“An Englishman’s home is his castle. Attacked there, he need not retreat.” That is the essence of the “castle doctrine,” a principle of English Common Law that has long been recognized in the United States. Of late, it has been discussed much more frequently than before, both by advocates of gun owners’ civil rights and opponents of those rights. Some of those discussions have been poorly informed, leading to some profound misunderstandings. In turn, some bad advice has emerged—advice, which if followed, could send a person to the prison or “the poorhouse.”

Fine Points

Some have misinterpreted “castle doctrine” to mean that the resident can shoot anyone they find in their home whom they didn’t invite in. That is simply untrue.

It’s not unknown for little kids to accidentally bat a baseball through a neighbor’s window, and then climb in through the window to retrieve it. Would any of us shoot a child for that? No, of course not.

Suppose you come home from work after dusk to find your home unexpectedly in darkness. You enter the house, and flip a light switch: the house remains dark, as if the power lines have been cut. You hear someone in the next room, and draw your pistol with one hand and your flashlight in the other. Your beam catches the face of an adult male you’ve never seen before. Are you authorized to shoot?

Not necessarily. Perhaps you’ve just illuminated the electrician your spouse called in after the lights went out. It is not enough to believe, however sincerely, that the other person is a danger to you. The requirement is that you reasonably believe, within the totality of the circumstances, that (a) the person actually is an illegal intruder, and that (b) he presents a genuine danger to you and your family.

Let’s change the scenario above: in your darkened house, you find a strange man wearing a stocking mask, and standing beside a broken window through which he has obviously entered. You draw your pistol…and he turns and runs to dive through the window. If you shoot him in the back at this point, you’ll be in very hot water in most jurisdictions. He is a fleeing felon, true, but the felony was not a violent or heinous one in this scenario, and in running away from you he does not present a clear, articulable danger to you or any other family member. “Castle Doctrine” is unlikely to save you from very severe legal consequences if you shoot him in the back as he rushes headlong to escape, without offering violence against you or others.

Another fine point of the castle doctrine concept that is very much worth knowing, is that it was historically meant to apply to illegal intruders. If one member of the household attacks another, the doctrine may be cancelled out, since both combatants share the same “castle.”

Retreat Requirement Issues

Outside of the home, some states have historically required retreat prior to using deadly force in self-defense, and some have not. Of late, several states have rescinded the retreat requirement when in public, and made it expressly legal to stand one’s ground and defend oneself, if attacked in any place where they have a right to be.

Unfortunately, people on both sides of the issue have come to call this “Castle Doctrine” as well. This is because “castle doctrine” is seen as synonymous with “no duty to retreat.” However, “castle doctrine” is also inextricably tied with the concept that “a person’s home is their castle” – even more so than with the retreat requirement, to the general public – and this creates potential for confusion among members of the jury pool.

Let’s say that you’ve had to shoot a mugger in self-defense in the course of a street attack in which you stood your ground. Opposing counsel asks you, “Why did you feel you didn’t have to retreat?” He’s hoping you’ll answer, “Because of the Castle Doctrine.”

If that is indeed your answer, the next question is likely to be, “And sir, do you understand that term to derive from the English Common Law principle that a man’s home is his castle, and he does not have to retreat when attacked there?” The obvious, logical, and truthful answer from you would be “Yes.”

Your cross-examiner will now drop the bomb. “But you were on a public street instead of your ‘castle,’ weren’t you? Do you consider yourself the king of all of us, sir — and the streets your kingdom? Are all of us your subjects?”

Gonna be a tough question to answer. Your cross-examiner is trying to make a monkey out of you. With that line of questioning, he has an excellent chance of success.

The rescinding of the retreat requirement is just that—no more and no less, a rescinding of the retreat requirement. That’s a perfectly good way of describing it, and in this writer’s opinion after more than three decades in court in roles of expert witness, probably a much better way of describing it than “castle doctrine.”

Many have called the legislation that rescinds the retreat requirement a “Stand Your Ground” law. This is a much better description, and a much more neutral one.

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