SELF DEFENSE LAWS: CASTLE DOCTRINE, STAND YOUR GROUND, AND THE DUTY TO RETREAT

(Image by Oleg Volk)

Nothing in here is meant to be taken as legal advice and it is all extremely general statements of complex and often fact specific laws.  I can not stress that enough, especially in a post like this where the laws vary wildly by state and the line between self defense homicide and murder relies so heavily not only on the exact facts of the situation but the perception of those.

Nothing in here is meant to incite anything or to encourage any kind of homicide (basically, nobody point to my post later on and say, “She said I could!”).  If you are easily offended by someone saying you get to shoot bad guys, don’t read this, because I don’t want to deal with the whining and people getting their feels hurt (New Saying: Argue Facts not Feels).  Also, we’re discussing a private citizen’s right to self defense, as in homicide you argue was justifiable under the circumstances because you were under attack, not how to get away with murder or anything having to do with police.

First up: Castle Doctrine!  This was my favorite doctrine in all of 1L Torts.  My friends said the Amie battle cry was, “Castle Doctrine!”  There was a running joke about me having a pet tiger behind the door to take out intruders.

Okay, serious now.  This is the idea that your home is your castle (and it comes up far more often in criminal law than in torts, I just happened to take torts first).  The majority of states have some sort of Castle Doctrine, which basically allows you to use self defense, including and up to deadly force, on someone if they break into your home with you there.  The theory behind this is you can assume someone breaking into your home while you are there means to do you harm.  You don’t have to wait to be attacked or try to get away first, because it’s your castle.

This doesn’t apply to your home when you’re not in it, like having a loaded gun behind the door rigged up to shoot if anyone opens it.  So it begs serious questions about what happens if you come home with someone there and shoot them.  (A general rule is you don’t get to kill someone to defend just property, that’s why no traps to kill people when you’re not home.  What you’re supposed to do against a bigger opponent running off with your stuff when you walk up and they just finished burglarizing your home is beyond me.)

Obviously the rule varies by state.  A state may have a Castle Doctrine, but a diluted one, like you would have to have reason to believe the person is there to harm you before you shoot them as opposed to thinking they’re merely stealing something.  Some states don’t have a Castle Doctrine, you’d have the same duty to retreat as elsewhere (which is stupid, where are you going to flee if not to the safety of your home, but whatever, that’s why I don’t live in those states).

Now, this gets very convoluted even in states with strong Castle Doctrines (come on, it’s law, you’re not surprised by this).  What if you knew the person?  You can claim they broke in illegally, but if you were friends or lovers, the Prosecution (I say that instead of the cops because the cops could arrest you and then the Prosecutor could drop it later because cops don’t know the law like a lawyer does, they just know their training) may not believe they were breaking in and indict you anyway, leaving it for the jury to decide.

What if the thief saw you and tried to leave and you shot them in the back?  If the statute doesn’t address this, it’s for the courts to interpret if you could shoot a fleeing person, and if they say no then it’s up to the jury to decide if they believe the person was fleeing.  Maybe the person wasn’t running, you shot and that spun them and you kept shooting or they were running out with your stuff or you were in shock, whatever the reason, the Prosecution may decide to charge you and sort it out later.

These don’t even touch on if you live together and your partner attacks you (domestic violence and the woman’s right to defend herself will be discussed later because it deserves its own post), or if a security guard shoots people breaking into a commercial property such as a store.  Those are treated as different areas of law with their own rules.  When it comes to the first one, those rules should be a bit more bendy, but hey, another post, another time.

General Rule: It’s easier to justify killing someone as self defense in your home than outside it (again, this doesn’t include cases of domestic violence and battered women).  Once you’re outside the home, it’s a lot more complicated.

Number Two: Stand Your Ground.  This is where the state has laws allowing you to defend yourself without having to try to flee first.  Basically, you don’t have a duty to flee a possibly dangerous scene; you have just as great a right to be in some public place as anybody else and thus can keep yourself right there and defend yourself right there.

But even then, self defense is murky!  States differ in their requirements for you to defend yourself with deadly force.  Some say something like you had to be in reasonable fear for your life or serious bodily injury.  Some say something along the lines of protecting yourself from a crime upon your body or a violent crime.  But you can’t have started the physical altercation or at least you can’t have been the one to escalate it to a deadly situation.

You see now why I say it’s so fact specific.  The state’s law is usually pretty clear in stating their requirements like “reasonable fear,” “death or serious bodily injury,” and “escalate the situation,” but what the hell do those terms mean?

As an aside: (Warning, warning, Angry Amie Rant!) One argument I got on Facebook last year (and yes, this guy was lucky he didn’t say this to my face) was that many rapes don’t count as serious bodily injury and so women shouldn’t shoot their attackers.  Luckily the laws with terms like serious bodily injury include rape (as far as I know from the ones I’ve looked up) under that so we don’t have to get into that debate.  The guy tried to backpedal, saying something like then I’d have to agree that rape should be a death penalty crime.  One, that’s a logical fallacy, the law treats something used as a preventative measure differently than something used to punish later on.  Two, yeah, I do think rape should be a death penalty crime.  The Supreme Court disagrees with me so no state can do that.

Okay, back to the law.  Usually the law will do something to help define terms like bodily injury or serious or escalate.  There will be guidelines, but these just set out a framework.  The actual facts of what happened are up to the jury.  So if a woman is walking to her car and gets grabbed by a big guy and she shoots him, that’s usually something that’s considered justifiable self-defense under the law.

This doesn’t mean the Prosecution won’t indict her!  She may have to go in front of the jury and prove the affirmative defense of self-defense.  What if he was just trying to steal her purse and that state’s law doesn’t allow for self-defense unless there’s the reasonable fear of serious bodily injury?  She can argue in the heat of the moment she feared for her safety, but the jury has to believe her.

How about in a bar brawl?  Guys of roughly equal size are being stupid and macho.  They start to throw punches, both basically started it and both could have just left (just because the law doesn’t require you to leave before defending yourself doesn’t mean it’s smart to stay).  One guy gets the other to the ground and starts beating his head into the sidewalk.  Does the downed guy get to pull out his gun and shoot the other one because it’s the only thing he can think to do when it gets to this point?  They both were fighting and then it escalated.  This one would probably go to the jury.  Depending on the state’s specific laws on what counts as starting it and escalating it and what the jury believes, he might get off as self defense or might get a lesser charge like manslaughter.

The jury decides what is reasonable considering all the evidence presented to them in the situation.  They get to decide who to believe.  The woman claims the guy was trying to rape her, but the security camera shows him going for her purse and twisting like he’s going to run soon as he snatches it.  The jury has to decide what’s reasonable for the victim to believe in that moment.

And Three: Duty to Retreat.  (It is either two or three in a state; I can’t imagine a scenario where a state could logically have both.)  These are states that say to claim self-defense you had to have tried to leave the situation first.  Again, that’s just a very general description.

This is where the guy in the bar fight would have had to try to leave.  But leave when?  When the fight started?  When the fight escalated to deadly force?  It depends on the state and what courts have dealt with in interpreting statutes.  The state may say in the statute that a person has to try to leave when the fight starts, or the state may not have addressed this, or may have waffled around it with vague language hoping the courts would deal with it later.

It’s easy to say the person should try to leave the situation first, but hard to determine what counts as that in practice.  And harder still to prove!

In conclusion, in cases of self-defense there are different laws in different states and you just have to look your state’s up.  Usually you can find the statutes online with a quick Google of terms like [state] laws on self-defense, castle doctrine, and stand your ground.  Even then, it gets so fact specific that nobody can guarantee you will or won’t get charged with murder in a specific scenario.  Once it’s in front of a jury, your lawyer does her damndest to prove your fear in that situation and that you were reasonable in your defense.

It depends on the state.  It depends on the situation.  And once you get down to what’s reasonable, fair or not, it depends on what it looks like.  In self-defense cases perception means a whole hell of a lot.  A small woman, a person in a wheelchair, an elderly gentleman, someone who’s already severely injured, are all going to have an easier time convincing a jury they were in fear and had no other recourse but to shoot someone (even if the state law doesn’t require you believe there be no other recourse specifically, it’s usually a good selling point for the jury), than a normal or bigger sized guy in normal health.

Bottom line, you’re going to do what you need to do in the situation.  When you’re sorting it out later is when the specific laws of your state and how you think the cops are interpreting the situation matter, and then you hire a damn good attorney.

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