The Castle Doctrine

[greensteelforge]

The use of deadly force by civilians should always be restricted to "last resort". Self defense should never be restricted when there is reasonable cause to believe a lethal threat exists. The "castle doctrine" simply makes it easier to shoot first, and avoid the risk of serious consequences. Essentially, what we are talking about here is whether or not civilians should be able to use deadly force offensively on their own property. If that's fine, then there is little to stop someone from killing a person, calling them an intruder, and never facing serious consequence. Who's going to offer a different story? Further, the Texas law has already led to at least one instance in which a man shot two unarmed men who were robbing his neighbor's home as they ran away. The shooter called 911, informed the operator of the burglary in progress next door, and that he was armed, and intended to shoot the perpetrators. After repeated instruction by the operator to remain in his home, he could be heard setting down the phone, stating that he knew his rights, followed by a door opening and two gunshots. Granted, the men were in the wrong (being Dominican immigrants didn't help their cause much either), but if we can kill over a TV set, where do we draw the line, can I put two in your chest and one in your face for trying to short-change me at the grocery store? I do agree that the law can put a person through the wringer for defending themselves, but we can't have it both ways, and I'd rather live in a state that will treat every shooting as a crime until the facts prove otherwise (this is generally the case with law enforcement, so why shouldn't it apply to you and me?).

 

[webhead]

In regards to the no knock police entry, I would think that if you shot a LEO in this case, you're odds of living thru it would be very low. They typically execute those warrants with body armor, tactical firepower and large numbers of trained officers.

In the situation given, the LEOs don't know they are in the wrong house so would respond with force if shot at. You take a shot at a LEO and the team is most likely to return fire without prejudice.

A key reason I think no knocks should not be allowed. Any mistakes will always pay a toll on the people in the home, a heavy toll if they think it's a gang trying to rob them and they resist. And I can't logically find any benefit for the LEOs. Is it because they can't eliminate the possibility the suspects will escape? Or perhaps they are worried evidence will be destroyed. But if they need key evidence to make a case, how did they get a no knock warrant in the first place? "Judge, we don't have enough evidence to convict this person but we do have enough to justify a warrant to enter with force and without notice."

 

[Coltman 77]

We need it in NC and I've been actively writing every politician involved.

And I keep writing them on a regular basis.

 

[thallub]

In OK there is no duty to retreat. This extends to the street in the so called stand your ground law. Additionally, in OK the prosecutor can decline to take a righteous shooting case to the grand jury. The family and friends of the deceased perp can then take up a petition for a grand jury: They will get nowhere because very few OK citizens are going to sign a petition for a grand jury hearing in a case where a home invader was killed.

 

[MLeake]

Greensteelforge...

... according to your theory of how all cases should be treated, the Constitutional assumption of "innocent until proven guilty" might as well be thrown out the window.

The onus should always be on the prosecutor to prove a crime was committed, whether within the home or out in town.

In theory, you swore an oath to defend the Constitution against all enemies, foreign and domestic. You might want to review the document and its history.

Cheers,

M

 

[Frank Ettin]

...the Constitutional assumption of "innocent until proven guilty" might as well be thrown out the window....

Strictly speaking, the presumption of innocence isn't in the Constitution. It is firmly embedded in the 500 year tradition of the Common Law of England, and thus became part of our law. So firmly is it embedded in our law that it would violate the Constitutional requirement of due process were innocence not presumed in a criminal case.

The onus should always be on the prosecutor to prove a crime was committed, whether within the home or out in town. ....

It works a little differently when the defendant pleads self defense.

Ordinarily, in a criminal prosecution the state must prove the elements of the criminal offense beyond a reasonable doubt. So if the crime charged, and for which the defendant is on trial, is manslaughter, the state must in general prove to the jury beyond a reasonable doubt that (1) the defendant was there; (2) the defendant shot the decedent; and (3) the defendant intended to shoot the decedent. But all of that is completely inapplicable when the defendant pleads self defense.

If the defendant claims self defense, the prosecution doesn't have to prove, at all, that the defendant was there, that he shot the decedent or that he intended to shoot the decedent, because the defendant will have admitted each of those element of the crime of manslaughter. If the defendant is claiming self defense he necessarily must admit that he (1) was there; (2) shot the decedent; and (3) intended to shoot the decedent.

The defendant's defense is he was legally justified. The allocation of the burden of proof and/or the burden of persuasion between the prosecution and defense in a self defense case varies from jurisdiction to jurisdiction. But the defendant will at least have to put forward evidence establishing a prima facie case of justification according to the standard applicable to the use of lethal force in self defense in the jurisdiction.

The prosecutor must now convince the jury that the defendant's homicide was not justified, i. e., that the defendant's act, which he has admitted, did not meet the legal standard for self defense with lethal force. The prosecution's burden of proof in rebuttal to the defendant's prima facie case with vary from jurisdiction to jurisdiction. In some jurisdictions the prosecutor may have to prove that beyond a reasonable doubt.

 

[Bartholomew Roberts]

Further, the Texas law has already led to at least one instance in which a man shot two unarmed men who were robbing his neighbor's home as they ran away. The shooter called 911, informed the operator of the burglary in progress next door, and that he was armed, and intended to shoot the perpetrators. After repeated instruction by the operator to remain in his home, he could be heard setting down the phone, stating that he knew his rights, followed by a door opening and two gunshots. Granted, the men were in the wrong (being Dominican immigrants didn't help their cause much either), but if we can kill over a TV set, where do we draw the line, can I put two in your chest and one in your face for trying to short-change me at the grocery store?

The Joe Horn incident has absolutely zero to do with Castle Doctrine, either in the traditional common law sense or the newer NRA laws. So I am not sure how you reached the conclusion that Castle Doctrine was to blame for that except that several newspapers erroneously reported it that way during the incident.

For the record, Texas law allows (and has allowed for a very long time) the use of deadly force to protect property in certain limited circumstances. However, in the case you reference, Joe Horn claimed self-defense. That is that he stepped outside and ordered the men to stop and the continued to come at him, so he shot. He was fortunate in that there happened to be a police officer there from the 911 call who witnessed the entire event, so his version of the story stood up at the grand jury hearing despite the media circus. Otherwise, given the 911 call and the slightly different story told by the forensics, he could have been looking at a serious problem, even in Texas.

As far as the two unarmed men, that is a risk of their profession and in Texas, it is a risk they will encounter if they stay in that profession long enough. They made the choice to run that risk by being there to begin with and not complying with the order to halt.

 

[Tennessee Gentleman]

Bartholomew Roberts,

Wasn't the issue with Joe Horn that the Texas law (I think reffered to as a Castles Doctrine law) changed the fall before the shooting to allow folk to use deadly force to protect the property of others? In the 911 call Joe horn told the operator that "the law has changed Sir and you know it" or something like that? That is the justification he used to step out into his yard to confront the bad guys?

 

[Bartholomew Roberts]

Wasn't the issue with Joe Horn that the Texas law (I think reffered to as a Castles Doctrine law) changed the fall before the shooting to allow folk to use deadly force to protect the property of others?

No, according to Sec. 9.43 of the Penal Code deadly force can be used to protect the property of third person (in certain limited circumstances) since 1973. The last time that law was amended was in September of 1993. Same for Sec. 9.42 (Using Deadly Force to Protect Property (your own)).

So none of the recent Castle Doctrine bills had any effect on this shooting.

Wasn't the issue with Joe Horn that the Texas law (I think reffered to as a Castles Doctrine law) changed the fall before the shooting to allow folk to use deadly force to protect the property of others?

Joe Horn may have thought that, I can't say - and certainly a lot of newspapers reported it like that both before and after the incident, so it would be easy to see where he might have gotten the idea. But from a legal standpoint, what Joe Horn did has nothing to do with Castle Doctrine (either the common-law version or the recent NRA push at the state level).

There is a nice editorial on the subtle distinctions in the 2007 law changes affecting self-defense by SMU law professor, Frederick Moss located here:
http://www.dallasnews.com/sharedcon...DN-moss_13edi.ART.State.Edition1.46561ef.html

 

[TEDDY]

CASTLE LAW

outcast: can you tell me where I was wrong in the two cases?that there is not that statement in the mass Law.since I lived there and was quite active in GOAL.and lived for 76 yrs there.a licensed gun owner.I followed the laws
and paticapated in yearly trips to the state house.am a life member of GOAL and a gun club in Mass.
and if puntuation is your problem dont read my posts.

 

[Tennessee Gentleman]

So none of the recent Castle Doctrine bills had any effect on this shooting.

The incident may prove a test for a new law recently passed in Texas which expands the right of citizens to use deadly force.

Under Texas law, people may use deadly force to protect their own property or to stop arson, burglary, robbery, theft or criminal mischief at night.

But the legislator who authored the "castle doctrine" bill told the Chronicle it was never intended to apply to a neighbor's property, to prompt a "'Law West of the Pecos' mentality or action," said Republican Sen. Jeff Wentworth. "You're supposed to be able to defend your own home, your own family, in your house, your place of business or your motor vehicle." Cite: http://www.cbsnews.com/stories/2007/11/17/national/main3517564.shtml?source=mostpop_story

and then this:

Dispatcher: "I got ultras coming out there. I don't want you to go outside that house. And I don't want you to have that gun in your hand when those officers are poking around out there."

Horn: "I understand that, OK, but I have a right to protect myself too, sir, and you understand that. And the laws have been changed in this country since September the First and you know it and I know it."

Dispatcher: "I understand."

Horn: "I have a right to protect myself ..."

Dispatcher: "I'm ..."

Horn: "And a shotgun is a legal weapon, it's not an illegal weapon."

Dispatcher: "No, it's not, I'm not saying that, I'm just not wanting you to ..."

Horn: "OK, he's coming out the window right now, I gotta go, buddy. I'm sorry, but he's coming out the window. "

Has the media missreported this stuff? They keep talking about the castle doctrine.

 

[RDak]

We've had this discussion at the Michigan Gunowners Site ("MGO") before and the general concensus was we do not have the right to shoot someone like that in Michigan.

The criminal would have to be threatening us, or someone else, with deadly force or great bodily harm.

So, in Michigan, to go further, you probably should not shoot anyone if the only thing they are doing is stealing your property.

Is it correct for me to assume, in those areas with laws like Michigan's, that if I were to stop a felon but he/she ran away, I better not shoot and just let him/her go? I say yes (i.e., I better not shoot) but I'm no lawyer.

ETA: The general concensus at MGO was we are allowed to carry a firearm to investigate possible trespass. Is this the general concensus here, for the most part? (I'm talking about a rifle or shotgun on your own property or your neighbor's property.)

 

[OldMarksman]

Has the media missreported this stuff? They keep talking about the castle doctrine.

Yep. Surprised?

There's code section 9.32, Deadly Force in Defense of Persons, which applies everywhere, but in different ways depending on location and circumstance. A paragraph of that applies to unlawful and forcible entry (or attempt at same) of an occupied habitation, vehicle, or place of business or employment; that paragraph alone is commonly referred to as the "castle doctrine" section of the Texas code. Horn was outside--castle doctrine most obviously didn't apply.

Other paragraphs do address deadly force wherever a person has a right to be.

Bad reporting? You be the judge.

There's another code section (9.42) that applies to defense of tangible property. Many people wrongly believe that the Horn case revolved around that. Nope!

Many knowledgeable people attribute Horn's "no bill" to statements by an LEO eyewitness that he fired in self defense. Regardless, he's also lucky he wasn't shot by the arriving officers.

 

[Bartholomew Roberts]

Has the media missreported this stuff? They keep talking about the castle doctrine.

Has the media misreported stuff on firearms/self-defense? That is like asking me if water is wet.

Yes, to the extent they are saying the new law had any effect on the legal outcome of this shooting, they were misreporting stuff (as the earlier link explained).

I guess it would be wrong to say it had "no effect" though since apparently Joe Horn thought that his actions would be justified/protected under the new law based on earlier misreporting of that issue (assuming of course that this statement of his was reported correctly).'

 

[Tennessee Gentleman]

I guess it would be wrong to say it had "no effect" though since apparently Joe Horn thought that his actions would be justified/protected under the new law based on earlier misreporting of that issue (assuming of course that this statement of his was reported correctly).'

Yes he did. You can hear it on the 911 tape. http://www.youtube.com/watch?v=_7jqLie6-Y0

He is rather testy with the 911 operator as if he is saying "I know what the law is, it just changed and I can go out there and shoot those guys". This is what scares me about how all these laws get jumbled up by the media and gun forums. Better talk to a lawyer or risk Club Fed!

 

[csmsss]

He is rather testy with the 911 operator as if he is saying "I know what the law is, it just changed and I can go out there and shoot those guys". This is what scares me about how all these laws get jumbled up by the media and gun forums. Better talk to a lawyer or risk Club Fed!

There is no evidence whatsoever that Joe Horn acted in any way other than that which was legal under Texas law. I'm sorry it hurts your feelings that this is so; however in this great state, we are permitted to defend our own and others' residences and property at night. Your personal feelings notwithstanding, Joe Horn's actions fell completely within state law and nothing you can say and nothing you believe will change that.

 

[Tennessee Gentleman]

I'm sorry it hurts your feelings that this is so; however in this great state, we are permitted to defend our own and others' residences and property at night.

Doesn't hurt my feelings. I don't have to live with having needlessly killed two people. BTW it happened during the day and Joe Horn did not use the statute that you allude to (defending property) as his defense ultimately.

Your personal feelings notwithstanding, Joe Horn's actions fell completely within state law and nothing you can say and nothing you believe will change that.

I'll let this lady from the Houston Chronicle explain:

But the best person to answer the question of whether Horn acted appropriately is Horn himself. He didn't need a grand jury to give him an answer.
He seemed to realize early on that needlessly shooting two men — regardless of their criminal behavior and illegal immigrant status, of which Horn was unaware at the time — would weigh heavily on him.

Through his attorney, Horn said he regretted shooting and that, if he had it to do over again, he would have stayed inside.

"Was it a mistake from a legal standpoint? No. But a mistake in his life? Yes," said defense lawyer Tom Lambright.
That message shouldn't get lost in all the celebrating from gun-rights advocates and armchair vigilantes who continue to proclaim Horn a hero and invite him to move next door.

This case has never been about gun rights, or self-defense. There are few people in this state who question someone's right to protect themselves with a gun if his or her life, family's life or property are threatened.

That wasn't the case with Horn.

The little old man from Pasadena gunned down two men like dogs. For a bag of loot.

He escaped indictment, but he'll carry that burden for the rest of his life.

 

[OldMarksman]

There is no evidence whatsoever that Joe Horn acted in any way other than that which was legal under Texas law.

Not the point. Question was whether the media references to the "castle doctrine" were appropriate.

More accurately, though, no evidence has been presented that indicates that Horn acted unlawfully, and there was testimony indicating justification. Do we know that none exists? Absent trial and acquittal or a pardon (and until Horn's demise), a later Grand Jury can always say differently and act accordingly, particularly if new evidence should come to light.

(What that means to everyone, by the way, is that the advice to not talk to the police or to the media (or to anyone, for that matter) about an encounter applies until and unless you are tried and acquitted or pardoned, or until you die. Good thing to remember.)

I'm sorry it hurts your feelings that this is so; however in this great state, we are permitted to defend our own and others' residences and property at night.

Nothing to do with the question, I'm afraid.

It would be interesting to know what the Grand Jury might have done absent the police officer's testimony that Horn had been threatened.

 

[Tom Servo]

I want to know what everyone thinks about the Castle Doctorine that has been put into law in Florida.

Back to the original topic. I'm happy with it. Though the right was accepted and often observed in theory, it's a good idea to have it codified in law.

It's also nice to have immunity from civil prosecution if someone shoots in self-defense. Until recently, the common knowledge was, "even if you're in the right, legally and morally, you will get sued out of house and home." The assumption was that the aggressor would become the "victim," and he (or his family) would be out for blood.

As for the Joe Horn case, I'm not sure how I feel. He may have been legally in the right according to Texas law, but morally? He chose his circumstances, and he escalated the situation himself. What started as a non-violent property crime became a double homicide. I don't see anything to do with self-defense in that situation, and therefore I find it irrelevant to the matter of "Castle Doctrine."

The idea of Castle Doctrine laws is essentially that you do not have to retreat, play dead, or suffer a certain amount of harm before using deadly force in self-defense. If you are threatened, you may act.

As an interesting aside, I drove to Florida a few months after the law passed. Within 15 miles of crossing the state line, I saw a wordier version of this, and it warmed my heart:

 

[Tennessee Gentleman]

It would be interesting to know what the Grand Jury might have done absent the police officer's testimony that Horn had been threatened.

Agree. Mr. Horn was VERY lucky IMO. Castle Doctrine had nothing to do with it but Joe Horn appeared to think it did.