The Castle Doctrine Will Protect Me!

[Glenn E. Meyer]

Interesting case in my hometown. It is sometimes put forward on the Internet that the Castle Doctrine is an impenetrable forcefield and magic cure that protects you when you open fire. You can shoot someone in your house no matter what, you can shoot through doors at unknowns. Maybe the unknown is a drunk but you are protected. Etc. We have old and recent threads to that effect.

But consider Ray Lemes (google him for a lot of stories). Here's one:

http://www.ksat.com/news/27125560/detail.html

Lemme's shoots Glass who was running from him or advancing. Entering the home or not entering the home. Lemme dashed out of his house to engage.
He wanted to detain the BG, told him to stop, according to some.

One shot was in the back.

Note some stories mention hollow point bullets.

Glass was claimed to be disoriented by the prosecution. He thought he was entering his sister's house a block away. He was intoxicated.

His lawyers claim the Castle Doctrine. The castle doctrine protects your house, all the shell casings were found in the street.

The parents abandoned a civil suit a few months ago.

------------

So, the castle doctrine may not be an automatic pass as some indicate. In this case, it seems (couched in caution by not hearing all the testimony and not being there), that shooter might have violated the strict tenets of the law.

Would it protect if the guy was in the house? It seems to me that the DA might still argue that the threat perception wasn't there in some case and that you still will go to trial. But who knows?

 

[Don P]

I would have to add that is why every situation is different. No 2 are the same, so IMO most of the what ifs presented at times as to what would you do are almost unanswerable. Only opinion and the posters thoughts on what he/she would possibly do.
Even here in FLA. with our Stand Your Ground Law for out side of the Castle a shot in the back would be a hard sell for self defense IMO

 

[HoraceHogsnort]

One must be familiar with the specifics of the laws in his/her state. They are not all the same. In Texas you can exit the house and shoot the perp who is walking off with your TV. In CA the "reasonable person" test will be applied although we do have a pretty good castle law against people who forcibly enter one's domicile. AND, it varies from county to county. A shop owner in Berkeley made what should have been a good shoot at a robber and was prosecuted. I've seen plenty of SD shootings here in Stanislaus county that did not result in criminal charges. As for the civil cases I cannot comment.

 

[Technosavant]

Had it happened in the house, I would expect that things might have been sufficiently tilted back to the homeowner that the prosecutor might not have filed charges. While there are many prosecutors who will file charges just to back up their own points of view, generally they will only file those that they have a chance of winning.

Even if the jury doesn't convict, I think there's plenty of second guessing to be done on this. He spotted the man outside and running away. At this point I think most of us would have disengaged and waited for the police. If the person returns to the home, then it will be dealt with then.

Castle Doctrine isn't to enable people to shoot anybody who has been on your property without your permission (although there are those who seem to salivate at the thought of shooting a neighbor's dog or the neighbor). Personally, from what is written in the story, I think the homeowner stepped outside the boundaries of what is allowable (I say this knowing nothing beyond the linked account, not even knowing the peculiarities of TX law). In MO, the homeowner would be in serious legal trouble, and we have a good castle doctrine law.

My rule of thumb: if a potential assailant is outside the walls of the home, you're better off not shooting (unless he's doing something like shooting through your windows or actively trying to enter despite warnings). Go following the person outside, and things get a LOT more complicated.

 

[Glenn E. Meyer]

Walking off with your TV in TX is probably not going to cut it. There are nuances in protecting property here. It's easily replaced.

 

[frick74]

I think on the surface, what the homeowner did was wrong, as it was presented in that article.

That said, I am not on the Jury, or privvy to the facts, outside the home, with no weapon, I wouldn't have shot.

 

[Brian Pfleuger]

I've always understood Castle Doctrine to essentially remove the require that the defender prove that there was a reasonable belief of an imminent and deadly threat... the threat may be "assumed" by the mere presence of the BG. However, it seems obvious to me that extenuating circumstances could easily negate the automatic assumption of a threat, such as if the BG is running away.

It's hard to believe that anyone with even a modest understanding of the legal system or any history of reviewing case law could believe otherwise.

 

[madmo44mag]

Simply stated "Know your state law and how it is interpreted"

 

[Aguila Blanca]

Her husband testified that his wife's screams awakened him and he grabbed a pistol and dashed out the front door. He said he spotted a man, later identified as Tracy Glass, in the street running from their home.

"I fumbled with the gun momentarily, then opened fire," Lemes testified. He said he fired because he was in fear for his life.

...

Lemes' lawyers said the shooting was justified under the Texas Castle Doctrine. The doctrine says that shooting an intruder is justified as a last resort if one is in fear of his life and protecting his family and property.

Either the reporter or Lemes' attorney doesn't understand what the castle doctrine is. Under the castle doctrine, unless the Texas version is different from most states (and from long-standing common law) there is no need to fear for your life. That's the test under other laws, for using deadly force in self defense. You don't need to claim that under the castle doctrine.

However, when the guy is running away from you in a public street, it's not a castle doctrine case. It's a deadly force case, and IMHO it's hard to claim "I feared for my life" if no overt threat has been made, no weapon has been shown, and the guy is running away.

One must be familiar with the specifics of the laws in his/her state. They are not all the same. In Texas you can exit the house and shoot the perp who is walking off with your TV.

\ONLY if you can show that shooting the thief was the ONLY way you could interrupt the crime and retain your property.

The entire statute was quoted in another thread here just a couple of days ago.

 

[Bartholomew Roberts]

Here is the portion of Section 9.32 of the Texas Penal Code explaining Texas Castle Doctrine (note that you need more than this to use lethal force in self-defense, this is just the Castle Doctrine portion):

Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON.

(a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or(
C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

So the key issue here, had it happened in the house, would be whether Lemmes knew or had reason to believe Glass entered "unlawfully and with force" or attempted to enter "unlawfully and with force." If he did not, then the automatic presumption that deadly force was immediately necessary is gone and Lemmes would have to demonstrate that fear to the jury.

Since this happened outside the house entirely, I don't see that Castle Doctrine is going to be very useful to Lemmes defense. He isn't going to get the automatic presumption that his fear was reasonable and will have to sell the jury that his fear was reasonable after he ran outside and opened fire on a guy running in the street.

Had it happened in the house, I would expect that things might have been sufficiently tilted back to the homeowner that the prosecutor might not have filed charges. While there are many prosecutors who will file charges just to back up their own points of view, generally they will only file those that they have a chance of winning.

Under Texas law, any homicide goes to the grand jury, regardless of whether the prosecutor files charges or not. Even in a clear cut case of self-defense he would have to face the grand jury.

Under the castle doctrine, unless the Texas version is different from most states (and from long-standing common law) there is no need to fear for your life. That's the test under other laws, for using deadly force in self defense. You don't need to claim that under the castle doctrine.

Instead of using the "immediate fear of death or serious injury" test, Texas law asks whether deadly force was "immediately necessary" to protect you from unlawful deadly force or to prevent the imminent commission one of several crimes. In practice, it ends up being very similar to the "immediate threat of death or serious injury" test.

The Texas version of Castle Doctrine, like many other versions, says if you meet the conditions "the actor's belief that the deadly force was immediately necessary... is presumed to be reasonable."

So there is still the need for an immediate fear of death or serious injury, however, instead of having to show that deadly force was necessary to protect yourself from unlawful deadly force to a jury and let them decide whether it is reasonable, it is presumed to be reasonable if certain conditions are met (the person unlawfully and with force entered your home). Also note that presumptions are rebuttable - if evidence can be offered that deadly force was not immediately necessary.

 

[carguychris]

ONLY if you can show that shooting the thief was the ONLY way you could interrupt the crime and retain your property...The entire statute was quoted in another thread here just a couple of days ago.

+1. I'll rehash the relevant part.

§ 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property... to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

(emphasis mine)

• It must be nighttime.
• The perp must HAVE the stolen goods. If he/she doesn't have the goods, or he/she drops the stolen items, the justification for using deadly force ceases.
• Can the property be recovered by other means? It's only a TV set. Is it insured? Can you outrun a man or woman carrying this presumably heavy TV set? If you yelled "I HAVE A GUN, STOP OR I SHOOT" (without displaying the firearm), maybe he/she would drop it? What about the neighbor standing up the street, would the perp panic and drop the goods if you yelled "STOP THE THIEF"?
• Is there reasonable justification to conclude that the perp has the means and intent to inflict dire physical harm to you if you attempt to use other means to recover the property?

 

[Bartholomew Roberts]

carguychris, great rundown on the law there. One minor detail though:

It must be nighttime.

That part only applies to theft and to prevent the imminent commission of criminal mischief at nighttime. Deadly force can be used to protect property from arson, burglary, robbery, or aggravated robbery either day or night, provided you meet all the other requirements of the statute (including meeting all the requirements for use of non-lethal force under 9.41)

 

[Kreyzhorse]

His lawyers claim the Castle Doctrine. The castle doctrine protects your house, all the shell casings were found in the street.

I'm not buying Castle Doctrine on this one. When you run into the street and shoot some one fleeing (or not) it's not in self defense.

In Kentucky the Castle Doctrine means that you have to reasonably believe that you are in danger of great harm and or death. I don't see that this gentleman was in either at this point.

 

[Evan Thomas]

I've been under the impression that the point of the Castle Doctrine, in Texas and elsewhere, is that it relieves the occupant of a house from the duty to retreat from a threat. In other words, if someone violently breaks down the door and enters your house when you're there, (a) there's a presumption that their having done so constitutes a threat against which you're justified in using deadly force to protect yourself, and (b) that in your own home, you should not be required to retreat from such a threat in preference to defending yourself with force.

But there has to be a threat.

As Dr. Meyer suggests, if the presumption in (a) isn't met in a particular case, you may not be on very firm legal ground. Kids and drunks -- the "Oops, wrong house" thing -- are the obvious examples.

And in case in which all the shell casings were recovered in the street, and the "alleged perpetrator" was shot in the back... I fail to see how the Castle Doctrine applies. "I thought he might come back" doesn't remotely cut it as a justification for shooting someone.

 

[Alaska444]

I would not shoot someone over a TV even if in Texas where you can defend property in some instances. Here in CA, if you followed some one outside, get ready to sit inside a nice little office with protective bars for a good long time.

 

[Aguila Blanca]

As Dr. Meyer suggests, if the presumption in (a) isn't met in a particular case, you may not be on very firm legal ground. Kids and drunks -- the "Oops, wrong house" thing -- are the obvious examples.

I don't see kids or drunks as obvious examples at all.

Under the castle doctrine as it exists in most states and under common law precedent, as you summarized it basically boils down to "You don't have to retreat in your own castle." If the Huns are pounding on the gate, it is legally presumed that they mean to rape, pillage and plunder and you don't need the King's blessing before pouring the boiling oil from the ramparts.

A drunk who thinks he is at his own house when he's actually at a similar house two blocks away may make a LOT of noise trying to open "his" front door. If it won't open, like Obama's Harvard professor friend, the drunk may even decide to break into "his" own house.

If "his" house is in actuality MY house, and I'm inside and hear him trying to break through MY door -- I don't think there is any legal OR moral requirement for me to ascertain whether or not the Hun outside my gate is just a harmless drunk before I take defensive action. The law as cited for Texas certainly doesn't require that. The Hun is attempting forcible entry into MY house -- my "castle." I am allowed to defend my castle. If the Hun doesn't want to get shot, he shouldn't get so drunk he can't find his own house.

 

[OldMarksman]

Mistrial--starting over.

 

[OldMarksman]

If the Huns are pounding on the gate, it is legally presumed that they mean to rape, pillage and plunder and you don't need the King's blessing before pouring the boiling oil from the ramparts.

It is presumed that the resident has a basis for a reasonable belief to that effect, but that presumption is rebuttable.

 

[carguychris]

That part [it must be nighttime] only applies to theft and to prevent the imminent commission of criminal mischief at nighttime. Deadly force can be used to protect property from arson, burglary, robbery, or aggravated robbery either day or night, provided you meet all the other requirements of the statute (including meeting all the requirements for use of non-lethal force under 9.41)

You are absolutely correct about an imminent crime, but I was only addressing a case where the perp is seen fleeing with stolen goods. Imminent crimes are addressed in § 9.42(2)(A), whereas a fleeing thief is addressed in § 9.42(2)(B)...

...to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property...

IMHO according to the way I read it, TX law only allows the use of deadly force against a fleeing thief if it is nighttime and a laundry list of other conditions are satisfied.

I'll quote a list posted by JohnKSA in the other thread...

You can use deadly force to recover property stolen in a burglary, stolen in a robbery or stolen in a theft that took place during the nighttime ONLY if ALL of the following conditions apply:

* You were in lawful possession of the property in question prior to the incident AND
* You reasonably believe that only force can recover the property AND
* You reasonably believe that immediate action is necessary to recover the property AND
* The force is used in "fresh pursuit" AND
* You reasonably believe the person taking the property has no legal claim on it (i.e. no shooting the repo man) OR you know he took it by force, threat or fraud AND
* You reasonably believe that deadly force is immediately necessary to recover the property AND
* You reasonably believe that only the use of deadly force can recover the property OR that using any other method (besides deadly force) would expose you or another innocent to substantial risk of serious injury or death.

FWIW the first 5 conditions come from § 9.41, the last 2 from § 9.42.

 

[Bartholomew Roberts]

I think we are confusing two separate concepts here: duty to retreat and Castle Doctrine. They are similar; but not identical. And even courts have confused them in the past, which doesn't help.

The duty to retreat is an old English common law doctrine. The basic idea is that if you are in a public place, you have a duty to avoid confrontation by retreating, if you can do so safely. As a general idea, it is still a good tactic; but in legal cases it tends to create a lot of grey area - allowing juries with piles of evidence days to determine what the person in question had only fractions of a second to decide. As a result, many states have chosen to limit or eliminate the duty to retreat under what is known as "Stand Your Ground" laws. Under English common law, the duty to retreat never applied inside one's home. Under American law, the duty to retreat for the most part also didn't apply to one's home, though courts have misapplied the doctrine as well so you get some weird cases in certain non-self-defense friendly states where courts have found a duty to retreat if you invited the person into your home, a duty to retreat from your own front door into your home, or a duty to retreat in your own yard.

The second doctrine is the old English common law doctrine that Coke described as "A man’s house is his castle and fortress, et domus sua cuique tutissimum refugium.” and much like the modern version of the doctrine, the basic concept is that no one may enter your home without permission. The modern version of Castle Doctrine usually does this by saying that if someone forcibly enters your home, you are automatically presumed to have a reasonable fear of death or serious injury.

These are both VERY general descriptions of the concept. Each state words their laws on these subjects slightly differently and these minor differences can often have a major impact on the outcome of a particular set of facts. This is why a gunowner needs to be very familiar with his own state's laws on the use of force and be wary of relying too much on Internet generalities. Guys who CCW across multiple state lines have an even bigger issue.

However, if you can't remember all of those minor distinctions, the generic rules at www.corneredcat.com are worth remembering and using.