BEAUTIFUL, ALSO, ARE THE SOULS OF MY BLACK SISTERS

THE CASTLE DOCTRINE LAWS

Ann
Advertisements
With the case of Joe Horn of Pasadena, Texas in the news lately, (and especially late last year, when news of his shooting two unarmed burglars broke, and when I first posted on this story, https://kathmanduk2.wordpress.com/2007/11/17/putting-property-above-human-life/ ), many people may have questions on the concept of “Castle Doctrine Law”, so I decided to post on this little known law of self defense, and how it differs from other laws of self defense.
 
Many people are not familiar with the ‘Castle Doctrine Law’ (also known as
‘No duty to retreat if in home law’ ( in Texas it is know as ‘Stand your ground law/no duty to retreat anywhere’ law). The law differs from state-to-state, and some states do not have the Castle Doctrine on their law books. The law takes its moniker from the phrase:  “A man’s (or woman’s) house is his/her castle“.
 
Castle Doctrine (also known as a Castle Law or a Defense of Habitation Law) is an American legal concept derived from English Common Law, which designates one’s place of residence (or, in some states, any place legally occupied, such as one’s car or place of work) as a place in which one enjoys protection from illegal trespassing and violent attack. It then goes on to give a person the legal right to use deadly force to defend that place (his/her “castle”), and/or any other innocent persons legally inside it, from violent attack or an intrusion which may lead to violent attack. In a legal context, therefore, use of deadly force which actually results in death may be defended as justifiable homicide under the Castle Doctrine.
 
Castle Doctrines are legislated by state, and not all states in the US have a Castle Doctrine. The term “Make My Day Law” comes from the landmark 1985 Colorado statute that protects people from any criminal charge or civil suit if they use force – including deadly force – against an invader of the home. The law’s nickname is a reference to the famous line uttered by Clint Eastwood’s character Dirty Harry in the 1983 film Sudden Impact, “Go ahead, make my day”.
 
This legal doctrine is often linked to the rights of homeowners to bear arms, as defined in the Second Amendment of the U.S. Constitution in the case of District of Columbia v. Heller.
 
The original law enacted in 1973, during a rewrite of the penal code, the Legislature imposed a duty for a person facing criminal attack to retreat if a reasonable person would do so under those circumstances, thus requiring Texans to attempt to retreat when criminally attacked. It also allowed a person to use deadly force to prevent someone from committing a break-in at night. In 1995, the state legislature passed an exception to the need to retreat if the attack occurred in a person’s home, allowing the use of force without retreat when the intruder had illegally entered the victim’s home. The SB. 378 amended the previous law where you no longer had to retreat within your own home before the use of deadly force was committed. The state of Texas allows for the use of “deadly force” only when the occupant of their living abode feels a serious threat to their life exists.   
 
The revised law allows Texans to use deadly force “without retreat” when defending themselves, their homes, cars and workplaces.
 
 
 
Here are the states which have Castle Doctrine Laws in their statutes:
 
 
 
States with a Castle Law (No duty to retreat anywhere):
 
States with a Castle Law (No duty to retreat if in the home):

 

  • Alaska
  • Colorado (Colorado Revised Statutes Section 18-1-704.5 Use of deadly physical force against an intruder.)
  • Connecticut
  • Hawaii (Retreat required ouside the home if it can be done in “complete safety.”)
  • Maine (Deadly force justified to teminate criminal trespass AND another crime within home; duty to retreat not specifically removed)
  • Maryland See Maryland self-defense (Case-law, not statute, seems to have incorporated the castle-doctrine into Maryland self-defense law).
  • Massachusetts
  • Michigan (more recent law–Act 309 of 2006–does not relieve duty to retreat “unless [deadly force is] necessary to prevent imminent death;” this represents no change from common law, which does not require retreat unless it can be safely done)
  • Missouri (Extends Castle Doctrine to one’s vehicle)
  • Ohio (Extends to vehicles of self and immediate family; effective September 8th, 2008. Section 2901.09
  • North Carolina)
  • Rhode Island
  • West Virginia
  • Wyoming
States with weak Castle Law: duty to retreat not removed, but deadly force may be used to end invason of home without presence of immediate lethal threat:
  • Idaho (Homicide is justified if defending a home from “tumultuous” entry; duty to retreat not specifically removed)
  • Illinois (Use of deadly force is justified if defending a home from “tumultuous” entry; duty to retreat not specifically removed)
  • Kansas (§ 21-3212. Use of force in defense of dwelling. A person is justified in the use of force against another when and to the extent that it appears to him and he reasonably believes that such conduct is necessary to prevent or terminate such other’s unlawful entry into or attack upon his dwelling.)
  • Minnesota (Homicide justified to prevent the commission of a felony in the home)
  • Montana (Deadly force justified to prevent felony in the home).
  • Utah
  • Washington
Here are the states with no known Castle Laws on their books:
 
States with no known Castle Law:
 
 
 Iowa (Law does not require retreat from home, but may require retreat within the home) Ohio. (However, the 127th Gen Assembly is considering “Castle” legislation under S.B. 184 and H.B. 264. 4/16/2008 – In its sixth (and final!) hearing on Ohio’s Castle Doctrine legislation today, the Ohio Senate Judiciary Committee on Criminal Justice accepted yet another amended substitute HB184, passed the bill (Committee members Teresa Fedor and Shirley Smith – both Democrats – voted no, Senator Lance Mason, the third Democrat committee member, was absent). Just a few hours later, the full Senate took up consideration of the bill. It received 31 yeas, 0 nays. There are 33 members in the Senate. Pennsylvania – Relevant statute not found; “Stand your ground” legislation pending;  Virginia
 
________________________________________________________________
 
I have included the amended portion of Texas’s Castle Doctrine Law ( revised September 1, 2007.)
 
 
S.B. No. 378
 
   
 
     
 
 
  A BILL TO BE ENTITLED
  AN ACT
  relating to the use of force or deadly force in defense of a person.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 9.01, Penal Code, is amended by adding
  Subdivisions (4) and (5) to read as follows:
               (4)  “Habitation” has the meaning assigned by Section
  30.01.
               (5)  “Vehicle” has the meaning assigned by Section
  30.01.
         SECTION 2.  Section 9.31, Penal Code, is amended by amending
  Subsection (a) and adding Subsections (e) and (f) to read as
  follows:
         (a)  Except as provided in Subsection (b), a person is
  justified in using force against another when and to the degree the
  actor [he] reasonably believes the force is immediately necessary
  to protect the actor [himself] against the other’s use or attempted
  use of unlawful force.  The actor’s belief that the force was
  immediately necessary as described by this subsection is presumed
  to be reasonable if the actor knew or had reason to believe that the
  person against whom the force was used:
               (1)  unlawfully entered, or was attempting to enter
  unlawfully, the actor’s habitation, vehicle, or place of business
  or employment;
               (2)  unlawfully removed, or was attempting to remove
  unlawfully, the actor from the actor’s habitation, vehicle, or
  place of business or employment; or
               (3)  was committing or attempting to commit aggravated
  kidnapping, murder, sexual assault, aggravated sexual assault,
  robbery, or aggravated robbery.
         (e)  A person who has a right to be present at the location
  where the force is used, who has not provoked the person against
  whom the force is used, and who is not engaged in criminal activity
  at the time the force is used is not required to retreat before
  using force as described by this section.
         (f)  For purposes of Subsection (a), in determining whether
  an actor described by Subsection (e) reasonably believed that the
  use of force was necessary, a finder of fact may not consider
  whether the actor failed to retreat.
         SECTION 3.  Section 9.32, Penal Code, is amended to read as
  follows:
         Sec. 9.32.  DEADLY FORCE IN DEFENSE OF PERSON.  (a)  A person
  is justified in using deadly force against another:
               (1)  if the actor [he] would be justified in using force
  against the other under Section 9.31; and
               (2)  [if a reasonable person in the actor’s situation
  would not have retreated; and
               [(3)]  when and to the degree the actor [he] reasonably
  believes the deadly force is immediately necessary:
                     (A)  to protect the actor [himself] against the
  other’s use or attempted use of unlawful deadly force; or
                     (B)  to prevent the other’s imminent commission of
  aggravated kidnapping, murder, sexual assault, aggravated sexual
  assault, robbery, or aggravated robbery.
         (b)  The actor’s belief under Subsection (a)(2) that the
  deadly force was immediately necessary as described by that
  subdivision is presumed to be reasonable if the actor knew or had
  reason to believe that the person against whom the deadly force was
  used:
               (1)  unlawfully entered, or was attempting to enter
  unlawfully, the actor’s habitation, vehicle, or place of business
  or employment;
               (2)  unlawfully removed, or was attempting to remove
  unlawfully, the actor from the actor’s habitation, vehicle, or
  place of business or employment of the actor; or
               (3)  was committing or attempting to commit an offense
  described by Subsection (a)(2)(B) [The requirement imposed by
  Subsection (a)(2) does not apply to an actor who uses force against
  a person who is at the time of the use of force committing an offense
  of unlawful entry in the habitation of the actor].
         (c)  A person who has a right to be present at the location
  where the deadly force is used, who has not provoked the person
  against whom the deadly force is used, and who is not engaged in
  criminal activity at the time the deadly force is used is not
  required to retreat before using deadly force as described by this
  section.
         (d)  For purposes of Subsection (a)(2), in determining
  whether an actor described by Subsection (c) reasonably believed
  that the use of deadly force was necessary, a finder of fact may not
  consider whether the actor failed to retreat.
         SECTION 4.  Section 83.001, Civil Practice and Remedies
  Code, is amended to read as follows:
         Sec. 83.001.  AFFIRMATIVE DEFENSE.  It is an affirmative
  defense to a civil action for damages for personal injury or death
  that the defendant, at the time the cause of action arose, was
  justified in using force or deadly force under Subchapter C,
  Chapter 9 [Section 9.32], Penal Code[, against a person who at the
  time of the use of force was committing an offense of unlawful entry
  in the habitation of the defendant].
         SECTION 5.  Chapter 83, Civil Practice and Remedies Code, is
  amended by adding Section 83.002 to read as follows:
         Sec. 83.002.  COURT COSTS, ATTORNEY’S FEES, AND OTHER
  EXPENSES.  A defendant who prevails in asserting the affirmative
  defense described by Section 83.001 may recover from the plaintiff
  all court costs, reasonable attorney’s fees, earned income that was
  lost as a result of the suit, and other reasonable expenses.
         SECTION 6.  (a)  Sections 9.31 and 9.32, Penal Code, as
  amended by this Act, apply only to an offense committed on or after
  the effective date of this Act.  An offense committed before the
  effective date of this Act is covered by the law in effect when the
  offense was committed, and the former law is continued in effect for
  this purpose.  For the purposes of this subsection, an offense is
  committed before the effective date of this Act if any element of
  the offense occurs before the effective date.
         (b)  Section 83.001, Civil Practice and Remedies Code, as
  amended by this Act, and Section 83.002, Civil Practice and
  Remedies Code, as added by this Act, apply only to a cause of action
  that accrues on or after the effective date of this Act.  An action
  that accrued before the effective date of this Act is governed by
  the law in effect at the time the action accrued, and that law is
  continued in effect for that purpose.
         SECTION 7.  This Act takes effect September 1, 2007.
 
RELATED LINKS:
 
“WIDER RULES ON SELF-DEFENSE APPROVED: PROSECUTORS WORRY ABOUT ‘SHOOT FIRST’ MENTALITY”:  http://www.statesman.com/news/content/region/legislature/stories/03/21/21guns.html
Also see the following case:
  
BEARD vs. UNITED STATES, 158 U. S. 550 (1895):   http://supreme.justia.com/us/158/550/case.html
 
Yes, it is an old case, but, please read it. Many laws written decades, centuries ago, still have bearing on all our lives.
 
The above states may have amended their laws; some states may have revised their “stand your ground” laws. Some of the language of each states laws may be unclear to readers. Please check your own state’s laws to obtain the legal statutes that affect you and the Castle Doctrine Laws for your particular state you reside in.

Advertisements

Advertisements