A bit more than three years ago (November 2013), I wrote (applying the four elements of my deadly force paradigm) on armed response to a home invasion. See “‘CASTLE’ DEFENSE: WHAT CAN–MAY–SHOULD–MUST YOU DO.” [See also other active links in the text below, and related MSW posts referenced below]. For our purposes here, “home invasion” is defined as an unlawful and forceful entry by stranger(s) into the enclosed confines (fenced or walled grounds, or building interior) of an occupied residential dwelling.
In the prior post, I offered for consideration on the SHOULD and MUST: “The legally recognized sanctuary of your “castle” has been invaded. The presence of criminal-minded strangers who have made forceful entry often ends in great bodily harm or death, and such heinous crimes carry long prison sentences. Innocent lives (yours included) are clearly in extreme peril. Escape is often impossible or impractical, as an attempt to do so may put innocent life in increased danger. You have issued a verbal challenge or decided to do so would be tactically unsound, and have a target at gunpoint or are at your favorite ready position. The home invaders are now aware the castle is occupied and their presence is known, but have chosen not to make a hasty exit. If not now, when?” (Italics added here for emphasis).
I intended to create an imperative for reader takeaway — that a home invasion presents unique (sui generis in lawyerspeak) dangers and applicable legal principles. I implicitly advocated the adoption of a use of deadly force “line in the sand” to be drawn by “castle” defenders. In most circumstances, the “line in the sand” should give near short shrift to the notion of “anything but” deadly force, or deadly force “only as a last resort.”
My revisit of the topic is prompted by several internet postings (by established self-defense professionals and firearms trainers), podcasts, and forum discussions which more recently addressed the home invasion scenario. For the most part, these offered or suggested the view that deadly force is usually to be rejected as the instinctual, pre-planned reply to the discovered presence of one or more home invaders in the “castle.” Similar to the sage advice given for potentially violent and criminal interactions occurring outside the “castle,” they urged that the first considered response ought to be that of avoidance, evasion, and retreat. I am not convinced. The basis for the difference of thought is likely in my application of the CAN and MAY.
So, where do I think they went astray on the CAN? I think the typical “castle” includes adults who, although they possess firearms, have limited firearm skills, and little or no command presence or less lethal skills. Or experience dealing up close with violent criminals. Or gun-pointing a person (or two or three) while multi-tasking (calling police, ushering family member(s) and/or pet(s) out of harms way). In addition, the typical “castle” is occupied by two or more individuals, and very often also by young children and/or teenagers. (For sure, an “operator” who is “home alone” evokes different strategies). The self-identified or assigned armed “defender” is only seldom present in the same room as all other occupants, and in possession or close proximity to the home defense firearm(s). And will be neutralized in any defensive opposition attempt once a loved one is grabbed up and threatened or used as a shield. The logistics seem to me to be just too complicated to effect a tactically sound evasion or retreat for all. And there will only be a small window in time, probably within seconds of the invader(s) making entry, when the innocent will have the upper hand and ability to bring a firearm to bear with high probability of success. It is possible that upon a successful retreat and ensconcement that the invader(s) flee(s). Great. But what if on the way out, the “castle” is set ablaze, trapping the ensconced? It has happened. The bottom-line: Establish an event dependent deadly force “line in the sand” (you spy home invader(s) who are armed, invader comes upstairs, an unarmed acquires a weapon, there are multiple invaders, an invader is closer to a loved one than you are). Then have a second protocol, with the understanding of its complexities and limitations, which is flexible depending on the home layout, presence of others, mindset, skill, equipment, etc., which would include escaping from or retreating within the castle if, with near absolute certainty, all can do so in safety (that is, completely unscathed).
What about the MAY? First: There is almost universally no legal obligation to practice conflict avoidance or retreat within the “castle.” Nor is there likely any legal obligation to issue any sort of verbal challenge or warning before deadly force is employed. Second: In many states, home invaders are by definition committing one or more felonies for which deadly force is permitted as a lawful response, independent of whether there is demonstrated that an innocent reasonably believed he or she or another was likely to suffer imminent death or great bodily harm. Home invasion defense, like opposing a robbery, is not the defense of property. Third: In many states, there is a legal presumption that the home invader possessed lethal intent and/or that an invaded reasonably believed that deadly force was necessary. (See a recent incident in North Carolina — discussed HERE). Fourth: In some states, an innocent victim of a home invasion who uses deadly force lawfully is granted immunity from criminal prosecution and a civil liability judgment. The effect of these considerations is that criminal prosecution and/or civil liability are so unlikely that “castle” defense ought not be analyzed like self-defense outside the “castle.” Fifth: A home invasion “negative outcome” (target identification failure) can readily be eliminated with a modicum of common sense — and a flashlight.
Know your limitations in making plans for defense of the “castle.” Know the law as well. Consider beforehand when the MUST necessarily drives the response. The “conflict,” “ugliness,” and the “unthinkable” are already upon you the moment a home invasion begins. To raise the chances for a successful outcome, consider tools which alert/delay, including: Dogs, perimeter electronics, window film, security doors, and wireless emergency notification devices. Always have what you might need on your person or in the room with you. And wherever you are in the “castle,” bring an already prepared mind to the fight.
Disclaimer: No MSW post constitutes particularized legal advice, or creates an attorney-client relationship with a reader.