Castle Doctrine, Dan Rather Reports
- Thread starter bbqbob51
- Start date
- Status
Bartholomew Roberts
Moderator
The "Castle Doctrine" legislation tends to vary from state to state depending on the laws of the individual state. For example, the notion that someone breaking into your home was enough to create a reasonable, immediate fear of death or serious injury predates the "Castle Doctrine" law in Texas.
No law, including the various Castle Doctrine laws, does what you describe above. Most state laws create a rebuttable presumption that someone breaking into your house is enough to justify a reasonable fear of death or serious injury. It does not say that you can't be second guessed. All it says is that in the absence of other facts, we will presume that the act of breaking into your house alone was enough to justify a fear of death or serious injury (and therefore justify the use of lethal force in self-defense).
However, the presumption is rebuttable - meaning that a prosecutor can offer evidence to show that you were not in immediate, reasonable fear of death or serious injury if there is such evidence.
I personally never want to use any weapon on another human being. I will go to almost any extreme to avoid doing so. Unless I am defending imminent death to myself or another I will not do so.
Some people look to be looking for an excuse to justify smoking someone. I guess I'll never understand that.
Some people look to be looking for an excuse to justify smoking someone. I guess I'll never understand that.
johnwilliamson062
Moderator
I entirely disagree with this assertion. Insurance and right to defend property with lethal force are almost certainly intertwined in my mind. I am not talking about a TV. If someone steals your TV and you shoot them there is no moral excuse even if it is legal. I am talking about things that will affect your long ability to support yourself and family. If someone shoots an arsonist attempting to burn down their uninsured house , I have a hard time judging them. Same goes for a vehicle that takes them to work. I am not talking about someone who is rich and can easily replace these items, but the working poor who could be sent into a downward welfair spiral by the loss.
Maybe some of you have hundreds of thousands of dollars in liquid assets and are over insured so can't understand what I am saying, think about those who do not and the hardship a stolen car represents for them.
green-grizzly
New member
OuTcAsT said:
Thanks for your comment. You must have great insight on what "Castle laws mean" and "how they work." I would appreciate it if you could offer your explanation on both subjects. You obviously have knowledge about this issue, but all you offer in your post, I am sure inadvertently, is snide criticism. Thanks.
Last edited:
That's the law in CA.
As a practical matter, it might be hard for a prosecutor to come up with such evidence, and it might be harder to persuade a jury to overcome the presumption, but it can be done.
The way some posters on TFL talk, the evidence might just come from the mouth of the homeowner!
By the way, there is a critical difference between shooting an intruder in your home and shooting someone outside the home just because he stole something of yours or is about to. Let's not conflate the two.
Sir, It was not meant to be "snide" I can assure you. I realize you are new here, and perhaps new to firearms, and self defense laws. If this is not the case, then accept my apologies, but I know there is an influx of "new" gun owners, and I cringe at the thought that some folks just don't know.
Your interpretation of the castle laws is, at best, simplistic.
The laws are not meant to be a "I get to shoot and nobody gets to second-guess me" defense. It just does not work that way. When you shoot someone anywhere, whether it be inside your home, or outside, your actions will be second, third, and fourth guessed by LE, the DA, the media, etc. These laws, in no way, limit your culpability should the evidence prove that you were outside the law. Again, I suggest that you spend whatever monies you can to consult with a legal adviser in your area, he might well be able to help you understand your rights, and liabilities. I mean this in the most sincere way.
Section E2 in enlightening. Looks like I can steal a Humvee, Buffalo or Cougar in a combat zone like Iraq without being shot...but a TV will get me wasted.
If Uncle Sam thinks killing and insurgent over a Humvee is not a good shoot then I'm thinking that the TV theory might not hold so much water...
http://usmilitary.about.com/library/milinfo/dodreg/bldodreg5210-56.htm
If Uncle Sam thinks killing and insurgent over a Humvee is not a good shoot then I'm thinking that the TV theory might not hold so much water...
http://usmilitary.about.com/library/milinfo/dodreg/bldodreg5210-56.htm
green-grizzly
New member
OuTcAsT:
If you could provide some useful information instead of advising to get more information I would appreciate it.
I agree my original explanation was a little simplistic, but I'd still like your expert opinion on why it is incorrect.
As I stated, under the common law you can use force in self-defense when you reasonably believed that such force was necessary to protect yourself from the imminent use of unlawful force by another person. A person may not use deadly physical force unless that person is in reasonable fear of serious physical injury or death. Self defense was an affirmative defense under the common law, meaning that the defendant had to prove that his acts were lawful by a preponderance of the evidence; the government did not have to prove that the defendant acted unlawfully beyond a reasonable doubt. By placing the burden on the defendant, it was up to the person acting in self defense to prove their use of lethal force was justified.
In your view is this correct? It is not clear from you post what you claim is not correct.
Of course not all states follow the common law anymore. For example, some states impose a duty to retreat (except in the home).
What the Castle Doctrine does, as I understand it, is that it turns the common law presumptions on their head in the home. Instead of the defendant having to prove that he acted lawfully when using lethal force, the defendant's actions are now presumed to be lawful when the bad guy entered the home unlawfully. A presumption can be rebutted, but the burden of proof is now on the government.
Here is Florida's Castle Law, which I believe was the first in the nation:
Here is my state's law:
These laws are fairly typical, although some are weaker.
Basically, when someone unlawfully enters a home the presumption is now that the use of lethal force was lawful. Intead of the defendant having to prove that lethal force was justified, the government now has to prove that it was not.
Do you view this as incorrect? Again, I can't tell from your posts what you think is wrong.
If I have something wrong here, please identify what it is.
If you could provide some useful information instead of advising to get more information I would appreciate it.
I agree my original explanation was a little simplistic, but I'd still like your expert opinion on why it is incorrect.
As I stated, under the common law you can use force in self-defense when you reasonably believed that such force was necessary to protect yourself from the imminent use of unlawful force by another person. A person may not use deadly physical force unless that person is in reasonable fear of serious physical injury or death. Self defense was an affirmative defense under the common law, meaning that the defendant had to prove that his acts were lawful by a preponderance of the evidence; the government did not have to prove that the defendant acted unlawfully beyond a reasonable doubt. By placing the burden on the defendant, it was up to the person acting in self defense to prove their use of lethal force was justified.
In your view is this correct? It is not clear from you post what you claim is not correct.
Of course not all states follow the common law anymore. For example, some states impose a duty to retreat (except in the home).
What the Castle Doctrine does, as I understand it, is that it turns the common law presumptions on their head in the home. Instead of the defendant having to prove that he acted lawfully when using lethal force, the defendant's actions are now presumed to be lawful when the bad guy entered the home unlawfully. A presumption can be rebutted, but the burden of proof is now on the government.
Here is Florida's Castle Law, which I believe was the first in the nation:
Here is my state's law:
These laws are fairly typical, although some are weaker.
Basically, when someone unlawfully enters a home the presumption is now that the use of lethal force was lawful. Intead of the defendant having to prove that lethal force was justified, the government now has to prove that it was not.
Do you view this as incorrect? Again, I can't tell from your posts what you think is wrong.
If I have something wrong here, please identify what it is.
Green-Griz...
You seem to have a decent grasp of it. In any situation where a homicide¹ occurs an investigation by police & DA staff will attempt to determine if it was done lawfully or not.
It was this statement that raised some of the ruckus;
Police will look for ways to determine if there was not any justification. An unarmed dead man with no prior record, no signs of forced entry and no signs of any altercation will raise a lot of questions.³
This does not mean that the DA cannot try to indict or bring charges if there are too many unanswered questions. But the defender still has a 5th Amendment right to remain silent and let his attorney defend him.
The first thing the DA has to do is show there is doubt that the lethal force was necessary - such as the person being known or some other factors (e.g. shot in the back from far away, you're a hulking 6'6" ex-collegiate linebacker and the deceased was a skinny 5'3" teen, or the person was invited into the home). If he can show no unlawful entry or that no credible threat would have existed, then he can still bring about a conviction.
¹ Homicide is the killing of a human being, distinct from Murder.
² It removes the "affirmative defense" requirement for invoking self-defense. The shooter does not need to prove anything.
³ Not meant to imply someone with a criminal record would automatically be considered "fair game" or other silly nonsense.
You seem to have a decent grasp of it. In any situation where a homicide¹ occurs an investigation by police & DA staff will attempt to determine if it was done lawfully or not.
It was this statement that raised some of the ruckus;
What the Castle Doctrine does is specify that the burden of proof is on the government when a person defends the place they are residing in from an unlawful intruder. The resident does not need to justify their use of lethal force within their own home to claim lawful self-defense.²
Police will look for ways to determine if there was not any justification. An unarmed dead man with no prior record, no signs of forced entry and no signs of any altercation will raise a lot of questions.³
This does not mean that the DA cannot try to indict or bring charges if there are too many unanswered questions. But the defender still has a 5th Amendment right to remain silent and let his attorney defend him.
The first thing the DA has to do is show there is doubt that the lethal force was necessary - such as the person being known or some other factors (e.g. shot in the back from far away, you're a hulking 6'6" ex-collegiate linebacker and the deceased was a skinny 5'3" teen, or the person was invited into the home). If he can show no unlawful entry or that no credible threat would have existed, then he can still bring about a conviction.
¹ Homicide is the killing of a human being, distinct from Murder.
² It removes the "affirmative defense" requirement for invoking self-defense. The shooter does not need to prove anything.
³ Not meant to imply someone with a criminal record would automatically be considered "fair game" or other silly nonsense.
There ya go, Bill nailed it (thanks) before I got back to the topic. You seem to have a better handle on it than your first post indicated. Hopefully you can see where the confusion came from ?
While the Castle laws go a long way toward giving the homeowner the benefit of the doubt, I just don't want anyone to go away thinking that it is a "license to kill" If it were, there might be a "Mother-in-Law" shortage really soon
Again, I am no "expert" , that is why I advise that you do what I did, find a Lawyer in your area that deals with these types of cases, and discuss these laws with him, the education is well worth the money. And, keep his card in case you ever have to test those laws.
Last edited:
skydiver3346
New member
Castle Doctrine:
As hard core as I am, I feel that chasing someone down and killing him for stealing some beer is surely not justified. Had the thief threatened the store keeper's life (while in the store and confronting him), that is another matter entirely. But chasing him down as he is leaving with the stolen beer is NOT justified in my opinion.
Besides, I always thought that the Castle Doctrine applied to your home and/or your property, etc. Didn't know it applied to a business or out in public.
As hard core as I am, I feel that chasing someone down and killing him for stealing some beer is surely not justified. Had the thief threatened the store keeper's life (while in the store and confronting him), that is another matter entirely. But chasing him down as he is leaving with the stolen beer is NOT justified in my opinion.
Besides, I always thought that the Castle Doctrine applied to your home and/or your property, etc. Didn't know it applied to a business or out in public.freakshow10mm
Moderator
The English common law was home only. Modern versions extend the protection to a vehicle as well as public places where you have a legal right to be, such as walking down the sidewalk. A place of business is considered as intimate and safe as your own home.
That will vary state by state. Don't take what is posted here for one state to apply to another. BTW laws change from time to time; you might not get the memo but are responsible for knowing anyway.
And sometimes posters on TFL get it wrong.
So all this analysis is for discussion purposes only.
You want legal advice? Hire a lawyer.
In all of this discussion, I note that a lot of information may be true in one state, but not in another, due to differences in state law. In Texas, by law, a ruling of justifiable self-defence in a shooting means that the family of the crook who was shot cannot get a judgement. That is current Texas Law. Before about 2005 or 2007, the law was different. Note, however, that a an innocent bystander who was accidentally injured by a defensive shot can sue and collect. On another issue, in Texas there are a lot of circumstances beyond self defense that make a shooting justifiable, including burglery at night and protection of property. But, a lot of DA's will do everything that they can to find something to prosecute in that case. It depends on the county.
But, as I said before, other states have different laws, and even Castle Doctrine laws differ from one state to another.
But, as I said before, other states have different laws, and even Castle Doctrine laws differ from one state to another.
Good point. I believe the life of the criminal is, perhaps, more valuable than my property (unless it's vital to my survival).
However, I question the notion that his life is worth more than the lives of Americans who shed their blood to preserve our liberties---which include not being required to surrender our property.
I wonder if such a government requirement to "give it up to Bubba" might amount to tyranny, as well as spitting on the graves of many Americans whose sacrafices are what preserved those libereties.
The hard work I spent earning the money to purchase the property may have lesser value, but isn't something to be dismissed by political gas bags (or yes, even fellow citizens) who've always considered the criminal's rights as superceding mine.
I feel better now.
Okay... now I am confused by your opinion.Skydiver3346 said:
I'll agree that chasing someone down and killing him over a "beer run" (value: about $8-$15) isn't justified.
But you say if the thief had threatened the clerk's life inside the store that's different. Yes, it would be called self-defense in that case.
But then you go on to say
Does that mean you advocate just letting the thief go? That the shopkeeper/clerk should not attempt to apprehend a thief once he gets outside the doors?
Or maybe you give up the pursuit once he hits the public sidewalk?
If an armed store clerk chases the thief threescore yards down the street and the thief turns and pulls a knife, would you say that clerk could invoke self-defense for shooting the thief?
- Status