Saturday, July 10, 2010

Do You Have the Right to Defend Yourself and Your Home?


On Penn and Teller's Martial Arts Episode, they said that defending yourself will get you tried for manslaughter. We decided to do some research and let the LAW do the talking.

Castle doctrine From Wikipedia, the free encyclopedia and edited by Bill Pehush, SDC researcher

A Castle Doctrine (also known as a Castle Law or a Defense of Habitation Law) is an American legal doctrine that arose from English Common Law[1] that designates one's place of residence (or, in some states, any place legally occupied, such as one's car or place of work) as a place in which one enjoys protection from illegal trespassing and violent attack. It then goes on to give a person the legal right to use deadly force to defend that place (his/her "castle"), and/or any other innocent persons legally inside it, from violent attack or an intrusion which may lead to violent attack. In a legal context, therefore, use of deadly force which actually results in death may be defended as justifiable homicide under the Castle Doctrine.

Castle Doctrines are legislated by state, and not all states in the US have a Castle Doctrine. The term "Make My Day Law" comes from the landmark 1985 Colorado statute that protects people from any criminal charge or civil suit if they use force – including deadly force – against an invader of the home.[2] The law's nickname is a reference to the famous line uttered by Clint Eastwood's character Harry Callahan in the 1983 film Sudden Impact, "Go ahead, make my day."

When it's time to defend your Castle go HERE

Conditions of use

Each state differs with respect to the specific instances in which the Castle Doctrine can be invoked, and what degree of retreat or non-deadly resistance (if any) is required before deadly force can be used.

In general, one (sometimes more) of a variety of conditions must be met before a person can legally use the Castle Doctrine:

* An intruder must be making (or have made) an attempt to unlawfully and/or forcibly enter an occupied home, business or car.
* The intruder must be acting illegally—e.g. the Castle Doctrine does not give the right to attack officers of the law acting in the course of their legal duties
* The occupant(s) of the home must reasonably believe that the intruder intends to inflict serious bodily harm or death upon an occupant of the home
* The occupant(s) of the home must reasonably believe that the intruder intends to commit some other felony, such as arson or burglary
* The occupant(s) of the home must not have provoked or instigated an intrusion, or provoked or instigated an intruder to threaten or use deadly force
* The occupant(s) of the home may be required to attempt to exit the house or otherwise retreat (this is called the "Duty to retreat" and most self-defense statutes referred to as examples of "Castle Doctrine" expressly state that the homeowner has no such duty)


When you have no other choice go HERE


In all cases, the occupant(s) of the home must be there legally, must not be fugitives from the law, must not be using the Castle Doctrine to aid or abet another person in being a fugitive from the law, and must not use deadly force upon an officer of the law or an officer of the peace while they are performing or attempting to perform their legal duties.

Note: the term "home" is used because most states only apply their Castle Doctrine to a place of residence; however, some states extend the protection to other legally-occupied places such as automobiles and places of business.

Immunity from civil lawsuit

In addition to providing a valid defense in criminal law, many versions of the Castle Doctrine, particularly those with a "Stand-Your-Ground clause", also have a clause which provides immunity from any lawsuit filed on behalf of the assailant for damages/injury resulting from the use of lethal force. Without this clause, it is possible for an assailant to sue for medical bills, property damage, disability, and pain and suffering as a result of the injuries inflicted by the defender, or for their next-of-kin to sue for wrongful death in the case of a fatality. Even if successfully refuted, the defendant (the homeowner/defender) must often pay thousands of dollars in legal costs as a result of such lawsuits, and thus without immunity, such civil action could be used for revenge against a defender acting lawfully.

The only exceptions to this civil immunity are generally situations of excessive force, where the defender used deadly force on a subdued, cooperative, or disabled assailant. A situation meeting this exception generally invalidates the criminal "castle defense" as well. In addition, someone who uses deadly force in self-defense is still liable for any damages or injuries to third parties who were not acting criminally at the time of the defensive action.

Duty-to-retreat

"Castle laws" remove the duty to retreat from an illegal intruder when one is lawfully in one's home.[3] Therefore, any state that imposes a duty to retreat while in the home does not have a "Castle law": the duty-to-retreat clause expressly imposes an obligation upon the home's occupants to retreat as far as possible and verbally announce their intent to use deadly force, before they can be legally justified in doing so to defend themselves.


When retreat is not an option go HERE


For states that do not require the announcement to be "verbal", other indicators may be used. These are typically not defined by statute, and would be left to the court's interpretation, but may include things such as laser sights or the cocking of a firearm. Care should be exercised in studying applicable individual state laws. In the majority of jurisdictions warning shots are illegal, and even brandishing the weapon in a threatening manner can result in criminal charges.

Stand-your-ground

Other states expressly relieve the home's occupants of any duty to retreat or announce their intent to use deadly force before they can be legally justified in doing so to defend themselves. Clauses that state this fact are called "Stand Your Ground", "Line In The Sand" or "No Duty To Retreat" clauses, and state exactly that the defender has no duty or other requirement to abandon a place in which they have a right to be, or to give up ground to an assailant. States often differentiate between altercations occurring inside a home or business and altercations in public places; there may be a duty to retreat from an assailant in public when there is no duty to retreat from one's own property, or there may be no duty to retreat from anywhere the defender may legally be.[4] Other restrictions may still exist; when in public, a person must be carrying the firearm in a legal manner, whether concealed or openly.

When it's time to stand your ground go HERE

"Stand your ground" governs U.S. federal case law in which self-defense is asserted against a charge of criminal homicide. The Supreme Court ruled in Beard v. U.S. (1895) that a man who was "where he had the right to be" when he came under attack and "...did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm...was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground."

In a Minnesota case, State v. Gardner (1905) where a man was acquitted for killing another man who attempted to kill him with a rifle, Judge Jaggard stated:

The doctrine of "retreat to the wall" had its origin [in Medieval England] before the general introduction of guns. Justice demands that its application have due regard to the general use of and to the type of firearms. It would be good sense for the law to require, in many cases, an attempt to escape from a hand to hand encounter with fists, clubs and even knives as a justification for killing in self-defense; while it would be rank folly to require [an attempt to escape] when experienced persons, armed with repeating rifles, face each other in an open space, removed from shelter, with intent to kill or cause great bodily harm

Justice Oliver Wendell Holmes, Jr. declared in Brown v. United States when upholding the no duty to retreat maxim that detached reflection cannot be demanded in the presence of an uplifted knife.

Most gun control groups, such as the Violence Policy Center and the Brady Campaign denounce "Stand-Your-Ground" clauses as "Shoot First" laws (as in "shoot first, ask questions later"), asserting that the presumptions and other protections afforded to gun owners allow them virtual carte blanche to shoot anyone who is perceived to be trespassing. They also claim it will lead to cases of mistaken identity, so-called "shooting the milkman" scenarios. Gun rights groups, such as the National Rifle Association claim that such scenarios are unlikely and are not protected under most Castle laws; the shooter is only justified if the assailant broke into the home or attempted to commit some other property crime such as arson, and simple trespass is neither.

Adoption by States

As of the 28th of May, 2010, 31 States have some form of Castle Doctrine and/or Stand Your Ground law. Alabama,[9] Alaska, Arizona, California, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Missouri, Montana, North Dakota, Ohio, Oklahoma, Rhode Island[10], South Carolina, South Dakota, Tennessee, Texas, Utah,[11] West Virginia and Wyoming have adopted Castle Doctrine statutes, and other states (Montana, Nebraska[12], New Hampshire, Pennsylvania and Washington) are currently considering "Stand Your Ground" laws of their own.

Some of the states that have passed or are considering "stand your ground" legislation already are considered "stand your ground" in their case law. Indiana and Georgia, among other states, already had "stand your ground" case law and passed "stand your ground" statutes due to possible concerns of the case law being replaced by "duty to retreat" in future court rulings. Other states, including Washington, have "stand your ground" in their case law but have not adopted statutes; West Virginia had a long tradition of "stand your ground" in its case law[16] before codifying it as a statute in 2008. These states did not have civil immunity for self defense in their previous self defense statutes.

Utah has historically adhered to the principles of "stand your ground" without the need to refer to this new legislation. The use of deadly force to defend persons on one's own property is specifically permitted by Utah state law. The law specifically states that a person does not have a duty to retreat from a place where a person has lawfully entered or remained.

In Oklahoma (according to the Oklahoma State Courts Network), the amendment changes a number of other aspects of the Oklahoma Self Defense Act, the statutes concerning justifiable homicide. As 21 O.S. 2001, Section 1289.25 now lists circumstances in which it is presumed that a person who uses deadly force "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." In addition, it helps to protect law-abiding citizens from arrest when using deadly force. Law enforcement agencies must now have probable cause to believe that the use of deadly force was unlawful before an arrest can be made.


When you have no other options....GO HERE


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2 comments:

Sensei J. Richard Kirkham B.Sc. said...

Though I missed the martial arts story I saw Penn and Teller do a story on Network Marketing last night. I finally decided there show truly is Bull*

They, themselves, are great marketers making generic statement to to hype up the viewers to sell more shows

Penn and Teller need to do a BS story on themselves

caustic soprano said...

Thank you for this discussion of Castle Doctrine, I'm now motivated to look into what the laws are in states I live in and visit. Kudos on being a scholar as well as an a** kicker.