“CASTLE” DEFENSE: WHAT CAN–MAY–SHOULD–MUST YOU DO

Those who “sleep peaceably” in their bed must on occasion (and really short notice) rise to become “rough men ready to do violence” in defense of their castle.  (Hat tip to George Orwell).  Home invasion is perhaps the most frightening and dangerous of all violent crimes (it is committed out of public sight usually without fixed time/escape constraints and innocent occupants, often women and children, are rarely able to flee).  It is becoming somewhat commonplace during daylight hours and at night in both urban and rural neighborhoods.  Examples include two of the most horrific in memory, from Florida, (here) and (video here), one from Connecticut (here), one from Maine, an old one (here), and recent ones which ended in the death of  a home invader (here) and (here), other recent ones, also very ugly, (here) and (here), and a routinely reported compilation of many in California (here).  Finally, who can forget the single home invader who, for no apparent reason, brutally beat a New Jersey mother (video here) in front of her infant child? The spine chilling, heartbreaking details of these incidents provide good reality based scenarios for family drills training.

A home invasion commonly involves multiple malefactors who either didn’t anticipate the presence of occupant(s) when committing a residential burglary, or simply don’t care if the premises are occupied, because they have included in their criminal repertoire threatening deadly force or doing actual bodily harm, regardless of victim acquiescence.  Home invaders often have violent criminal pasts, impersonate law enforcement, and carry weapons.   Even if they enter unarmed, they easily find edged and impact weapons and other items (see above photo), which they can use to disable or restrain occupants or inflict lethal injury or great bodily harm.  (Spoiler: Restraint of or forcing occupants into another room against their will likely constitutes an independent crime of false imprisonment, kidnapping, or other felony to which deadly force is ordinarily the indicated and lawful response).

My focus here is the MAY component of my deadly force paradigm (prior MSW post here), that is: Does the law permit the use of deadly force in defense of castle?  Allow me to set up the MAY by first examining the use of defensive deadly force in a home invasion under the other components of my paradigm :  CAN — SHOULD — MUST.

The CAN component should be easily answerable for those with basic home defense training and practiced shooting skill (close quarters pistol and making the “rescue” shot).  It is your home, you are familiar with the layout, location of other occupants, areas of refuge, concealment and cover, and you have made preparation for a sudden, unlawful entry, including (when possible) emergency exfil of innocents.  You know the location of defensive weapons (maybe you are wearing a handgun) and have planned for various scenarios.   In addition, you have preselected ensconced positions of offensive and defensive superiority.  You retain the element of surprise (because of CCTV, perimeter alarm with panel identifying breached sensor or zone, activated lights, motion detectors, or other device).  Shooting will be likely be an engagement of less than 40 feet, with no uncertain intermediate barriers (you know which interior walls are wood, drywall, plaster, or concrete) or backstops.  Innocents have been secured with you, or if not, they are hunkered in a known location.  All of your defensive weapons, accessories, ammunition, untethered communication devices, and tactical and medical kit are on hand.  Eye and ear protection may be deployed, time and planning permitting.  If not here in your castle, where?

The SHOULD and MUST components are likewise easily analyzed, more so than in other self defense situations.  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?

Here’s my take on the MAY,  based on what I perceive to be a consensus of state laws applied to the scenario outlined above.  Force, but not deadly force is allowed when necessary to eject a simple trespasser from real property.  Deadly force is rarely permitted in the defense of real property.  (Notable exceptions are to prevent the setting or hurling of incendiary/explosive devices).  However, property crimes which include unlawful entry, that is, burglary, of occupied residential premises or home invasion robbery are not treated as mere property crimes.  This is because they include unlawful use of force or threat of unlawful force against persons.  In recognition of that, the law usually allows deadly force to be used to terminate the commission of such crimes without assessment of the victim’s belief or the imminence of the threat of death or great bodily harm.

When confronted with criminal threatening actors, deadly force is also usually permissible when a reasonable person would believe it to be necessary to protect against unlawful deadly force (force likely to cause death or great bodily harm) being used against an innocent.  (State law may limit the defense of others defense to persons to whom one owes a duty of protection or to one who bears a certain blood relationship).  It is my opinion that a home invader who refuses to promptly leave upon discovery, especially upon an invitation at gunpoint to do so, is an imminent lethal threat whether armed or not.

The is no duty to retreat within the premises of one’s “castle” nor to undertake an attempt to escape to the outdoors, before otherwise lawful deadly force may be employed.   Contrary to widely-held belief, unless case law has imposed an offbeat requirement, neither a breach nor actual entry into the castle need occur to justify the use of deadly force.  Nor is there a requirement the home invader be found inside the castle threshold to support a defense of justification or self defense.

Some states have adopted a so-called Stand Your Ground provision or expanded the “no retreat” castle rule beyond the defender’s permanent residence.   The perimeters of the “castle” may include a fenced yard, carport, unattached or attached garage or other structure, lawn, patio, porch.  Statute or case law may also expand the “castle” definition to include business/place of employment premises, a hotel/motel room, mobile home, or vehicle.  Several are fashioned after Florida law, and may include Florida’s provision which supplies presumptions that a home invader who has made unlawful entry by force is presumed to intend an unlawful act of force or violence, and the defender’s fear of imminent peril of death or great bodily harm is reasonable.

A frequent question asked about castle defense is whether there is a duty to retreat and/or cease the use of force once the malefactor is downed/wounded or for some other reason no longer appears threatening.  Many believe that is the prudent course of action regardless of what the law allows.  State statute or case law on use of force may supply the legal answer if there is a reasonableness or actual necessity requirement on the use of force.  (This would be analogous to the constitutional prohibition of “excessive force” by LEO’s).  A consideration which muddies the issue is whether the castle defender has the ability to take and hold one or more potentially non-compliant criminals at gunpoint.  (A very dangerous undertaking for a single armed defender).  An Oklahoma case involving a pharmacy robbery comes to mind on this issue (here).  The defensive use of deadly force (which resulted in conviction of the defender) was videotaped (here).

Do check your state’s statutes on use of deadly force with focus on locations where retreat is not required and whether the law provides presumptions in favor of a defender.   Also see how the law is explained to juries in your state’s pattern criminal jury instructions when self defense or justification for defensive use of deadly force is asserted.  One internet place to find links to state self defense laws (in force and pending legislation) is here.  If you wish to purchase a book devoted to the law of self defense, consider attorney Andrew Branca’s widely-respected work (here).

“It’s an ugly world out there” is a common saying.  Sometimes ugly comes inside.  If it does, you will not have to divert from the warrior mindset and sound defensive tactics.  Thankfully, the law is on your side if you are forced to employ deadly force to defend your castle.

 

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About Steven Harris

Steve Harris is an experienced attorney (member of Florida Bar, 1979) who has represented federal agents and local LEOs in duty related matters. He has written and lectured about officer involved shootings, self-defense, and use of force law, including "Stand Your Ground." Steve has been a seasoned and active competitive handgun shooter for over 20 years.

13 thoughts on ““CASTLE” DEFENSE: WHAT CAN–MAY–SHOULD–MUST YOU DO

  1. Justifiable shoot to head , picks up another pistol shoots him 5 more times. That would be excessive use of force. Prison awaits ! I’m on his side , BUT ! you can’t shoot him if he’s down and no longer a threat. Hold him at gun point till L.E.O arrives. Damn Shame , I’m sure his state of mind i.e adrenline ect , may have been a factor.

  2. Hey Steve,

    Nice write up, and thanks for the mention of “The Law of Self Defense, 2nd Edition.” In appreciation, I’ve put in a place a coupon good for $10 off the usual price of $39.95, and free shipping, specifically for this site. Folks who are interested should type in the discount code “losd2-msw” (without the quotes) at checkout at http://www.lawofselfdefense.com. This coupon is good for only 10 uses, so anyone interested should act promptly. (NOTE: This coupon will work ONLY at my blog, it will not be recognized by Amazon, Barnes & Noble, or any other re-seller).

    More substantively, regardless of whether a person uses my book or some other resource, it is essential that they familiarize themselves with the scope and application of the Castle Doctrine in whatever state they may happen to find themselves. There is a LOT of state-to-state variance in the Castle Doctrine. You, Steve, mentioned the variability in scope in the context of curtilage, and whether it may also apply to places of work and occupied vehicles, for example, and those are important variables people need to be aware of.

    People should also be aware there is considerable variance among the states in terms of when you get to claim Castle Doctrine privileges even within your own home. In many states, for example, you DO have to retreat EVEN in your Castle, if the person attacking you is ALSO a lawful resident or even just lawfully present (e.g., a spouse, an apartment-mate, an invited guest or service person, whether invited by you or another resident). Also, in some states if you are a guest in someone else’s Castle you can claim Castle Doctrine privileges even though it’s not YOUR Castle. IN other states you cannot.

    If anyone reading this doesn’t know whether that’s the law in their state–well, I urge them to find out, pronto.

    Also, in general a person who is the aggressor in a conflict may not claim Castle Doctrine privileges. I know, we’re the good guys, we’re never the aggressors. The brutal truth, however, is not whether a person is REALLY the aggressor, but whether a prosecutor can build from the facts of the case a compelling narrative (a story for the jury) that the person was the aggressor (or, at the very least, a co-aggressor). In some states (Virginia comes to mind) one must be COMPLETELY free of any fault in the confrontation, however minor, to be sure of avoiding becoming labelled an aggressor. So, folks should conduct themselves accordingly, and knowingly, in compliance with their state’s laws (as well as whatever other state they may find themselves in) to ensure that they don’t open themselves up to such a (mis-)characterization. (Often this issue raises its head when one finds it desirable to evict an invited guest–if physical force is required by the homeowner, does that constitute the “initiation of aggression” for purposes of the law of self-defense?)

    Well, there’s a lot more that could be said on that topic, but I’d better stop there or my comment is going to end up as long as Steve’s excellent post. My apologies, I have a tendency to run off at the keyboard. Again, great job, Steve, and thanks again for the book mention.

    –Andrew, @LawSelfDefense

    • Andrew — thanks for the MSW discount code and your expanded commentary. You saved me from writing a second piece on the doctrine and its nuances in situations other than criminal home invasion.

      • Ouch, Steve, sorry, I didn’t mean to cut the legs out from under a future post. Just wrote what came to mind. Feel free to delete my comment, if that works best for the blog. Keep the discount for the book (or not) as you think best.

        It’s great that the private armed-citizen community is finally getting actual law-based advice on the use of defensive force from so many knowledgeable sources, instead of having to rely on their mall ninja brother-in-law or the retired constable down the street.

        Every time I see a well-founded post like yours I like to think it’s keeping yet another well-intentioned, law-abiding armed citizen from unnecessarily making some mistake that ends up with them in the klink. 🙂

        –Andrew, @LawSelfDefense

        • Leaving as it is. You did good. Wasn’t going to write a follow up for couple of months. You really did me a solid. Let me know if you are shooting in Florida.

          • Cool. I’m in Florida in one role or another several times a year, I’ll ping you next time I know I’ll be in the Sunshine State, for sure.

            –Andrew, @LawSelfDefense

  3. This is good stuff. It drives me crazy (short trip, I know) to read some of the internet legal wizards who say things that are … iffy, at best. This is short, simple, and lays out the broad outline of the legal issues, including that fact the actual standards may vary from state to state.

    One position I really push is the idea of a layered system to reduce the likelihood of a successful entry. We have 6′ chain link fence with locked gates around the property for a variety of reasons, one of which is security. I plan to add closed circuit monitoring. We have lights over the more likely areas of entry, running on timers that I adjust regularly.

    We also have dogs. I admit we like dogs better than almost any human. A medium large, alert, dog with corresponding bark, is a discouragement to some, and a warning to us. I can argue quite logically that anyone who keeps coming after hearing the dogs bark is more likely a threat. They are also a great alarm system for us. If you have been awakened by the experience of your Rottweiler pillow alerting, you know what it means to be instantly awake. One of our current dogs is a real pain in the tush, due his genetic intolerance of strangers. However, he loves us, and is great company, not to mention comforting because he will protect us at any cost.

    Another HUGE point: money. We spent about $11K on improvements to our security after a burglary a couple years ago while we were gone for the weekend. This is a significant amount of money, but it is a lot cheaper than litigation. If you haven’t experienced the fun of being targeted by someone or an entity for a BS allegation, you can’t believe it. My low guess for a good defense is at least 500 hours, more likely 1000, at $250/hour plus costs. Anything you can do to prevent the fight by making that unpalatable to the assailant is worth it. Our system is not perfect, but if it causes someone to go elsewhere, it’s good enough.

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