Castle doctrine

History

The legal concept of the inviolability of the home has been known in Western civilization since the age of the Roman Republic. In English common law the term is derived from the dictum that "an Englishman's home is his castle" (see Semayne's case). This concept was established as English law by the 17th century jurist Sir Edward Coke, in his The Institutes of the Laws of England, 1628:

For a man's house is his castle, et domus sua cuique est tutissimum refugium [and each man's home is his safest refuge].

English common law came with colonists to the New World, where it has become known as the castle doctrine. The term has been used in England to imply a person's absolute right to exclude anyone from his home, although this has always had restrictions, such as bailiffs having increasing powers of entry since the late-20th century.

According to 18th-century Presbyterian minister and biblical commentator Matthew Henry, the prohibition of murder found in the Old Testament contains an exception for legitimate self-defense. A home defender who struck and killed a thief caught in the act of breaking in at night was not guilty of bloodshed. “If a thief is caught breaking in and is struck so that he dies, the thief owes no blood-debt to the home-defender; but if the thief lives, he owes a blood-debt to the home-defender and must make restitution.”

In early United States

By the 18th century, many US state legal systems began by importing English common law such as Acts of Parliament of 2 Ed. III (Statute of Northampton), and 5 Rich. II (Forcible Entry Act 1381) in law since 1381—which imposed criminal sanctions intending to discourage the resort to self-help. This required a threatened party to retreat, whenever property was "involved" and resolve the issue by civil means.

Then as now, there were English politicians who were for or against the use of self-help over state-help. William Blackstone, in Book 4, Chapter 16 of his Commentaries on the Laws of England, proclaims that the laws "leave him (the inhabitant) the natural right of killing the aggressor (the burglar)" and goes on to generalize in the following words:

And the law of England has so particular and tender a regard to the immunity of a man's house, that it stiles it his castle, and will never suffer it to be violated with immunity: agreeing herein with the sentiments of ancient Rome, as expressed in the works of Tully; quid enim sanctius, quid omni religione munitius, quam domus uniusquisque civium? For this reason no doors can in general be broken open to execute any civil process; though, in criminal causes, the public safety supersedes the private. Hence also in part arises the animadversion of the law upon eaves-droppers, nuisancers, and incendiaries: and to this principle it must be assigned, that a man may assemble people together lawfully without danger of raising a riot, rout, or unlawful assembly, in order to protect and defend his house; which he is not permitted to do in any other case.

Not only was the doctrine considered to justify defense against neighbors and criminals, but any of the Crown's agents who attempted to enter without a proper warrant as well. It should be noted that prohibitions of the Fourth Amendment to the United States Constitution share a common background with current castle doctrine laws.

In 1841, The Preemption Act was passed to "appropriate the proceeds of the sales of public lands... and to grant 'pre-emption rights' to individuals" who were already living on federal lands (commonly referred to as "squatters"). During this same period, claim clubs sprung up all over the US advocating vigilance and the castle doctrine. This was in concurrence with the culture of manifest destiny which led to westward expansion and the American Indian Wars, the last of which ended by the 1920s.

On the American frontier

On the American frontier, the doctrine of no duty to retreat extended outside a residence. It asserted that a man in an altercation that he did not provoke was not obliged to flee from his attacker, but was free to stand his ground and defend himself. A state Supreme Court justice wrote in 1877,

Indeed, the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed.

American West historian Richard M. Brown wrote that under the circumstances, for a man in the American West to flee under such circumstances would be cowardly and un-American. Legendary dentist and gambler Doc Holliday successfully used this defense when he shot Billy Allen as he entered a saloon. Holliday owed Allen $5 which Allen wanted paid and had threatened Holliday. Although Allen was unarmed at the time, Holliday had received reports that Allen had been armed and looking for him earlier in the day. During the subsequent trial, Holliday asserted he was within his rights and the jury agreed. He was acquitted on March 28, 1885.

Current position

Today, the majority of American states have construed their statutes of forcible entry, both penal and civil, in such a manner as to abrogate the common law privilege to use force in the recovery of possession of land. A minority of states, however, have taken the view that their forcible entry statutes have not deprived a defendant with the right to immediate possession of land of his common law privilege to use reasonable force to regain possession thereof.

The term "make my day law" came to be used in the United States in about 1985 when Colorado passed a law that shielded people from any criminal or civil liability for using force against a home invader, including deadly force. (The law's nickname is a reference to the line "Go ahead, make my day" uttered by actor Clint Eastwood's character "Dirty Harry" Callahan in the 1983 police film Sudden Impact.)

Conditions of use

Each jurisdiction incorporates the castle doctrine into its laws in different ways. The circumstance in which it may be invoked include the premises covered (abode only, or other places too), the degree of retreat or non-deadly resistance required before deadly force can be used, etc. Typical conditions that apply to some castle doctrine laws include:

In all cases, the occupant(s) of the home: must be there legally; must not be fugitives from the law, themselves, or aiding/abetting other fugitives; and must not use force upon an officer of the law performing a legal duty.

In Colorado, the make-my-day statute provides the occupant with immunity from prosecution only for force used against a person who has made an unlawful entry into the dwelling, but not against a person who remains unlawfully in the dwelling.

Immunity from civil lawsuit

In addition to providing a valid defense in criminal law, many laws implementing the castle doctrine, particularly those with a "stand-your-ground clause," also have a clause which provides immunity from any civil lawsuits filed on behalf of the assailant (for damages/injuries resulting from the force used to stop them). Without this clause, an assailant could sue for medical bills, property damage, disability, and pain & suffering as a result of the injuries inflicted by the defender; or, if the force results in the assailant's death, his/her next-of-kin or estate could launch a wrongful death suit. Even if successfully rebutted, the defendant (the homeowner/defender) may still have to pay high legal costs leading up to the suit's dismissal. Without criminal/civil immunity, such civil action could be used as revenge against a lawfully acting defender (who was, originally, the assailant's victim).

Use of force in self-defense which causes damage or injuries to other, non-criminally-acting parties, may not be shielded from criminal or civil prosecution, however.

Duty to retreat

In US jurisdictions where the castle doctrine applies, there is no duty to retreat before deadly force is used against an intruder by a person in their home or, in some jurisdictions, just simply where the person can legally be.

Stand-your-ground

Most states in the United States have stand-your-ground laws where individuals can use deadly force in any location one is legally allowed to be without first attempting to retreat.

Culpability of intruder

In Colorado, the make-my-day statute "was not intended to justify use of physical force against persons who enter a dwelling accidentally or in good faith." In other words, "the unlawful entry element requires a culpable mental state of 'knowingly' on the part of the intruder."

State-by-state positions in the United States

For each state in the US with a castle doctrine, an external link is provided to the text of the specific statute, if available. If a direct link is unavailable, for example if the destination website uses JavaScript, the statute name and/or number is listed.

States with a castle law

Castle doctrine lays down that there is no duty to retreat from an intruder in one's home. A justifiable homicide which occurs inside one's home is distinct as a matter of law from castle doctrine's no duty to retreat. As such, states with justifiable homicide provisions in pertaining to one's domicile, do not in themselves authorize indiscriminate violence therein—the mere fact that one is trespassing is no defense per se to justifying homicide.

In addition to the states listed below, the U.S. Territory of Guam has the Castle doctrine as law.

States with weak or no specific castle law

These states uphold castle doctrine in general, but may rely on case law instead of specific legislation, may enforce a duty to retreat, and may impose specific restrictions on the use of deadly force:

Australia

Australian states have differing self-defence laws. Under South Australian law, the general defence appears in s15(1) Criminal Law Consolidation Act 1935 (SA) for defending a person's life, and s15A(1) for defending property, subject to a hybrid test, i.e. the defendant honestly believed the threat to be imminent and made an objectively reasonable and proportionate response to the circumstances as the accused subjectively perceived them.

In July 2003, the Rann Government (SA) introduced laws allowing householders to use "whatever force they deem necessary" when confronted with a home invader. Householders who kill or injure a home invader escape prosecution provided they can prove they had a genuine belief that it was necessary to do so to protect themselves or their family. The law was strongly opposed by then-Director of Public Prosecutions Paul Rofe, QC, and lawyer Marie Shaw, who is now a District Court Judge.

Canada

By court ruling in 2011, a resident is permitted to use "reasonable and necessary" force in subduing an intruder in his or her private domicile or business. By definition, killing the intruder is only an option if non-lethal means cannot be carried out, and excessive force with obvious intent to kill is not necessarily defensible in court.

England and Wales

In English common law a defendant may seek to avoid criminal or civil liability by claiming that he acted in self-defence. This requires the jury to determine whether the defendant believed that force was necessary to defend him or herself, his or her property, or to prevent a crime, and that the force used was reasonable. While there is no duty to retreat from an attacker and failure to do so is not conclusive evidence that a person did not act in self-defence, it may still be considered by the jury as a relevant factor when assessing the merits of a self-defence claim. The common law duty to retreat was repealed by the Criminal Law Act 1967. This duty never existed when a person is somewhere he has a lawful right to be, but due to the repeal, now extends to public places, etc.

Germany

German law allows self-defense against an unlawful attack, without any duty to retreat. Courts have interpreted this law as applicable to home invasion, including the use of lethal force against law enforcement in cases where the home owner was of the mistaken belief that the intrusion was an unlawful attack on his life.

Ireland

Under the terms of the Defence and the Dwelling Act, property owners or residents are entitled to defend themselves with force, up to and including lethal force. Any individual who uses force against a trespasser is not guilty of an offense if he or she honestly believes they were there to commit a criminal act and a threat to life. However, there is a further provision which requires that the reaction to the intruder is such that another reasonable person in the same circumstances would likely employ. This provision acts as a safeguard against grossly disproportionate use of force, while still allowing a person to use force in nearly all circumstances.

The law was introduced in response to DPP v. Padraig Nally. The Act largely places previous Irish common law jurisprudence regarding self-defense on a statutory footing.

Israel

Israeli law allows property owners to defend themselves with force. This law was introduced in response to the trial of Shai Dromi, an Israeli farmer who shot Arab intruders on his farm late at night.

Italy

Italy passed a law in 2005 that would allow property owners to defend themselves with force. The law's practical application is however highly controversial: Italian judiciary system is rather complex and using force is, more often than not, not recommended at all, since the property owner might get sued for disproportionate use of force.