“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.

Stand Your Ground

The “Brady Bunch” was horrified when Florida passed a “stand your ground” law, and that anti-gun group paid for ads and reportedly even billboards to discourage tourists in the Sunshine State, claiming that Floridians now had the right to shoot anyone and simply claim they had been afraid to be one of their victims. But the law said no such thing: it was merely proof of the mendacity of certain anti-gun advocates, the sort of ethical bankruptcy that has led some of their groups to financial bankruptcy.

The fact is, the use of deadly force on another human being is a very serious matter; it always has been, and the passing of a Stand Your Ground law does not change that. For deadly force to be justifiable in street self-defense in every state in the nation, it must be shown that the shooter was faced with a situation of immediate danger of death or great bodily harm, and did what a reasonable and prudent person would have done, in the same situation, knowing what the defendant knew.

As we’ll explore shortly, a Stand Your Ground law is a good thing for the law-abiding citizen in many ways. However, it does not change the “armed citizen’s rules of engagement” as much as some seem to think. It simply means that where before, in a “retreat state,” one was expected to at least attempt to retreat before resorting to defensive force in a place other than one’s home, that retreat requirement has been eliminated if the defender is in a place where he or she has a right to be.

However, many have missed the fact that in “retreat states,” past and present, retreat has never been demanded unless it could be accomplished in complete safety to oneself and others.

Many people have missed that fine point in the retreat requirements. It behooves us all to stop and ask ourselves one question: “When would we ever have shot someone if we could have retreated in complete safety to ourselves and everyone else in our party?”

Thus, the rescinding of the retreat requirement does not really change the paradigm about when we can or can’t use deadly force justifiably in defense of self or others. It does give a prosecutor an excuse palatable to the public for dropping charges against a citizen who has done the right thing in firing in self-defense, but has also triggered hostile “politically correct” public opinion. It can certainly help forestall unmeritorious lawsuits that arise from justified use of force in self-defense.

However, it is not the panacea some seem to think it is. Let’s look at a few recent cases that have taken place in Florida, since that state rescinded its previous requirement to retreat when attacked in a public place where the defender had a right to be.

Case One: A “homeless” man tends to be seen by the public as a beggar worthy of pity, and when one tries to rob a store pretending to be armed with a gun, the storeowner – a previous armed robbery victim – draws a .40 caliber pistol and shoots him down. The perpetrator survives, and there are those who pressure the chief prosecutor (known there as a State’s Attorney) to indict him. The SA announces that since the retreat requirement was rescinded, he can’t get a conviction and won’t waste the taxpayers’ money trying, so he drops the case…but not before an excoriating public statement implying the shooter did a bad thing. That SA does not run for re-election. In this case, the rescinding of the retreat requirement was a Godsend for the shooter, who in this writer’s opinion acted correctly.

Case Two: Despite having a heart condition, a citizen attempts to intervene when a drunken man in a state of rage knocks a woman down. The drunk turns on him and attacks him so viciously that the citizen has to draw his licensed pistol and fire to defend himself. As is sometimes the case with extremely violent humans, it takes six rounds from a .45 auto to stop the attack. The “stand your ground law” did no good when the citizen was charged with murder, perhaps because the authorities did not deeply understand the disparity of force principles of the law, or perhaps because they thought six rounds of .45 was excessive. Charged with murder and with bail denied, this man spent nearly two years in jail awaiting trial, before a jury finally determined that he had done the right thing and acquitted him. No one could give him back two years of his life, however.

Case Three: A young man in South Florida is asked to show his gun at a party, not realizing that one of the party-goers is antagonistic toward him, and has a lot of friends. The requested showing of the gun becomes a “you’re scaring us” excuse to kick him out of the party. He leaves amid escalating pushing and shoving, and while in his car trying to find his keys, he finds himself under attack by multiple assailants in the driveway. When a fist comes through the side window, shattering it and spraying his face with glass, he fires twice. He is charged with murder. The court refuses to consider the rescinding of the retreat requirement, and he is held without bail for nearly two years before he, too, is found not guilty by a jury for shooting his attacker. The “stand your ground” law hasn’t done him any good, either.

Case Four: The attacker is big, young, mean, and drunk, and culminates a road-rage situation he has begun by savagely beating his victim, a middle-aged man. The victim stops the attack with his .40 caliber Glock. Here, the judge actually cites the “Stand Your Ground” law when he throws out the manslaughter charge against the armed citizen. However, it is announced that a lawsuit is being filed against him by the family of the deceased. At this writing, I don’t know the status of that case. But, at least in terms of the criminal justice system, in this case the Stand Your Ground law definitely did work to the advantage of the innocent victim who defended himself…the sort of person the law was expressly designed to protect.

Four cases, in two of which the rescinding of the retreat requirement prevented injustice, and in two of which it did nothing to help the wrongfully accused, who were later exonerated by juries of their peers after long and arduous ordeals.

This is why it’s not wise to believe that the passage of such a law is an automatic guarantee of anything.

The cases above are all from Florida. My friend and colleague Tom Givens teaches in Memphis, and feels that Tennessee’s law works very well, including its tort reform law that blocks lawsuits against the shooter when the shooting is ruled justifiable. Tom reports that his students in the Memphis area have been involved in 50-some shootings at this writing, and that none have been successfully sued.

However, in Case Five, a Memphis citizen who had not been trained by Tom or by anyone as knowledgeable as he, ran afoul of the law. He and his wife found themselves up against a large, intoxicated man who was vandalizing the citizen’s car because he thought it was parked too close to his own in a parking lot. The big man knocked the citizen’s wife to the ground. Convinced that he was overmatched physically, the citizen retrieved a 1911 from his adjacent vehicle and ordered the man back. When he perceived the man coming at him as if to take the gun, he unleashed a single 230-grain .45 slug, killing him. This man was recently convicted of murder after a jury trial.

There are no absolute guarantees. Anywhere.

Final Notes

Castle Doctrine is not really the same thing as the rescinding of the retreat requirement in public, which in jurisdictions where it has been adopted has sometimes been more correctly called a Stand Your Ground law.

Neither Castle Doctrine nor Stand Your Ground relieve the gun owner from the responsibility of having to show that their use of defensive deadly force was what a reasonable, prudent person who knew what they knew would have done in the exact same situation. Only immediate, otherwise unavoidable danger of death or great bodily harm to oneself, or to another innocent person the shooter has the right to protect, is seen at law as always justifying lethal force.

The only “Get Out of Jail Free” card you’ll ever find is in a Monopoly game, and the use of deadly force is no game at all.

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