What is the difference between the castle doctrine and stand your ground? (Photo: NRA-ILA)
(Editor’s note: The information in this article is based on the author’s research and is NOT legal advice. Do not construe it as legal advice. Jordan is NOT a lawyer!)
Earlier this month a man named Jerad Jones shot and killed his brother-in-law in Weston, Wi., because, according to his lawyer, he feared for his life and the lives of his sister and her daughter.
As the shooting took place in Jones’s home, the defendant and his lawyer are hoping to appeal to Wisconsin’s castle doctrine law, which allows for the use of deadly force in the home if a person “reasonably believed that the force was necessary to prevent imminent death or bodily harm to himself or herself or to another person.”
Jones’s version of events seems like a clear-cut case of self-defense, except for one wrinkle: Jones’s brother-in-law also lived in the home in which the incident took place. Wisconsin’s castle doctrine specifically requires the “unlawful or forcible entering” of a person’s property before the law can be applied.
While the evidence suggests Jones actually feared for his life, his case illustrates the complicated nature of nearly every self-defense situation. Did Jones have a duty to retreat from his own home just because his brother-in-law also happened to live there? Doesn’t he have a right to defend himself and his family?
SEE ALSO: Do You Have a ‘Duty to Retreat’ in Public Places in Your State?
Wisconsin’s judicial system will decide these questions in the coming weeks and months, but it’s important for every gun owner to understand the basic framework of self-defense laws in the United States. The requirements for justifiable homicide differ wildly from state to state, but understanding three basic terms will allow you to categorize—in a general sense—your obligations and duties if you find yourself fighting for your life.
The most important term to understand is “duty to retreat.” The other two terms—castle doctrine and “stand your ground”—won’t make sense unless you know what it means to have a duty to retreat.
States formulate this idea in a variety of ways, but Article 35 of New York’s penal code sums it up nicely: an “actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating.”
Generally speaking, the difference between castle doctrine laws and stand your ground laws lies in the location in which you have a duty to retreat. We’ll start with the castle doctrine.
The Castle Doctrine
The castle doctrine originated in England around 1600. It gets its name from the famous maxim “a man’s house is his castle,” which has become one of the most deeply rooted principles in Anglo-American jurisprudence. The castle doctrine gave individuals the right to protect their homes using deadly force without being obligated to retreat.
English citizens at this time felt the need to protect themselves from intrusion by the government, by the King, and by criminal strangers. They developed the castle doctrine so that even the “poorest man” living “in his cottage” would possess the right to defend himself and his family without fear of criminal prosecution.
The castle doctrine has existed in American common law for centuries. While it was not codified (to my knowledge) until the 20th century, it has always protected Americans who must defend their homes, and it even informed the Fourth Amendment, which protects people, their homes, and their property against unreasonable searches and seizures by the government.
In the 1980s a handful of states passed what became known as “make my day laws.” These laws simply codified what Americans have always believed about a person’s right to defend his or her home. Colorado’s castle doctrine law, for example, gives a home’s occupant the right to use deadly force if they believe the intruder intends to commit a crime or use physical against them. It does not require a duty to retreat. Even if the occupant has the ability to run out of the home, they are not required to do so before using deadly force.
Most castle doctrine laws are similar to Colorado’s, and many states have some form of the castle doctrine on the books. While a person may have a duty to retreat outside of the home, they do not have the same duty inside.
Stand Your Ground
Stand your ground laws move the castle doctrine principle into the public square. Generally speaking, a stand your ground law does not impose an obligation to retreat from public places a person is legally allowed to be. A more in-depth analysis of stand your ground laws can be found in this article, but here’s the gist.
Florida passed the first stand your ground law in 2005. Since then, at least 26 states have passed similar laws that allow a person to use deadly force in a life-threatening situation. All stand your ground laws stipulate that a person must reasonably believe themselves or another person to be in mortal danger before matching force with force. Self-defense has always been a potential justification for homicide, but stand your ground laws codify this principle and specifically state that a person does not have a duty to retreat.
These laws came under intense scrutiny in 2013 when a Florida man named George Zimmerman fatally shot an African-American teenager named Trayvon Martin. Though Zimmerman argued for his innocence on the basis of self-defense—not on the basis of stand your ground— the anti-gun media took the opportunity to criticize Florida’s self-defense law. The courts acquitted Zimmerman of all charges, which, thanks to the media, prompted nationwide protests.
Stand your ground laws seek to provide immunity to victims of violent assault, no matter where that assault takes place. Legal self-defense should not cost individuals thousands of dollars in legal fees. While stand your ground laws can obviously be abused, they draw upon centuries-old principles of self-defense and the defense of others.
What’s Legal in my State?
I intentionally neglected to provide a list of states under each category. State law is complex, and each state includes different language that seeks to address a wide variety of scenarios. If you want to know whether you live in a castle doctrine-only state or a stand your ground state, I suggest following these steps:
- Talk to a lawyer. This is the best move. Deciphering the law can be difficult, and these folks are trained to do just that.
- Do the research. Don’t trust spammy websites like findthelawnow.com. You need to find the actual law on an official government website. Start by Googling “[state name] stand your ground.” You’ll likely be able to find a news article that lists the specific section of the penal code dealing with justifiable homicide or self-defense. Read that section and make sure you understand it.
- Consider getting CCW Insurance. There are several providers out there, but none more respected than our friends over at USCCA. Make sure to check them out.
Conclusion
To summarize, castle doctrine laws do not require a duty to retreat from the home, and stand your ground laws do not require a duty to retreat from public places. If your state has adopted the castle doctrine and you catch a home intruder, you can run away or stand and fight. The choice is yours. If you live in a stand-your-ground state, you have the same choice if you happen upon a mugging or you think you’re about to be mugged yourself.
The most important question you need to answer is, “Where do I have a duty to retreat?” If you know the answer to that question, you’re well on your way to understanding the self-defense laws in your state.
About the Author: Jordan Michaels is a new convert to the gun world. A Canadian immigrant to the United States, he recently became an American citizen and is happily enjoying his newly-acquired Second Amendment freedoms. He’s a communications professional, a political junkie, and an avid basketball fan.
If you live in a SYG state you should still practice avoidance and retreat if you’re outside your home if you possibly can. For one thing you’ll avoid all kinds of trauma. But secondly you might still get charged and convicted. A DA can argue that a “reasonable person” would have retreated. It’s happening.
SYG laws cannot be “abused.” SYG bars the prosecution of someone who, in an otherwise lawful use of lethal force, failed to retreat if such an option was available. (In other words, SYG operates against the state, not for the individual.) SYG is not a defense and it does not allow anyone to use lethal force when the use lethal force is not otherwise lawful. SYG cannot make an otherwise unlawful use of lethal force lawful. Because SYG is not a defense and cannot make an otherwise unlawful use of lethal force lawful, it cannot be abused. It is only applicable when lethal force was lawfully exercised despite having an avenue of safe retreat, and in that situation it prevents state action (prosecution for the use of lethal force when an avenue of escape was available) against the user of said force – it is not applicable in any other situation.
Of late have seen a number of states give over property rights to squatters over home owners. At this point, depending on the state, would consider the possibility that retreat might give the home invader RIGHT TO YOUR HOME in those states! Can easily see an argument being made that the home owner willingly left the premises, and so turned over possession of their home and belongings to the home invader. Especially in places like NYC!
SHTFU MARTIN B. go back to playing your Xbox with your “Tactical analysis”
Neither of which matters if you’re dead. The only law or doctrine that really counts is the one codified in the Constitution of the United States – the Second Amendment. The rest is superfluous legalese that only benefits the landed gentry, not we the people. As has been said, “It is better to be judged by 12 good men than carried out by six.”
It’s not really complicated and the are two very separate issues.
The “castle” doctrine simply says that if someone breaks into your home you are on firm ground if you shoot him. The standard rules of civilized behavior apply, presumably. By which I mean if someone breaks into my home I won’t actually shoot first unless, of course he’s actually attacking me. Rather, I’ll put a round into the floor to make it clear that I know what makes the thing go bang and that I ain’t afraid of a little mess. I probably wouldn’t shoot in the back if he ran at that point.
The “stand-your-ground” doctrine simply removes the idiotic “duty to retreat.” Under stand your ground, if some antifidiot with a club attacks you can just doubletap him rather than turning your back to run and giving him a shot at the back of your head.
I certainly hope you never try any of what you have posted here. You need to do some welll needed research and reading on the subjects and not just Internet commments and postings.
I would suggest “deadly force” and “excessive deadly force.” You might also pay heed to jury trails and outcomes.
“Stand you ground” does not mean that if one states they are going to kick your ass, you can shoot them.
I hope you did not pay too much for that bit of legal wisdom
, The law in most States does NOT allow for “Warning Shots” !! The general rule is if you are NOT justified in killing him,you are NOT justified in discharging your weapon.
Doing research on the existence of the castle doctrine and stand your ground laws in your state is good, but the author suggests that both concepts will be found it statutes. That may not necessarily be the case. California has its version of the castle doctrine codified in a statute, but the stand your ground law (yes even California has a stand your ground law) is a product of appellate court decisions going all the way back to the late 1800s. The clearest statement of this law is in the jury instruction which incorporates many years of appellate court decisions, so it provides another place to research.
I agree with the majority of the article, but why did you have to include that Trayvon Martin was ans African-American teenager when you didn’t identify Zimmerman’s race.
Excellent question!
Great article. To paraphrase A. Einstein, “if you cannot explain it to a 6th grader, you do not understand it yourself.” Great articles explain things in simple terms, without getting onto a lot of detail.
When these terms are used, people often relate them to a firearm. But when soneone askes me about this subject in my state, I tell them what I understand as a CCW perspective and explain that the class I took was real good info, even if you do not own a firearm. It is good to know when you can and cannot use deadly force in your state, and how connecting states vary. Many people think intetionally injuring someone, or
intimidating them with a firearm, club or knife is better than using deadly force. Which in my state, will most likely be the quickest way to end up being prosecuted.
Most of us good people do not wish to ever end another person’s life. There are very few exceptions and the exceptions are sick and need help. What ever the circumstances there is no substitute for Common Sense.
Speaking of medieval battle conditions, the majority of deaths occurred when one side broke and ran, allowing the pursuing enemy to attack the more lightly armoured back sides of the fleeing soldiers. Running away only works if you are definitely faster than a determined enemy. In the age of firearms, this disadvantage is even more marked. If you run away, you lose sight of what the enemy is doing, and the small distance you can run in a few seconds might not challenge their marksmanship. If you have run out of bullets, you might not have any choice, but you then have many more problems than can be dealt with in an article of this short length.