Castle Doctrine, Stand Your Ground, and Related Concepts

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Kleanbore

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The subjects of a legal duty to retreat, "stand your ground" laws, castle doctrine, and other legal provisions closely related to castle doctrine come up rather often in discussions on THR, in internet discussions, and in televised repots on incidents involving the use of force.

There is a great deal of confusion on these subjects, and a lot of misinformation has been put out--some even from law professors who are clearly not highly conversant in the specialized field of use of force law.

Members of the staff have endeavored to prepare a clear explanation of the meanings of each of these terms.

It is essential that people who carry weapons of any kind, or who wield other objects, for self defense understand the law as it relates to the threat or use of force, not only in their own jurisdictions but in places to which they travel. However, one cannot be assured of getting such an understanding simply by looking in state legal codes for a mention of any of these subjects or for the absence of words on the subject. One must also understand what the common law says about the subject.

This post supersedes a Sticky post that was prepared here in 2013.

More information may be found in Massad Ayoob's MAG-20 class, and they are covered in some detail in Attorney Andrew Branca's Law of Self Defense Level 1 Class and in many of the LoSD blog posts.

This is a general summary, and it necessarily omits state-specific details. In law, details can matter a great deal. Be sure that you understand that, and that you understand the law.

The first of these related subjects is the duty to retreat. This refers to a legal obligation of a defender to retreat from a confrontation before using deadly force in self defense. The second is in effect the other side of the coin--the right of an innocent person in a place in which he has a legal right to be to "stand his ground" rather than attempt to retreat in a self defense incident. A third involves a concept known as "castle doctrine", which obviates any requirement of a person within his "castle" before defending himself or others from harm. A fourth subject involve legal provisions that addresses the lawful use of force in a dwelling, automobile, and sometimes in a place of business.

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Duty to Retreat

The name is self evident; in some jurisdictions, a defender must retreat, or attempt to retreat, if retreat is safely possible, before a using force or deadly force in self defense. The requirement, where it exists, applies only when the defender has reason to believe that retreat is safely possible. Historically, one of the difficulties encountered in defenses of justification has been the ability of the defender to provide evidence that he or she had not been able to retreat safely.

Many people may believe that the legal imposition of a duty to retreat is a rather recent historical development. Actually, the concept of duty to retreat is a very old one, going back at least to the era of the English Common Law. The principle was that a man was obligated to "retreat to the wall" before he would be excused for harming another person by using deadly force. That was a product of the age of contact weapons, and it was intended to help in the determination of who was the attacker and who was the defender.

All of our states except one adopted the English Common Law as it existed at the time that statehood went into effect. The Common Law, though age old, does change over time, through rulings made by judges in appellate (not trial) courts. In fact, the Common Law was the product of learned judges, and not that of elected legislatures or kings or noblemen. The duty to retreat was embodied in the Common Law. Thus, there was a duty to retreat in virtually all US jurisdictions at one time.

For this reason, a duty to retreat exists even in some states in which it is not mentioned at all in the state criminal codes. The requirement exists simply because it is embodied in legal precedent--that is, in common law.

The legal duty to retreat has been eliminated, by statute or by legal precedent, in jurisdictions with "stand your ground" provisions.

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"Stand Your Ground" Provisions

Note: we are speaking here only of the elimination of a legal duty to retreat. For reasons having to do with the fact that, in a jurisdiction or two, more than one legal subject has been addressed along with other things in a more comprehensive law. We see news reports that mention "stand your ground" hearings. Those really have nothing to do with the elimination of a duty tor retreat. Rather, they have to do with legal provisions that can provide immunity from prosecution to an accused person, and prevent case from going through a protracted and costly trial if immunity is granted. That's a different subject altogether.

In some states, court rulings have eliminated the duty to retreat, sometimes in the home, sometimes in places of business or other specified locations, and sometimes, wherever a person has a legal right to be.

In others, such as Kansas and Texas, to name just two examples, laws enacted by state legislatures have eliminated the need for a citizen to retreat before using deadly force when deadly force becomes immediately necessary. The laws in such states are sometimes referred as "stand your ground" laws.

There are two different "kinds" of Stand Your Ground laws.

In all states with such laws, the legal duty to retreat is obviated.

But in some states, juries may be instructed that, while, there was no legal duty to retreat, the jurors may consider whether retreat had been safely possible in judging whether the use of force had been reasonable under the circumstance. Failing the reasonableness states will negate a legal defense of self defense.

In other states, juries are instructed that the possibility of safe retreat may not be taken into account at all.

The distinction may or may not be evident in the code.

One cannot rely on the reading of state codes alone to establish whether a duty to retreat exists unless the legislature of the state in question has enacted something on the subject.

It is important to understand what "stand your ground" laws and court rulings that eliminate the duty to retreat mean, and also what they do not mean.

Where the duty to retreat has been eliminated, a defender is not required to provide evidence that he or she had in fact attempted to retreat, or that he or she had had reason to believe that retreat had not been safely possible.

It is even more important to understand that neither "stand your ground" laws or court rulings of similar effect change the fundamental tenets of the use of force laws. Their only effect is to remove the duty to retreat. Force, deadly or otherwise, may only be used when it is immediately necessary and otherwise justified under the law.

The fact that the duty to retreat has been eliminated in a particular jurisdiction does not mean that one may lawfully use deadly force after initiating a confrontation or provoking another person unless one can provide evidence that he or she made every attempt to break off the encounter before resorting to deadly force.

That is so important that it bears repeating. Put another way, a defender who initiates or causes a confrontation must make a clear effort to retreat and deescalate in order to be able to claim self-defense legally.

Given the ability to retreat safely, it remains a very good tactic to do so if possible, and having done so can be very useful indeed in a defense of justification, even where the duty is no longer embodied in the law.
Related to this subject is the important subject of castle doctrine.

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Castle Doctrine

The term "castle doctrine" stems from another age-old legal concept--the concept that a "man's home is his castle". It too has its roots in antiquity. It was part of the early English Common Law, but parts of it go back to Roman Law, to the Code of Hammurabi, and to the Code of Ur-Nammu.

Strictly speaking, the castle doctrine establishes that a person in his "castle" has no legal duty to retreat before defending himself. That really is all that a Castle Doctrine law provides. Castle doctrine does not give a resident license to shoot someone in his house.

As in the case of the duty to retreat and the right to not retreat (to "stand your ground"), castle doctrine provisions are variously defined in state codes and in appellate court rulings (legal precedent). One should never rely on a layman's reading of the code, or on any one statute taken out of context.

Castle doctrines vary among jurisdictions. Some of the differences involve the following:
  • Which structures or parts of same are covered;
  • whether or not a business or a place of employment is covered;
  • whether or not the law applies to an occupied automobile;
That list is not exhaustive.

It must be emphasized that castle doctrine protection is not automatic. The defender will usually have to provide some evidence that he or she knew, or had reason to believe, that the thresholds for castle doctrine justification (for example, the fact of a forcible and unlawful entry, when that applies) had been met. The physical evidence may clearly support that, or it may not.

Again: castle doctrine laws DO NOT provide a resident with a carte blanche right to employ deadly force simply because someone has entered a domicile unlawfully. What they do is eliminate a duty to retreat.
Some legal web-pages state that castle doctrine laws permit defender to employ deadly force within their residences, occupied automobiles, and so on. They are likely defining other law in their discussion of castle doctrine per se.

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Other Laws Related to Castle Doctrine

In addition to the castle doctrine per se, there are laws in some states that address certain aspects of the justification for the use of deadly force within an occupied home or other specified property.

These laws, which are often referred to as castle doctrine laws, are invariably found in code sections that relate to the use of force in defense of persons. They are not intended to provide to the use of force to defend real property per se. The thought process is that a person may be more assured of his right to lawfully defend himself and others in his home, etc, when immediately necessary, and when the other necessary conditions exist.

In essence, these provisions, either explicitly or otherwise, provide a resident, or his or her guest, with a legal presumption that, in the invent of an unlawful entry by an intruder, or in some cases and attempt at unlawful entry, the occupant may reasonably assume the existence an imminent threat of death or serious bodily harm.

The aforementioned presumption is rebuttable: iif it is evident that the "intruder" does not pose a serious threat, or has ceased to do so, the presumption ceases to apply.

Let us emphasize " or has ceased to do so": if someone elects to depart, it is essential to not attempt to stop him by using deadly force.

The statutes, the legal precedent, and the jury instructions vary among jurisdictions. In some states, forcible entry must be completed before the law comes into effect. In some cases, an unlawful entry made by stealth may apply. In others, an attempt at unlawful entry would trigger the law. In others, conditions other than unlawful entry are brought into the equation. These details may not be evident in the criminal code.

And as in the case of the castle doctrine, these legal provisions are not intended to provide residents or others with an absolute right to employ deadly force in the absence of the existence of other necessary conditions.

Phrasing such as "deadly force may not be used unless [reference to something like forceable entry]" should not be interpreted automatically to mean "deadly force may always be used if". There may be other things in the code or in common law, or in standard jury instructions, that would have to be taken account.

If someone has been invited into a home and the get-together takes a turn for the worse, the law would take a dim view of a resident's resort to deadly force without compelling reason. There have been other examples of situations in which persons who have shot people who have entered a home unlawfully have been convicted of having used deadly force unlawfully.

The gist is that with such provisions, a defender who uses force, deadly or otherwise, within his home, etc. will be provided with important presumptions regarding imminent danger that would not exist in the case of an encounter somewhere else. The benefit to the lawful defender can be very significant indeed.

It is important to understand that one may well be justified in the use of deadly force in itself defense instances in which none of the above-mentioned conditions are met.

One should never try to base a use of force decision on an evaluation of what may make the action lawful at the time. Deadly force in particular should always be regarded as a last resort, to be used only when it is immediately necessary.

Put another way, the question is not one of when we may employ force, but one of when it cannot be avoided.
 
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