the other person is:
(1) Committing or about to commit a felony involving force or violence;
(2) Using or about to use unlawful deadly physical force; or
(3)
(A) Imminently endangering the person's life or imminently about to victimize the person as described in § 9-15-103 from the continuation of a pattern of domestic abuse.
(B) As used in this section, “domestic abuse” means the same as defined in § 9-15-103.
(b) A person may not use deadly physical force in self-defense if he or she knows that he or she can avoid the necessity of using deadly physical force with complete safety:
(1)
(A) By retreating.
(B) However, a person is not required to retreat if the person is:
(i) In the person's dwelling or on the curtilage surrounding the person's dwelling and was not the original aggressor; or
(ii) A law enforcement officer or a person assisting at the direction of a law enforcement officer; or
(2) By surrendering possession of property to a person claiming a lawful right to possession of the property.
(c) As used in this section, “curtilage” means the land adjoining a dwelling that is convenient for family purposes and habitually used for family purposes, but not necessarily enclosed, and includes an outbuilding that is directly and intimately connected with the dwelling and in close proximity to the dwelling.
History. Acts 1975, No. 280, § 507; A.S.A. 1947, § 41-507; Acts 1997, No. 1257, § 1; 2007, No. 111, § 1.
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).
Indiana
Ind. Code Section 35-41-3-2
(b) A person:
(1) is justified in using reasonable force, including deadly force, against another person; and
(2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling...
Montana
Montana Code Annotated 2009
Title 45. CRIMES
CHAPTER 3. JUSTIFIABLE USE OF FORCE
includes the following.
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.
(2) A person justified in the use of force pursuant to subsection (1) is justified in the use of force likely to cause death or serious bodily harm only if:
(a) the entry is made or attempted and the person reasonably believes that the force is necessary to prevent an assault upon the person or another then in the occupied structure; or
(b) the person reasonably believes that the force is necessary to prevent the commission of a forcible felony in the occupied structure.
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).
New York
New York's justification statute dates from 1968 and allows deadly force to be used in a number of circumstances. Under Penal Law § 35.15, in general, deadly force may be used as necessary to defend against unlawful deadly force used by another. Retreat is required when one knows it can be done with complete personal safety to innocent parties. Even then, no retreat is required when a person is in his dwelling and not the initial aggressor, or is defending against kidnapping, forcible rape, forcible criminal sexual act or robbery, or is preventing arson or is terminating a burglary or attempted burglary of an occupied building as allowed by Penal Law § 35.20.
§ 35.15 Justification; use of physical force in defense of a person
1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:
(a) The latter's conduct was provoked by the actor with intent to cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or
(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.
2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor 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:
(i) in his or her dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter's direction, acting pursuant to section 35.30; or
(b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or
(c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.
§ 35.20 Justification; use of physical force in defense of premises and in defense of a person in the course of burglary
1. Any person may use physical force upon another person when he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of a crime involving damage to premises. Such person may use any degree of physical force, other than deadly physical force, which he or she reasonably believes to be necessary for such purpose, and may use deadly physical force if he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of arson.
2. A person in possession or control of any premises, or a person licensed or privileged to be thereon or therein, may use physical force upon another person when he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of a criminal trespass upon such premises. Such person may use any degree of physical force, other than deadly physical force, which he or she reasonably believes to be necessary for such purpose, and may use deadly physical force in order to prevent or terminate the commission or attempted commission of arson, as prescribed in subdivision one, or in the course of a burglary or attempted burglary, as prescribed in subdivision three.
3. A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.
Ohio
Ohio's Senate Bill 184 (SB184) took effect September 9, 2008. This bill updated the Ohio Revised Code with sections pertaining to Castle Doctrine and other areas of the ORC that were known to be unclear.
ORC 2307.601: No duty to retreat in residence or vehicle.
(A) As used in this section:
(1) “Residence” and “vehicle” have the same meanings as in section 2901.05 of the Revised Code.
(2) “Tort action” has the same meaning as in section 2307.60 of the Revised Code.
(B) For purposes of determining the potential liability of a person in a tort action related to the person’s use of force alleged to be in self-defense, defense of another, or defense of the person’s residence, if the person lawfully is in that person’s residence, the person has no duty to retreat before using force in self-defense, defense of another, or defense of that person’s residence, and, if the person lawfully is an occupant of that person’s vehicle or lawfully is an occupant in a vehicle owned by an immediate family member of the person, the person has no duty to retreat before using force in self-defense or defense of another.
Effective Date: 2008 SB184 09-09-2008
ORC 2901.05: Burden of proof - reasonable doubt - self-defense.
(B)(1) Subject to division (B)(2) of this section, a person is presumed to have acted in self defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.
Effective Date: 11-01-1978; 2008 SB184 09-09-2008
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
Reasonable suspicion
Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch' ";...
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
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
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 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 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 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 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, 2011 Assembly Bill 69, passed the Senate on Thursday, Nov 3, 2011 and the Assembly on Friday, Nov 4, 2011; it is expected that Governor Scott Walker will sign the bill. The bill creates an automatic presumption of immunity for an act of self-defense for any person who uses deadly force while in his residence, motor vehicle, or place of business and is not engaged in illegal activity. The bill also limits civil liability when someone uses deadly force as outlined in the bill.
Origins
According to Matthew Henry's—and others'—understanding of the TorahTorah
Torah- A scroll containing the first five books of the BibleThe Torah , is name given by Jews to the first five books of the bible—Genesis , Exodus , Leviticus , Numbers and Deuteronomy Torah- A scroll containing the first five books of the BibleThe Torah , is name given by Jews to the first five...
, 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
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
's Commentaries on the Laws of England
Commentaries on the Laws of England
The Commentaries on the Laws of England are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1769...
, he states that the laws "leave him (the inhabitant) the natural right of killing the aggressor (the burglar)" and goes on to generalize in the following words:
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
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
share a common background with current castle doctrine laws.
State-by-state positions
For the states with a Castle Doctrine, an external link is provided to the text of the specific statute, if available. If a direct link is unavailable, for example if the destination website uses JavaScript, the statute name and/or number is listed.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 http://www.lrc.ky.gov/krs/503-00/055.pdf
- Louisiana
- Montana
- Nevada
- New Hampshire(A proposed law was vetoed in 2011, but was overridden and takes effect November 2011.)
- Oklahoma Title 21§1289.25
- Pennsylvania
- 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 - Alaska Statute 11.81.335(b) provides that an individual has no duty to retreat before using deadly force if they are in their home, their workplace, protecting a child or protecting a family member. The 27th Alaska Legislature is currently considering H.B. 80 "An Act relating to self defense in any place where a person has a right to be." which would essentially eliminate the duty to retreat for any place a person is legally, making Alaska a "stand your ground" state. However, an identical measure, H.B. 381, failed to pass the 26th Alaska Legislature.
- California California Penal CodeCalifornia Penal CodeThe Penal Code of California forms the basis for the application of criminal law in the American state of California. It was originally enacted in 1872 as one of the original four California Codes, and has been substantially amended and revised since then....
§ 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 http://llr.lls.edu/volumes/v36-issue4/documents/9selfdefense.pdf. CALCRIM 506 gives the instruction, "A defendant is not required to retreat. He or she is entitled to stand his ground and defend himself and, if reasonably necessary, to pursue an assailant until the danger ... has passed. This is so even if safety could have been achieved by retreating." However, it also states that "[People v. Ceballos] specifically held that burglaries which 'do not reasonably create a fear of great bodily harm' are not sufficient 'cause for exaction of human life.'” The court held that because a "trap-gun" was used, the doctrine did not apply. http://wings.buffalo.edu/law/bclc/web/calceballos.htm - 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
- Georgia (a person who is attacked has no duty to retreat; [...] has a right to meet force with force, including deadly force;)
- 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-defenseMaryland self-defenseIn the state of Maryland, the right of self-defense is primarily governed by case law and jury instructions. At present, the topic of self-defense is not explicitly covered by statute.-Duty-to-retreat:...
(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 the individual honestly and reasonably believes that deadly force is necessary to prevent imminent death or imminent great bodily harm or imminent sexual assault to himself or herself or to another individual.) http://www.legislature.mi.gov/%28S%28gcxquwmvml41xm550t1pxcea%29%29/mileg.aspx?page=getobject&objectname=mcl-Act-309-of-2006&query=on&highlight=act%20AND%20309
- 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. (ORSOregon Revised StatutesThe Oregon Revised Statutes is the codified body of statutory law governing the U.S. state of Oregon, as enacted by the Oregon Legislative Assembly, and occasionally by citizen initiative...
161.209-229. Use of force justifiable in a range of scenarios without a duty to retreat specified. Oregon Supreme CourtOregon Supreme CourtThe Oregon Supreme Court is the highest state court in the U.S. state of Oregon. The only court that may reverse or modify a decision of the Oregon Supreme Court is the Supreme Court of the United States. The OSC holds court at the Oregon Supreme Court Building in Salem, Oregon, near the capitol...
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)
- 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 Mexico
- Virginia
- Vermont
- District of Columbia
In other countries
IsraelIsrael
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
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
Shai Dromi
Shai Dromi is an Israeli farmer who, in an act of self-defense, shot and killed a trespasser and wounded another on 13 January 2007 at 3am after discovering his dog had been poisoned, allegedly by four intruders. On 15 July 2009, he was acquitted of manslaughter but convicted on charges of illegal...
, a farmer who shot intruders on his farm late at night. In addition, Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
passed a "Castle Doctrine" style law in 2005.
Related sayings
- a man's home is his castle
- an Englishman's home is his castle