Today I offer you a guest post by Amie Gibbons, a fellow author who had just published her first full-size novel. Considering her unique expertise, I have asked Amie to share her thoughts on self-defense with my readers. The subject comes up frequently in public discourse while being a popular subplot in thriller novels and action movies. Whether you are a curious reader, an author looking to add veracity to your works, or simply a concerned citizen, I believe you will find this information both enlightening and useful.
Don’t forget to check out The Gods Defense, the first book in Amie's new series about what happens to law and society when the ancient gods and magic wake up.
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SELF DEFENSE LAWS: CASTLE DOCTRINE, STAND YOUR GROUND, AND THE DUTY TO RETREAT
Nothing in here is meant to be taken
as legal advice and it is all extremely general statements of complex and
often fact specific laws. I can not stress that enough, especially in
a post like this where the laws vary wildly by state and the line
between self defense homicide and murder relies so heavily not only on the
exact facts of the situation but the perception of those.
Nothing in here is meant to incite anything
or to encourage any kind of homicide (basically, nobody point to my post
later on and say, “She said I could!”). If you are easily offended by
someone saying you get to shoot bad guys, don’t read this, because I don’t want
to deal with the whining and people getting their feels hurt (New
Saying: Argue Facts not Feels). Also, we’re discussing a private
citizen’s right to self defense, as in homicide you argue was justifiable under
the circumstances because you were under attack, not how to get
away with murder or anything having to do with police.
First up: Castle Doctrine!
This was my favorite doctrine in all of 1L Torts. My friends said the
Amie battle cry was, “Castle Doctrine!” There was a running joke about me
having a pet tiger behind the door to take out intruders.
Okay, serious now. This is the
idea that your home is your castle (and it comes up far more often in criminal
law than in torts, I just happened to take torts first). The majority of
states have some sort of Castle Doctrine, which basically allows you to use
self defense, including and up to deadly force, on someone if they break into
your home with you there. The theory behind this is you can assume
someone breaking into your home while you are there means to do you harm.
You don’t have to wait to be attacked or try to get away first, because it’s
your castle.
This doesn’t apply to your home when
you’re not in it, like having a loaded gun behind the door rigged up to shoot
if anyone opens it. So it begs serious questions about what happens if
you come home with someone there and shoot them. (A general rule is you
don’t get to kill someone to defend just property, that’s why no traps to kill
people when you’re not home. What you’re supposed to do against a bigger
opponent running off with your stuff when you walk up and they just finished
burglarizing your home is beyond me.)
Obviously the rule varies by
state. A state may have a Castle Doctrine, but a diluted one, like you
would have to have reason to believe the person is there to harm you before you
shoot them as opposed to thinking they’re merely stealing something. Some
states don’t have a Castle Doctrine, you’d have the same duty to retreat as
elsewhere (which is stupid, where are you going to flee if not to the safety of
your home, but whatever, that’s why I don’t live in those states).
Now, this gets very convoluted even
in states with strong Castle Doctrines (come on, it’s law, you’re not surprised
by this). What if you knew the person? You can claim they broke in
illegally, but if you were friends or lovers, the Prosecution (I say that
instead of the cops because the cops could arrest you and then the Prosecutor
could drop it later because cops don’t know the law like a lawyer does, they
just know their training) may not believe they were breaking in and indict you
anyway, leaving it for the jury to decide.
What if the thief saw you and tried
to leave and you shot them in the back? If the statute doesn’t address
this, it’s for the courts to interpret if you could shoot a fleeing person, and
if they say no then it’s up to the jury to decide if they believe the person
was fleeing. Maybe the person wasn’t running, you shot and that spun them
and you kept shooting or they were running out with your stuff or you were in
shock, whatever the reason, the Prosecution may decide to charge you and sort
it out later.
These don’t even touch on if you
live together and your partner attacks you (domestic violence and the woman’s
right to defend herself will be discussed later because it deserves its own
post), or if a security guard shoots people breaking into a commercial property
such as a store. Those are treated as different areas of law with their
own rules. When it comes to the first one, those rules should be a bit
more bendy, but hey, another post, another time.
General Rule: It’s easier to justify
killing someone as self defense in your home than outside it (again, this
doesn’t include cases of domestic violence and battered women). Once
you’re outside the home, it’s a lot more complicated.
Number Two: Stand Your Ground.
This is where the state has laws allowing you to defend yourself without having
to try to flee first. Basically, you don’t have a duty to flee a possibly
dangerous scene; you have just as great a right to be in some public place as
anybody else and thus can keep yourself right there and defend yourself right
there.
But even then, self defense is murky!
States differ in their requirements for you to defend yourself with deadly
force. Some say something like you had to be in reasonable fear for your
life or serious bodily injury. Some say something along the lines of
protecting yourself from a crime upon your body or a violent crime. But
you can’t have started the physical altercation or at least you can’t have been
the one to escalate it to a deadly situation.
You see now why I say it’s so fact
specific. The state’s law is usually pretty clear in stating their
requirements like “reasonable fear,” “death or serious bodily injury,” and
“escalate the situation,” but what the hell do those terms mean?
As an aside: (Warning, warning,
Angry Amie Rant!) One argument I got on Facebook last year (and yes, this guy
was lucky he didn’t say this to my face) was that many rapes don’t count as
serious bodily injury and so women shouldn’t shoot their attackers.
Luckily the laws with terms like serious bodily injury include rape (as far as
I know from the ones I’ve looked up) under that so we don’t have to get into
that debate. The guy tried to backpedal, saying something like then I’d
have to agree that rape should be a death penalty crime. One, that’s a
logical fallacy, the law treats something used as a preventative measure
differently than something used to punish later on. Two, yeah, I do think
rape should be a death penalty crime. The Supreme Court disagrees with me
so no state can do that.
Okay, back to the law. Usually
the law will do something to help define terms like bodily injury or serious or
escalate. There will be guidelines, but these just set out a
framework. The actual facts of what happened are up to the jury. So
if a woman is walking to her car and gets grabbed by a big guy and she shoots
him, that’s usually something that’s considered justifiable self-defense under
the law.
This doesn’t mean the Prosecution
won’t indict her! She may have to go in front of the jury and prove the
affirmative defense of self-defense. What if he was just trying to steal
her purse and that state’s law doesn’t allow for self-defense unless there’s
the reasonable fear of serious bodily injury? She can argue in the heat
of the moment she feared for her safety, but the jury has to believe her.
How about in a bar brawl? Guys
of roughly equal size are being stupid and macho. They start to throw
punches, both basically started it and both could have just left (just because
the law doesn’t require you to leave before defending yourself doesn’t mean
it’s smart to stay). One guy gets the other to the ground and starts
beating his head into the sidewalk. Does the downed guy get to pull out
his gun and shoot the other one because it’s the only thing he can think to do
when it gets to this point? They both were fighting and then it
escalated. This one would probably go to the jury.
Depending on the
state’s specific laws on what counts as starting it and escalating it and what
the jury believes, he might get off as self defense or might get a lesser
charge like manslaughter.
The jury decides what is reasonable
considering all the evidence presented to them in the situation. They get
to decide who to believe. The woman claims the guy was trying to rape her,
but the security camera shows him going for her purse and twisting like he’s
going to run soon as he snatches it. The jury has to decide what’s
reasonable for the victim to believe in that moment.
And Three: Duty to
Retreat. (It is either two or three in a state; I can’t imagine a
scenario where a state could logically have both.) These are states that
say to claim self-defense you had to have tried to leave the situation
first. Again, that’s just a very general description.
This is where the guy in the bar
fight would have had to try to leave. But leave when? When the
fight started? When the fight escalated to deadly force? It depends
on the state and what courts have dealt with in interpreting statutes.
The state may say in the statute that a person has to try to leave when the
fight starts, or the state may not have addressed this, or may have waffled
around it with vague language hoping the courts would deal with it later.
It’s easy to say the person should
try to leave the situation first, but hard to determine what counts as that in
practice. And harder still to prove!
In conclusion, in cases of
self-defense there are different laws in different states and you just have to
look your state’s up. Usually you can find the statutes online with a
quick Google of terms like [state] laws on self-defense, castle doctrine, and
stand your ground. Even then, it gets so fact specific that nobody can
guarantee you will or won’t get charged with murder in a specific scenario.
Once it’s in front of a jury, your lawyer does her damndest to prove your fear
in that situation and that you were reasonable in your defense.
It depends on the state. It
depends on the situation. And once you get down to what’s reasonable,
fair or not, it depends on what it looks like. In self-defense cases
perception means a whole hell of a lot. A small woman, a person in a
wheelchair, an elderly gentleman, someone who’s already severely injured, are
all going to have an easier time convincing a jury they were in fear and had no
other recourse but to shoot someone (even if the state law doesn’t require you
believe there be no other recourse specifically, it’s usually a good selling
point for the jury), than a normal or bigger sized guy in normal health.
Bottom line, you’re going to do what
you need to do in the situation. When you’re sorting it out later is when
the specific laws of your state and how you think the cops are interpreting the
situation matter, and then you hire a damn good attorney.
About the Author:
Amie was born and raised in the Salt Lake Valley. She started making up stories before she could read and would act them out with her dolls and stuffed animals. She started actually writing them down in college, just decided to do it one day and couldn't stop.
She took an unplanned hiatus from writing when she went to Vanderbilt Law School and all of her brain power got consumed by cases, statutes, exams, and partying like only grad students in Nashville can. She graduated and picked her writing back up as soon as her brain limped back in after the bar exam.
She loves urban fantasy and is obsessed with the theory of alternate realities. Whether or not she travels to them in the flesh or just in her mind is up for debate. She spends her days living the law life and her nights writing when she's not hitting downtown Nashville to check out live music or inflict her singing on the crowds at karaoke bars. She lives with a cat trapped in a man's body, who doesn't complain about being trapped since it allows him the use of opposable thumbs to work his camera, and his best friend, a man trapped in a cat's body, who complains about his lack of opposable thumbs daily.
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