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| Ian Wallach Criminal Defense Attorney Feldman & Wallach www.feldmanwallach.com Recent Media Appearances |
Stand Your Ground” Laws and “Castle Laws” And How They Relate To “Self-Defense” Laws
Stand Your Ground laws (also known as “Line In The Sand” and “No Duty to Retreat”) expressly remove a duty to retreat from perceived deadly force, and can provide additional protections to those who use deadly force when threatened.
Every state has self-defense
law a law describing when one can lawfully use deadly force. It’s either a statute, or common law
(judicial decisions), or a jury instruction, and essentially says that deadly
force can be used to protect oneself if necessary.
A “stand your ground” law is
an additional protection that can (a) clarify that there is no duty to retreat
from a lawfully-protected area; (b) provide for a hearing that can stop a
prosecution; and (c) provide an attorneys’ fees award and other relief against a victim or the family of a
victim that brings a suit based on an injury where the plaintiff “stood his
ground.”
Some states, like Florida, passed
legislation expressly stating that there is no duty to retreat -- no matter
where you are - (and even providing a hearing that can allow for a prosecution
to stop). Other states, like California,
achieve almost the same goals, by incorporating the stand-your-ground principle
into its self-defense laws.
Stand Your Ground laws are
frequently intertwined with “Castle Doctrine” laws. Under the Castle Doctrine, one can use deadly
force against an intruder to their home, vehicle, or workplace, without fear of
legal responsibility. The Castle
Doctrine usually requires that (a) the intruder entered a lawfully-occupied
space; (b) that the intruder was acting unlawfully; (c) that the occupant
reasonably believed that the intruder could inflict bodily harm on the
residents; and (d) that the occupant did not provoke or instigate the
intrusion.
About thirty states have
passed some express version of a Stand Your Ground law since Florida passed the
first in 2005. These states are
primarily located in the South and in the some western states (Arizona,
Texas). The latter is not surprising and
the “stand your ground” concept is deeply-rooted in Western-American
culture.
Contrary to public belief,
California has a “stand your ground” similar to Florida’s (except for the
hearing that can stop a prosecution).
Elements of criminal charges and available defenses are set forth in the
jury instructions, and the most recent instructions used in California are
called “CALCRIM”s.
CALCRIM 3470 provides, in
relevant part (emphasis added),
3470.
Right to Self-Defense or Defense of Another (Non-Homicide)
The
defendant is not guilty of <insert crime(s) charged> if
(he/she) used force against the other person in lawful (self-defense/ [or]
defense of another). The defendant acted in lawful (self-defense/ [or] defense
of another) if:
1.
The defendant reasonably believed that (he/she/ [or] someone else/ [or]<insert
name of third party>) was in imminent danger of suffering bodily injury
[or was in imminent danger of being touched unlawfully];
2.
The defendant reasonably believed that the immediate use of force was necessary
to defend against that danger;
AND
3.
The defendant used no more force than was reasonably necessary to defend
against that danger.
[A defendant is not required to retreat.
He or she is entitled to stand his or her ground and defend himself or
herself and, if reasonably necessary, to pursue an assailant until the
danger of (death/bodily injury/ <insert crime>) has passed. This
is so even if safety could have been achieved by retreating.]
The People have the burden of proving
beyond a reasonable doubt that the defendant did not act in lawful
(self-defense/ [or] defense of another). If the People have not met this
burden, you must find the defendant not guilty of <insert crime(s)
charged>.
California also has a
codified version of the Castle Doctrine:
Cal.
Pen. Code § 198.5. Presumption in favor of one who uses deadly force
against intruder
Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.
As used in this section, great bodily injury means a significant or substantial physical injury.
Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.
As used in this section, great bodily injury means a significant or substantial physical injury.
The National Rifle
Association worked with the American Legislative Exchange Counsel (“ALEC”) to
promote passage of “Stand Your Ground” laws.
ALEC – a legislative drafting organization with right-wing corporate
ties, has always promoted limits on corporate responsibility. ALEC’s draft model law – reprinted below – is
a very pro-gun and extreme model, reiterating a constitutional right to bear
arms and to be free from criminal activity, and providing attorneys fees awards
and additional remedies to those who are sued after injuring or killing others in
“stand your ground” scenarios. But as of
April 2012, ALEC disbanded its “Stand Your Ground” task force and stopped its
support of gun control laws, at the request of its remaining members.
The NRA has actively
supported legislation in other states since Florida’s express “Stand Your
Ground” law was passed in 2005. As of
last year, the NRA had purportedly provided about $2.6MM in support of state
level campaigns and committees and politicians that support the
legislation. Per the Huffington Post,
the NRA gave $125,000 in donations in Florida between 2003 and 2012, and while
that doesn’t seem to be that much, it is the most that the NRA has given for
any one cause.
It is highly unlikely that
these laws will be eliminated. Stand
Your Ground laws protect people from being bullied (and legalize any reasonable response). And the Castle Doctrine embodies the
generally-accepted principle that we can do what feel is necessary to protect
ourselves and those we love at home. And
these laws have support from the NRA, from ALEC, and encompass principles that
many Americans believe in.
A discussion is now taking
place as to how to adjust self-defense laws to reduce the use of deadly-force
outside of one’s home, workplace or vehicle.
What is needed is legislation that criminalizes the instigation of an altercation
while armed, with an enhancement for situations resulting in bodily injury or
death. In essence, a law that says “Yes,
if you approach someone, while you are armed, and instigate a fight, you can be
punished, and if the victim is hurt or dies, you can be punished severely.”
ALEC
Model Castle Law (source: www.alecexposed.org)
This
act authorizes the use of force, including deadly force, against an intruder or
attacker in a dwelling, residence, or vehicle under specified circumstances.
It
further creates a presumption that a reasonable fear of death or great bodily harm
exists under these specific circumstances, and declares that a person has no duty
to retreat and has the right to stand his or her ground and meet force with force
if the person is in a place where he or she has a right to be and the force is necessary
to prevent death, great bodily harm, or the commission of a forcible felony.
Finally,
the act provides immunity from civil prosecution or civil action for using deadly
force, defines the term “criminal prosecution,” and authorizes law-enforcement
agencies to investigate the use of deadly force while prohibiting the agencies
from arresting a person in these circumstances unless the agency determines
that there is probable cause that the force the person used was unlawful.
Model
Legislation
Legislative
Resolution and Intent
WHEREAS,
the Legislature of [insert state/commonwealth name] finds that it is proper for
law-abiding people to protect themselves, their families, and others from intruders
and attackers without fear of prosecution or civil action from acting in defense
of the themselves and others; and
WHEREAS,
the “Castle Doctrine” is a common-law doctrine of ancient origins that declares
that a person’s home is his or her castle; and
WHEREAS,
[insert appropriate reference to the State/Commonwealth Constitution that
provides for the right of citizens to bear arms] guarantees the right of the people
to keep and bear arms; and
WHEREAS,
the persons residing in or visiting this [state/commonwealth] have a right
remain unmolested within their homes or vehicles; and
WHEREAS,
no person or victim of crime should be required to surrender his or her personal
safety to a criminal, nor should a person or victim be required to needlessly
retreat in the face of intrusion or attack;
*This
model is based upon Florida legislation enacted April 26, 2005.
BE
IT RESOLVED, the Legislature of [insert state/commonwealth name] hereby enacts
the following:
Section
1. {Home Protection, Use of Deadly Force, Presumption of Fear of Death or Harm}
1. A
person is presumed to have held a reasonable fear of imminent peril of death or
great bodily harm to himself or herself or another when using defensive force that
is intended or likely to cause death or great bodily harm to another if:
a.
The person against whom the defensive force was used was in the
process
of unlawfully and forcefully entering, or had unlawfully or forcefully entered,
a dwelling, residence, or occupied vehicle, or if that
person
had removed or was attempting to remove another against that
person’s
will from the dwelling, residence, or occupied vehicle; and
b.
The person who uses defensive force knew or had reason to believe
that
an unlawful and forcible entry or unlawful and forcible act was
occurring
or had occurred.
2.
The presumption set forth in Subsection (1) does not apply if:
a.
The person against whom the defensive force is used has the right to be in or
is a lawful resident of the dwelling residence, or vehicle, such as an owner,
lessee, or titleholder, and there is not an injunction for protection from
domestic violence or a written pretrial supervision order of no contact against
that person; or
b.
The person or persons sought to be removed is a child, grandchild, or is
otherwise in the lawful custody or under the lawful guardianship of, the person
against whom the defensive force is used; or
c.
The person who uses defensive force is engaged in a criminal activity or is
using the dwelling, residence, or occupied vehicle to further a criminal
activity; or
d.
The person against whom defensive force is used is a law enforcement officer,
as defined in [insert appropriate reference to state/commonwealth code, which
defines the term “law enforcement officer” or similar], who enters or attempts
to enter a dwelling, residence, or vehicle in the performance of his or her
official duties and the officer identified himself or herself in accordance
with applicable law, or the person using force knew or reasonably should have
known that the person entering or attempting to enter was a law enforcement officer.
3. A
person who is not engaged in an unlawful activity and who is attacked in any other
place where he or she has a right to be has no duty to retreat and has the right
to stand his or her ground and meet force with force, including deadly force if
he or she reasonably believes it is necessary to do so to prevent death or
great bodily harm to himself or herself or another, or to prevent the
commission of a forcible felony.
4. A
person who unlawfully and by force enters or attempts to enter a person’s dwelling,
residence, or occupied vehicle is presumed to be doing so with the intent to
commit an unlawful act involving force or violence.
5.
As used in this section, the term:
a.
“Dwelling” means a building or conveyance of any kind, including
any
attached porch, whether the building or conveyance is temporary or permanent,
mobile or immobile, which has a roof over it, including a tent, and is designed
to be occupied by people lodging therein at night.
b.
“Residence” means a dwelling in which a person resides either temporarily or
permanently or is visiting as an invited guest.
c.
“Vehicle” means a conveyance of any kind, whether or not motorized, which is
designed to transport people or property.
Section
2. {Immunity from Criminal Prosecution and Civil Action}
1.
As used in this subsection, the term “criminal prosecution” includes arresting,
detaining in custody, and charging or prosecuting the defendant.
2. A
person who uses force as permitted in Section (1) [and other state codes which are
affected/amended by this legislation and which refer to the use of force including
deadly force] is justified in using such force and is immune from criminal prosecution
and civil action for the use of such force, except when:
a.
The person against whom force was used is a law enforcement officer as defined
in [insert appropriate reference to state/commonwealth
code, which defines the term “law enforcement officer” or similar], who was
acting in the performance of his or her duties and the officer identified himself
or herself in accordance with applicable law; or
b.
The person using force knew or reasonably should have known that
the
person was a law enforcement officer.
3. A
law enforcement agency may use standard procedures for investigating the use of
force as described in subsection (2), but the agency may not arrest the person
for using force unless it determines that there is probable cause that the force
that was used was unlawful.
4.
The court shall award reasonable attorney’s fees, court costs, compensation for
loss of income, and all expenses incurred by the defendant in defense of any civil
action brought by a plaintiff if the court finds that the defendant is immune
from prosecution as provided in subsection (2).
Section
3. {Severability}
Section
4. {Effective Date}
Great article! Thanks!
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