Castle Doctrine Under Attack in Montana

[Bartholomew Roberts]

The BBC has done a nice anti-gun propaganda piece that highlights one of the recent targets of gun control: self-defense laws.
http://www.bbc.com/news/world-us-canada-27243115

Summary: Recently in Montana, a homeowner who had been burglarized twice, shot and killed a young foreign exchange student who entered his separate, unattached garage around midnight. The homeowner had been waiting and watching via camera/motion detector.

In much the same way that "Stand Your Ground" laws were demonized after the Zimmerman shooting (despite the fact that Zimmerman never requested a "SYG" hearing), they are now targeting an ancient custom of Anglo-Saxon law that goes back to at least the 1600s for elimination.

Here is how the BBC describes the 2009 amendment to Montana's Castle Doctrine law:

Montana's so-called "castle doctrine" law was amended in 2009 to allow deadly force if a homeowner "reasonably believes" an intruder is trying to harm him or her....The legislation was backed by the US' largest gun lobby, the National Rifle Association (NRA).

There were two parts of this that horrified me. The first part is by the BBC's own description, the law says that if a homeowner reasonably believes* that an intruder IN HIS OWN HOME is trying to harm him, they can use lethal force. And they OBJECT to this. Think about that for a second. They aren't saying "O, you have to make sure it isn't a drunk teenager first." They are saying "You have no right to use lethal force against an intruder in your own home who an objectively reasonable person believes is trying to harm you."

*"reasonably believes" is a legal term of art meaning that an objectively reasonable person (or in this case 12 of them) would agree that there was an actual threat. It isn't enough that the homeowner genuinely believes there was a threat, that belief must also be reasonable.

The second part of this that horrified me is that the concept of Castle Doctrine goes back centuries. It predates the United States. The concept is so old, that William Blackstone quotes Marcus Tulius Cicero in Latin in describing the concept in his 1765 book on law. And yet from reading the BBC article, you might get the impression that Castle Doctrine is an invention of the NRA that just was passed into law in 2009.

Even more surprising was that at least some Montana legislators were willing to sign on to revoke the 2009 amendment:

State Representative Ellie Hill told the Missoulian newspaper she has proposed legislation to repeal the 2009 amendments to the law.

"What the castle doctrine has done in this country is it has created a culture of gun violence and vigilante justice," Ms Hill, a Democrat who represents Missoula, said.

The recent attacks on Stand Your Ground laws surprised me some, especially considering it is such a fine point of law that even few gun owners understand it well; but there was at least some historical (albeit misapplied) basis for the idea of a duty to retreat.

Castle Doctrine on the other hand is literally an ancient doctrine. We can find parts of the concept as far back as ancient Rome and it was a solid part of English law as far back as the 1600s. And now we are seeing shootings (likely illegal ones at that) being used to push an attack on an ancient civil right of the Western world. And not even a controversial one at that - once again, the idea being stated by Ms. Hill is that it is wrong for a homeowner, in his own home, confronting a person he reasonably believes intends to harm him, to use lethal force.

I think we are likely to see more of this in the future which is why it is important we do all we can to nip these things in the bud with politicians who would remove these ancient rights.

 

[Frank Ettin]

...considering it is such a fine point of law that even few gun owners understand it well...

I think that is part of the problem. We see on this and other gun boards that [I think] too many gun owners misunderstand the Castle Doctrine and seem to [mistakenly] believe it creates some sort of "free fire" zone.

But in fact, the Castle Doctrine as applied in court, is a relatively small, technical matter. It really doesn't turn a "bad shoot" into a "good shoot." It merely eases the burden on the defender of producing evidence to support his claim of justification.

 

[Bartholomew Roberts]

Exactly. Neither Castle Doctrine nor Stand Your Ground give you any new rights. They just ease certain evidentiary burdens.

One other aspect of this that really hit home with me is that now that these laws are being politicized and targeted, we all need to be really aware that even a straightforward, relatively simple case of self-defense can immediately become a national media issue - complete with all the libel concerns, security issues, and topsy-turvy life upside down changes.

If someone at Bloomberg's HQ thinks your local shooting case will make good PR to weaken Castle Doctrine/SYG laws, you could see your out-of-context irreverent Internet comments pasted into a quick local news piece about the grieving family of the dead boy, who was just about to turn his life around - followed closely by the comments of your neighbor who doesn't like your crepe myrtles and relating the off-color statements you made at the local BBQ.

 

[44 AMP]

I'm not certain, but I believe it was an Englishman who coined the phrase.

"Die if you must, but never fight back."

The problem with Castle Doctrine/stand your ground type laws is, partly that some people on our side of the issue think they are "hunting licenses/free fire zones", but mostly that people on the other side of the issue are telling EVERYONE that they ARE.

And that the uninformed and under informed believe them.

 

[Bartholomew Roberts]

Yes, it is kind of frustrating that people who claim to be opposed to gun violence are fraudulently telling the press and public that you can just kill anyone for the flimsiest of reasons and then, when the public believes what it reads in the press and does it, they use that as an example to try and change the law - even though the law never allowed what they claimed.

 

[Aguila Blanca]

It was a discussion about this case on another forum that lead me to start looking at what the castle doctrine laws actually say in other states, and I was surprised to find that it is included in the laws of only 27 states. I had thought it was much more universal than that. It may have more universal application/acceptance based on history and case law, but the castle law doctrine is apparently not as widely adopted as I had thought.

And some of the laws I found are not as all encompassing as I had thought. In general, it HAD been my understanding that within one's own "castle" there was a blanket presumption that any intruder is there with intent to do the occupants harm, and that the defender was thus virtually always allowed to use lethal force. Looking at the castle doctrine laws of a few states, however, I discovered that they (some of them) apply only in the case of a forcible entry, and only if the defender "reasonably" believes that the use of deadly force is necessary to prevent or to terminate the commission of a forcible felony.

And I have to admit that I am unhappy at that. I do not consider myself to be a trigger-happy hothead, but I do think that people should be entitled to absolute security in their homes. I don't think there should be any reservations or restrictions whatsoever on a person's ability (and permission) to defend his/her home and family against intrusion, using whatever means and methods the defender has available.

A couple of examples:

Florida:

776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.—

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

- - - - - - - - -

Pennsylvania:

18 PA CS §505 (b) (2.1) Except as otherwise provided in paragraph (2.2), an actor is presumed to have a reasonable belief that deadly force is immediately necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat if both of the following conditions exist:

(i) The person against whom the force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered and is present within, a dwelling, residence or occupied vehicle; or the person against whom the force is used is or is attempting to unlawfully and forcefully remove another against that other's will from the dwelling, residence or occupied vehicle.

(ii) The actor knows or has reason to believe that the unlawful and forceful entry or act is occurring or has occurred.

- - - - - - - - - - -

Wyoming:

TITLE 6 - CRIMES AND OFFENSES
CHAPTER 2 - OFFENSES AGAINST THE PERSON
6-2-602. Use of force in self defense.

(a) A person is presumed to have held a reasonable fear of imminent peril of death or serious bodily injury to himself or another when using defensive force that is intended or likely to cause death or serious bodily injury to another if:

(i) The intruder against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, another's home or habitation or, if that intruder had removed or was attempting to remove another against his will from his home or habitation; and

(ii) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring.

(b) The presumption set forth in subsection (a) of this section does not apply if:

(i) The person against whom the defensive force is used has a right to be in or is a lawful resident of the home or habitation, such as an owner, lessee or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;

(ii) The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(iii) The person against whom the defensive force is used is a peace officer who enters or attempts to enter another's home or habitation in the performance of his official duties.

(c) A person who unlawfully and by force enters or attempts to enter another's home or habitation is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(d) As used in this section:

(i) "Habitation" means any structure which is designed or adapted for overnight accommodation, including, but not limited to, buildings, modular units, trailers, campers and tents;

(ii) "Home" means any occupied residential dwelling place.

The way these laws are written means that the use of deadly force is NOT allowed, even if the defender "reasonably" believes it is, unless the defender first KNOWS that the intruder entered not only illegally but also "forcibly." So what if you forget to lock your patio door some night? An intruder would not need to use force to enter unlawfully, and thus these so-called "castle doctrine" laws would not allow the use of lethal force to protect you or your family.

I'm sorry, but I don't think that's right.

 

[KyJim]

I am not aware of any states which actually require one to retreat from one's own home before resorting to deadly force to defend one's self. This is the core principle of the Castle Doctrine. I'm not saying there isn't one, just that I don't know of one. The precise details of the Castle Doctrine do vary somewhat among the states.

A lot of the popular press and the public at large confuse other aspects of legislation supported by the NRA which bundled the codification of the Castle Doctrine with other provisions -- the "stand your ground" concept when outside your home, the provision for criminal and civil immunity in appropriate self-defense cases, etc. That's what the BBC has done here, confused a centuries old common law tradition with other aspects of self-defense law.

 

[Frank Ettin]

...I do not consider myself to be a trigger-happy hothead, but I do think that people should be entitled to absolute security in their homes. I don't think there should be any reservations or restrictions whatsoever on a person's ability (and permission) to defend his/her home and family against intrusion, using whatever means and methods the defender has available....

On the other hand, we need to understand that there are people, including many influential people, who specifically oppose, on principle, the use of force in self defense.

See, for example, Armed by Gary Kleck and Don Kates (Prometheus Books, 2001). On pages 116 - 121, they discuss various liberal, moral objections to the notion that one may be justified in defending himself.

Feminist Betty Friedan is cited as denouncing the trend of women to arm themselves for self defense as, "...a horrifying, obscene perversion of feminism...." Her ridiculous notion that , "...lethal violence even in self defense only engenders more violence and that gun control should override any personal need for safety...." is probably widely held in some circles. Indeed, according to Kleck and Kates, Mario Cuomo avowed that Bernie Goetz was morally wrong in shooting even if it was clearly necessary to resist felonious attack.

Kleck and Kates also report that an article was published by the Board of Church and Society of the United Methodist Church condemning defensive gun ownership. In the article, Rev. Allen Brockway, editor of the board's magazine, advised women that it was their Christian duty to submit to rape rather than do anything that might imperil the attacker's life.

Kleck and Kates also note that the Presbyterian Church (U. S. A.) has taken a strict anti-self defense view. Rev. Kathy Young testified as a representative of that group before a Congressional Panel in 1972 in support of handgun control that the Presbyterian Church (U. S. A.) opposes the killing of anyone, anywhere for any reason (including, in the context of the testimony, self defense)

While we don't agree, such views have some following. Note, for example that self defense is not considered in many countries to be a good reason to own a gun. Indeed in Great Britain, the natural right of self defense has been significantly curtailed by law. For an excellent study of the erosion of gun and self defense rights in Great Britain see Guns and Violence, the English Experience by Joyce Lee Malcolm (Harvard University Press, 2002).

The point of the foregoing is that the universal acceptance of the ethics of self defense can not be taken for granted.

 

[Bartholomew Roberts]

Much of Castle Doctrine is based on common law - that is precedent set by previous court cases. In many states (it looks like 27 based on Aguila Blanca's research), they have codified a lot of that precedent into statute; but in some states you still have to know the court cases and precedent in order to understand how Castle Doctrine will be applied to you. To use just one example, the Castle Doctrine described by Blackstone in 1765 certainly doesn't exist in England today - and that is exactly what these groups are aiming at. They want to redefine Castle Doctrine until it is meaningless.


I might add that the Florida version of Castle Doctrine looks positively amazing compared to the 2009 amended Montana version that the BBC is complaining about.

45-3-103. Use of force in defense of occupied structure.
(1) A person is justified in the use of force or threat to use force against another when and to the extent that the person reasonably believes that the use of force is necessary to prevent or terminate the other person's unlawful entry into or attack upon an occupied structure.
(2) A person justified in the use of force pursuant to subsection (1) is justified in the use of force likely to cause death or serious bodily harm only if:
(a) the entry is made or attempted and the person reasonably believes that the force is necessary to prevent an assault upon the person or another then in the occupied structure; or
(b) the person reasonably believes that the force is necessary to prevent the commission of a forcible felony in the occupied structure.

 

[Frank Ettin]

Much of Castle Doctrine is based on common law - that is precedent set by previous court cases...

California has had a Castle Doctrine for years (Penal Code 198.5 enacted in 1984):

Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

As used in this section, great bodily injury means a significant or substantial physical injury.

And there is no duty to retreat in California, inside the home or away from home:

...We even go one step further -- the law in California says that a person who is attacked may even pursue his assailant if necessary. CALJIC 5.50 reads:

A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. In the exercise of his right of self-defense a person may stand his ground and defend himself by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge; and a person may pursue his assailant until he has secured himself from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.​

...

 

[Aguila Blanca]

Frank, using the California law as an example:

If I as a homeowner am awakened at zero-dark-thirty by something going bump in the night, and I elect to investigate with a gun in hand -- suppose I encounter an intruder (or two or three) in my living room, but suppose they entered through a patio door that I didn't lock. For the sake of argument, let's further assume that I (foolishly) never lock that patio door, so we can't rely on the argument that I thought it was locked. The law allows me to use deadly force to defend myself if there has been an unlawful AND forcible entry. According to the CA law, then, in the situation I describe I would NOT be legally entitled to use deadly force against the intruder(s), in my own house, because the entry was not forcible.

I just don't understand how that's "right."

 

[JimDandy]

What exactly is "forcible entry"

 

[Frank Ettin]

AB, a few things:

1. I'd have to have a look at the cases to be sure (and I'm probably not going to do that soon), but as I recall, "forcibly" doesn't necessarily mean violent (i. e., breaking things). It could include any exertion of effort -- like opening a closed but unlocked door.
   
   
2. You don't have to have actual knowledge of forcible unlawful entry. You only need "reason to believe" it had occurred.
   
   
3. The unlawful and forceful entry is merely a condition for the presumption that one was reasonably in "fear of imminent peril of death or great bodily injury." You can still present evidence that you actually were in reasonable "fear of imminent peril of death or great bodily injury."
   
   
4. As noted earlier, a Castle Doctrine is really only a narrow, technical matter. The Castle Doctrine gives one the benefit of that presumption. Without the Castle Doctrine, one would still need to show reasonable fear of imminent peril of death or great bodily injury. That's really what the Castle Doctrine is about. At Common Law one has never been under a duty to retreat in his home.
   
   
5. And in any case, as we've discussed in the past, our society frowns on one person intentionally hurting or killing another; and therefore our laws allow violence to be justified in only certain very narrow, and exceptional circumstances.

 

[tipoc]

If I as a homeowner am awakened at zero-dark-thirty by something going bump in the night, and I elect to investigate with a gun in hand -- suppose I encounter an intruder (or two or three) in my living room, but suppose they entered through a patio door that I didn't lock. For the sake of argument, let's further assume that I (foolishly) never lock that patio door, so we can't rely on the argument that I thought it was locked. The law allows me to use deadly force to defend myself if there has been an unlawful AND forcible entry. According to the CA law, then, in the situation I describe I would NOT be legally entitled to use deadly force against the intruder(s), in my own house, because the entry was not forcible.

I just don't understand how that's "right."

Now look at the section of California law again...

Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

As used in this section, great bodily injury means a significant or substantial physical injury.

The question is not that you left the window or door unlocked but that they entered illegally and you believed they had reason to do you or others harm. You are not required to apologize for leaving a window or door unlocked and an open window, common here in the warm weather, is not an invitation to crime.

In a case where the window or door is unlocked the emphasis falls on the illegal section. The rape, burglary, attack, etc. is seen as forcible.

The 1984 statute backs up law that predates the entry of California to the union.

As far as laws go, and I'm one in the camp that fewer laws are better, both Ca. laws are fairly good ones. They do not try to spell out all possibilities and leave many things open to investigation and a trial if need be, or dismissal of the charges if any, after an investigation.

tipoc

 

[Frank Ettin]

...In a case where the window or door is unlocked the emphasis falls on the illegal section. The rape, burglary, attack, etc. is seen as forcible....

And do you have some case law to back that up?

The plain language of the statute refers to an entry onto the premises which is both unlawful and forcible. So the issue become what level of force is necessary to be considered "forcible." I suggest that it may well be very little.

Possible examples of unlawful entry which might not be forcible could include securing entry by fraud (posing as a gas company employee claiming to be looking for a leak) or someone who having been invited in then remains [unlawfully as a trespasser] after having been ordered out.

 

[tipoc]

And do you have some case law to back that up?

Not a shred. I don't do lawyering.

I do have experience.

Does the presence of an unlocked window mean no forcible entry into a home occurred in the course of a burglary? The unlocked window, or door is incidental. No permission was given to enter the home.

If a shop is burgled after hours and the owner forgot to activate the alarm does that mean no charge of burglary is valid? The fact that the alarm was not activated does not constitute an invitation to enter.

In the case of sexual assault or rape how much "force" is needed or is the threat of the same enough? If the window was unlocked?

The "force" involved may be minor in the instance of an open window in fact none. But an illegal entry was made.

Not long ago here a man entered the home near to me through an open bedroom window and kidnapped a small child. California law allows for shooting in this instance even though no window was broken.

If they entered through an open patio door did they scale a fence to enter the yard? Or just walk into the yard?

No, in all cases trespass was made.

To focus on the "level of force" involved is to attempt to split the hairs on an eggshell. The law does not mean what you believe it to.

Folks have been acquitted where they have shot others who were invited into their homes but became violent. No "force" involved in the entering.

tipoc

 

[Oruglock]

I'm not certain, but I believe it was an Englishman who coined the phrase.

"Die if you must, but never fight back."

It was a Brazilian, Candido Rondon, and the correct quote is:

"Die of you must, but never kill"

Two minutes & Google gets you there.

 

[Aguila Blanca]

You cheated, and only emphasized one part of a multiple construction.

Now look at the section of California law again...

Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

As used in this section, great bodily injury means a significant or substantial physical injury.

The question is not that you left the window or door unlocked but that they entered illegally and you believed they had reason to do you or others harm. You are not required to apologize for leaving a window or door unlocked and an open window, common here in the warm weather, is not an invitation to crime.

The law says you have to know or have reason to believe that the entry was unlawful AND that the entry was forcible.

I happen to agree with you that leaving a window open for ventilation should not be an open invitation to crime, but that's not what the law seems to say.

 

[44 AMP]

that's not what the law seems to say.

And I think that is the crux of the issue. I think what you, I, or someone else with an understanding of basic English would understand as "forcible" is not all that the law regards as "forcible".

It was pointed out that the "force" to meet the legal definition might simply be the force required to open an unlocked door.

Consider for a moment, if you go up to a stranger's house, and go inside, through an unlocked door, the crime you might be charged with is "Breaking and entering", even though you broke nothing.

The devil is in the details, and how the law is worded, and how that wording is interpreted by the courts and enforcement agencies, not how you or I understand it, is what matters.

 

[Frank Ettin]

...I don't do lawyering...

I do lawyering -- or I did, to earn my living for 30+ years before I retired.

Since you don't do lawyering, perhaps it would be best if you were more careful about telling us what the law is -- at least without doing the research.

...To focus on the "level of force" involved is to attempt to split the hairs on an eggshell. The law does not mean what you believe it to....

We have the plain language of law law in front of us, and it reads (emphasis added):

...unlawfully and forcibly enters...

...Folks have been acquitted where they have shot others who were invited into their homes but became violent. No "force" involved in the entering...

And thus you show that you don't understand the significance and meaning of 198.5. Under 198.5, "unlawful and forcible entry" is not a condition on the right to use lethal force in self defense. It is a condition on having the benefit of an evidentiary presumption which can help the actor establish justification. But it's still possible to justify the use of lethal force without the presumption.

Perhaps you don't understand what a presumption is in law. This is how I explained the concept in a post discussing Florida's Castle Doctrine:

...[3] A presumption is a rule that affects evidence and burden of proof in court. Ordinarily, one who asserts something in court will have the burden of proving, by presenting good evidence, that certain facts supporting that assertion are true. But sometimes the law might allow one of those facts to be accepted as true without specific evidence of that fact if the party with the burden of proof shows that certain other facts are true. So the party might be entitled under a rule of law to have fact A presumed to be true if facts B, C, and D are shown to be true, even if the party produces no direct evidence that fact A is true.

[4] So you can establish that your use of lethal force was justified, thus satisfying 776.012, if --
You can show that

The person you used force against was, "...in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will..."; and

You, "...knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred...."

None of the exceptions in 776.013(2) apply.

And if you can do that, you don't have to specifically establish that you believed, "...that such force is necessary to prevent imminent death or great bodily harm to himself or herself...."

[5] But note that you don't get the presumption automatically. You need to show that the conditions that create the presumption exist. That might be easier than showing a fear of imminent death or great bodily harm, but you still must do some work to establish your claim of justification...

...The devil is in the details, and how the law is worded, and how that wording is interpreted by the courts and enforcement agencies, not how you or I understand it, is what matters.

Exactly.