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"Castle Doctrine" Legislation: Protecting Your Right to Protect Yourself

Sunday, April 1, 2012

By now, most of you have heard about one young Oklahoma mother’s brush with death on New Year’s Eve at the hands of a man who, reportedly high on drugs, broke into her remote home and came at her and her infant son with a large knife.

Realizing the man was trying to break in, she barricaded the door with a couch, called 9-1-1, and pleaded with the dispatcher to send help. Running out of time, she asked whether she could shoot the intruder if he broke down the door, and was told, “Do whatever you can do to protect yourself… [D]o what you have to do to protect your baby.” Sheriff’s deputies rushed to her, but by the time they arrived, the assailant had breached the door, Sarah Dawn McKinley had seen his weapon and fired her gun.

McKinley wasn’t charged with a crime after killing the intruder, presumably because it was plainly obvious to investigators and the prosecutor’s office that she had acted in self-defense only after doing everything she reasonably could to avoid having to pull the trigger. At least intuitively, she understood that under state laws, homicide is generally  justifiable only as a last resort, after all other reasonable, available measures have been taken to avoid the use of force. Police, prosecutors, judges and juries tend to take a dim view of the use of armed force when it is premature, excessive, inspired by anger or otherwise shows bad judgment.

In McKinley’s case, however, she had more protection from prosecution than just the common sense and good intentions of the law enforcement officers and D.A.’s office that investigated the confrontation into which she was unwillingly dragged; she had the law.

A long-standing Oklahoma law states that a homicide is justifiable when in defense of one’s self or one’s child against a violent felony, including one within the home. However, while that might appear to provide perfect legal protection to many individuals who defend themselves against criminals, such is not the case. Under that law, which is similar to laws in some other states, McKinley would have been required to demonstrate not only that her assailant broke into her home, but that at the time of firing her shotgun she also reasonably believed that he posed an imminent threat of killing or inflicting “great personal injury” upon her or her child.

That’s better legal protection than none at all—but fortunately for McKinley and others in similar situations, Oklahoma also adopted an NRA-backed “Castle Doctrine” law in 2006. That’s the name given to a comprehensive set of laws that provide important legal protections to people who are forced to defend themselves.

Premised on the belief that people have “a right to expect absolute safety within their own homes or places of business,” Oklahoma’s 2006 law protects the right of a person to defend himself against an intruder who enters the defender’s home or business unlawfully and by force, without the defender having to demonstrate that he reasonably feared that the intruder was about to cause death or great bodily harm. The forceful and unlawful entry is enough to establish a legal presumption that the defender’s fear of serious injury was reasonable—and, therefore, that his defense against the criminal was reasonable as well. This shifts the risk away from the defender—who would otherwise have to consider not just his assailant’s actions, but also his assailant’s motives—and puts that risk where it belongs, on the attacker.

Oklahoma’s multifaceted law also contains a provision allowing a person to defend himself against “great personal injury,” and that provision isn’t limited to the home. Very importantly, the law also contains a “criminal immunity” provision that prohibits the arrest of a person who uses force in self-defense, unless “there is probable cause that the force that was used was unlawful.” And in deciding whether the force used against the assailant was lawful, the authorities have to consider not only the use of force itself, but also the person’s self-defense claim. Without this protection, people who defend themselves are more likely to be charged with crimes and, as the old sayings go, be forced to “tell it to the judge” and “let the jury sort it out.”

The naïve or uninformed might say that if a defender thinks he is innocent, he has nothing to fear from a judge and jury. But a murder trial puts the defendant at risk of a long prison sentence—or worse. A defendant in that situation can easily be tempted to plead guilty to a less serious felony, just to avoid the risk of a murder conviction, or even just to avoid sitting in jail for a long time while awaiting trial. Compounding the misery, the legal fees to go through this kind of nightmare can easily top $50,000.

Two years ago, a Wisconsin man learned that lesson the hard way, after fatally shooting an intruder who left threatening voicemail messages for the defender and the defender’s girlfriend earlier in the day. He then broke down a locked door and entered the house in which the defender and his girlfriend lived. Though most Americans would agree that the defender was justified in protecting himself and his girlfriend, he was charged with second-degree intentional homicide. Appallingly, a judge rejected the defendant’s motion to have the charge dismissed on grounds of self-defense. (Fortunately for the defendant, an appeals court dismissed the charges because law enforcement officers had failed to preserve the criminal’s threatening phone messages, which would have served as strong evidence that the defendant had acted reasonably.)

A fourth element of NRA-backed Castle Doctrine legislation is a “stand your ground” or “no duty to retreat” provision. This provides that, when an act of self-defense is otherwise lawful, and takes places in a location in which the defender is lawfully present, the defender is not required to retreat from a felonious attack, or the threat of an attack.

Without “stand your ground” protection, a defender can end up being a defendant, as happened in Wyoming not long ago. In that case, a landlord defended himself against a tenant he was trying to evict; the tenant manhandled him over a fence and continued to advance as the defender tried to get back on his feet. The prosecutor in the case—who had previously been a federal prosecutor in the Clinton Justice Department— argued that the use of a gun against an unarmed attacker cannot be justifiable. Just as outrageously, the prosecutor claimed that because the defendant was a competitive shooter and fired more than once, it meant that he premeditated the shooting. The defendant was convicted of first-degree murder and aggravated assault. (The defendant is now pursuing an appeal.)

A fifth element of NRA-backed Castle Doctrine legislation is a “civil immunity” provision, which protects defenders against lawsuits by their assailants or their assailants’ families. People worldwide are familiar with the story of English farmer Tony Martin, who, in addition to serving several years in prison for the fatal self-defense shooting of an intruder with a very long criminal record, was sued by the intruder’s accomplice, whom Martin wounded. While that story grabbed international headlines, similar, less widely publicized abuses of our civil courts take place in this country all the time.

Fortunately, Oklahoma is only one among a majority of states that have adopted NRA-backed “Castle Doctrine” laws over the last seven years. Florida, which can fairly be said to have launched the modern reform of state self-defense laws by adopting its Right-to-Carry law in 1987, continued in its trendsetting role in 2005 by adopting a comprehensive Castle Doctrine law. Fourteen more states adopted similar laws in 2006, five in 2007, three in 2008, one each in 2009 and 2010, and four in 2011. Along with Utah, which already had strong protections for lawful defenders, that makes a total of 30 Castle Doctrine states. Of those 30 states, 27 have general or limited “stand your ground” provisions, 13 have criminal immunity provisions and 21 have civil immunity provisions.

Currently, the NRA is working to enact Castle Doctrine legislation in Iowa and Virginia, and for improvements to existing Castle Doctrine laws in Alaska, Nebraska and Washington. Just as we work toward the day when all states allow all good citizens of age to carry firearms for protection, we will work until all states fully protect the right of law-abiding people to use force in defense of themselves and one another, without fear of prison or bankruptcy. Decent people have a right to nothing less.   

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