In a nation that has become a sound-bite society — with CNN Headline News almost as popular as regular CNN, and USA Today our second-most widely read newspaper — we have a public and therefore a jury pool that is increasingly vulnerable to misinformed simple answers to complicated questions. This has certainly been true in recent years, with print and electronic media having disseminated false perceptions about such topics as Castle Doctrine and Stand Your Ground laws.

We are told on editorial pages that with these laws in place, anyone can kill anyone and get away with it by claiming “I was in fear for my life.” We are told that this allows criminals to commit murder and get away with it by uttering the magic words, “It was self-defense.” We are told that with these laws rivers of blood will run in the streets, that both malicious and negligent shootings will go unredressed in the civil courts, and that homicides will rise and already are rising as a direct result. The facts, however, show otherwise.

When Terms Get Confused

Castle Doctrine derives from the ancient principle in the English Common Law which held that the individual’s home is his castle; attacked there, he need not retreat, and even the king could not enter the cottage of the most humble peasant without a warrant. While the latter element touches on Fourth Amendment issues not on point to the topic of the moment, “a man’s home is his castle” is so well established that it has long since entered daily American idiom.

The doctrine speaks to home and curtilage: The house or apartment itself, and attached or adjacent buildings; actual definitions of “curtilage” may vary in caselaw state by state. Normally, however, it will not extend to the front lawn, the sidewalk, or the far boundaries of one’s farm or ranch.

Castle Doctrine issues can be murky. In one famous case in New England in the mid-1970s, Commonwealth of Massachusetts v. Roberta Shaffer, a state Supreme Court held that a woman who shot her common law husband when he attacked her in their home was not covered because the home was his too, and therefore her invocation of the castle doctrine was not applicable. In 2012, however, in State of Nebraska v. Darrel White, the Nebraska State Supreme Court upheld a man’s right to, without retreat, kill the roommate who violently attacked him in the abode they both shared.

Stand Your Ground (SYG) laws are geared to confrontations which occur outside the home, since they would be redundant to the Castle Doctrine which already makes it clear that the individual need not retreat before using defensive deadly force against a home invader.

SYG protects your client only if:

(1) He was not the aggressor, or if he was, has attempted to break off hostilities before the second party’s attack on him now necessitates your client’s use of deadly force.

(2) He was in a place where he had a right to be. (3) He was not committing
a crime at the time.

Since the passage of the relevant Texas law authored by State Senator Jeff Wentworth, R-San Antonio, retreat has not been required before resorting to deadly force if the latter is necessary. However, even prior, retreat has never been demanded unless it could be accomplished with complete safety to oneself and others. This is true in Texas, and has long been true in the rest of
the country as well, including the so called “retreat states.”

It is imperative that your client knows the difference. As you know, self-defense is an affirmative defense, which shifts the burden of proof. In most jurisdictions, for a self-defense plea to prevail, the defense will have to convince the triers of the facts to a preponderance of evidence standard that the shooting was indeed justified. This burden, vastly higher than merely creating an element of reasonable doubt as to his guilt, is far more easily met if the defendant takes the stand. After all, you are stipulating that he shot the deceased: the issue is why he did so. Was his purpose malicious, or justifiable? You can say whatever you want in opening statement, but by the time you’re ready to close, you have to introduce testimony or evidence to back up any assertions you make at opening. If your client doesn’t take the stand, who else can testify as to what his purpose was when he pulled the trigger?

Since there is therefore a high likelihood that your client will take the stand, it is important for you to have schooled him as to the difference between Castle Doctrine and Stand Your Ground. Suppose your client was attacked by a knife-wielding mugger in a public park, and instead of attempting to retreat, drew his legally carried gun and shot the assailant dead. During cross-examination, opposing counsel may ask him, “Mr. Defendant, what do you believe justified you using a gun on him without at least attempting to just run away without bloodshed?” If your client makes the mistake of answering “Castle Doctrine,” opposing counsel has your man in a very disadvantaged position.

I would expect the opposing lawyer to hand him a copy of Black’s Legal Dictionary and have your client read the definition of Castle Doctrine to the jury. Then, your opposite number will pounce. “So, Mr. Defendant, it’s the home that’s the castle. But this shooting took place in a park. Are you telling this jury you consider the park to be your castle grounds? Who was it, exactly, who made you the king of all the rest of us?”

This is why it’s important for anyone who carries a gun to know the difference between Castle Doctrine and Stand Your Ground.

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