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View Full Version : 20 States have Passed the NRA's "Castle Doctrine" Laws!


Paladin
10-07-2007, 8:51 AM
And WV is trying to join the 20. The below from http://www.register-herald.com/local/local_story_273232939.html :

To date, the Castle Doctrine has become law in Florida, South Carolina, Georgia, Alabama, Mississippi, Louisiana, Tennessee, Kentucky, Indiana, Michigan, North and South Dakota, Kansas, Oklahoma, Texas, Arizona, Alaska, Idaho, Missouri and Maine.’

“And they were passed overwhelmingly on both sides of the aisle,” NRA spokesperson Ashley Varner says.

By far, the popular concept in those states has been the “stand your ground” approach that permits a homeowner to fire upon invaders at first sight. Another tack insists on a “duty to retreat” so that one must attempt to get out of danger, if possible, while issuing a warning to an intruder.

“Alaska is the only one that may require a duty to retreat,” Varner said. “All the others removed that duty to retreat.”

The NRA's model Castle Doctrine (http://www.nraila.org/Issues/FactSheets/Read.aspx?id=188) does 3 things:

One: It establishes, in law, the presumption that a criminal who forcibly enters or intrudes into your home or occupied vehicle is there to cause death or great bodily harm, so the occupant may use force, including deadly force, against that person.

Two: It removes the "duty to retreat" if you are attacked in any place you have a right to be. You no longer have to turn your back on a criminal and try to run when attacked. Instead, you may stand your ground and fight back, meeting force with force, including deadly force, if you reasonably believe it is necessary to prevent death or great bodily harm to yourself or others.

Three: It provides that persons using force authorized by law shall not be prosecuted for using such force. It also prohibits criminals and their families from suing victims for injuring or killing the criminals who have attacked them. In short, it gives rights back to law-abiding people and forces judges and prosecutors to focus on protecting victims.

M. Sage
10-07-2007, 9:33 AM
I'm still kind of surprised that CA allows for the first two. We just need the last one...

5968
10-07-2007, 1:11 PM
Ahhh, the good ole Castle Doctrine.

DedEye
10-07-2007, 2:53 PM
I'm still kind of surprised that CA allows for the first two. We just need the last one...

:iagree:

No kidding!

Zhukov
10-07-2007, 4:17 PM
I'm still kind of surprised that CA allows for the first two. We just need the last one...

I thought in California that if someone breaks into your house and you shoot them, you could still be potentially liable? And possibly prosecuted for defending your home (criminally, that is)

MrLogan
10-07-2007, 4:25 PM
We need to get that third point enacted in CA. Castle Doctrine!

M. Sage
10-07-2007, 8:21 PM
I thought in California that if someone breaks into your house and you shoot them, you could still be potentially liable? And possibly prosecuted for defending your home (criminally, that is)

That would be the third point. CA has a "presumed threat" when someone has forcibly entered your home and you're in it, and no duty to retreat. It's just that immunity from frivolous lawsuits and over-zealous prosecution that we lack.

want_ar
10-07-2007, 8:43 PM
"Three: It provides that persons using force authorized by law shall not be prosecuted for using such force."

What is the definition of "force authorized by law"?

Paladin
10-07-2007, 10:14 PM
I'm still kind of surprised that CA allows for the first two. We just need the last one...Correct me if I'm wrong, but while CA has the first two points in regard to the historical Castle Doctrine (where "your home is your castle"), I don't think it has the first two points of the NRA's model Castle Doctrine (emphasis added below):

One: It establishes, in law, the presumption that a criminal who forcibly enters or intrudes into your home or occupied vehicle is there to cause death or great bodily harm, so the occupant may use force, including deadly force, against that person.

Two: It removes the "duty to retreat" if you are attacked in any place you have a right to be. You no longer have to turn your back on a criminal and try to run when attacked. Instead, you may stand your ground and fight back, meeting force with force, including deadly force, if you reasonably believe it is necessary to prevent death or great bodily harm to yourself or others.

Three: It provides that persons using force authorized by law shall not be prosecuted for using such force. It also prohibits criminals and their families from suing victims for injuring or killing the criminals who have attacked them. In short, it gives rights back to law-abiding people and forces judges and prosecutors to focus on protecting victims.

Why does that matter? If you live in one of the many "Reasonable Issue" counties in CA and have a CCW, or are looking forward to the day when CA joins the 40 other "Shall Issue" states, getting those bolded items above -- along w/point 3 -- are critical.

CSDGuy
10-07-2007, 10:20 PM
California already has 2 of the 3 provisions in the law. It's the protection from civil suit that doesn't exist here.

Paladin
10-07-2007, 10:39 PM
California already has 2 of the 3 provisions in the law. It's the protection from civil suit that doesn't exist here.Can you give me the case or statute that applies it to anywhere you are legally entitled to be? IIRC, those two points only apply to your home (and possibly place of business). They do not apply to you in your car, walking along the street, etc. I could be wrong, and no offense intended, but before I'll rely upon your opinion, I'd like a citation.

Frankly, I'd LOVE IT if you are correct.

Paladin
10-07-2007, 10:46 PM
Even what we have -- that I believe applies ONLY to your residence (and possibly place of business) -- sounds a LOT weaker than the NRA's model Castle Doctrine.

From (italics added):
http://www.calgunlaws.com/modules.php?name=FAQ&myfaq=yes&id_cat=3&categories=Use+of+Force

Question
· Can I lawfully shoot anyone who comes into my home?
· When can I use my firearm for self defense?

Answer
· Can I lawfully shoot anyone who comes into my home?

Section 198.5 of the Penal Code creates a legal presumption that you acted out of a fear for your life and that the use of lethal or great force was justifiable only under the following conditions: The intruder (one who is not a family member or otherwise lawful resident) illegally and forcibly entered the premises for an unlawful purpose, i.e. burglary, robbery, assault, rape, etc., and the intruder presents a threat to life or of great bodily injury. Remember, however, that the presumption can be overcome. It merely makes a prosecutor's job more difficult. California law does not allow the use of deadly force to defend property.
[ Back to Top ]

· When can I use my firearm for self defense?

That is a complicated question, but generally the use of deadly force is only justified if you have "reasonable belief that you are in imminent danger of great bodily injury or death" from an attacker. That means that threats to do something to you later don't count, nor do threats of non serious injuries justify deadly force. In general, California requires that the force used be "reasonable," and that usually means the minimum amount necessary to neutralize that threat. Threatening to use a firearm unreasonably, even with no intention to actually do so, could result in you being charged with brandishing a firearm. "Brandishing" carries a minimum three (3) month jail sentence and may result in forfeiting your right to possess a firearm for ten years.
[ Back to Top ]

want_ar
10-07-2007, 10:49 PM
"Section 198.5 of the Penal Code creates a legal presumption that you acted out of a fear for your life and that the use of lethal or great force was justifiable only under the following conditions: The intruder (one who is not a family member or otherwise lawful resident) illegally and forcibly entered the premises for an unlawful purpose, i.e. burglary, robbery, assault, rape, etc., and the intruder presents a threat to life or of great bodily injury."

I wonder how you guess this. I suppose you could ask the intruder.

Homeowner: "Hey dude, did you break into my house to commit a burglary, robbery, assault, or rape?"

Intruder: "No, I was passing by and was wondering what you thought about Kafka, so decided to let myself in"

:rolleyes:

Paladin
10-07-2007, 11:00 PM
See, compare what CA has re point one:

Section 198.5 of the Penal Code creates a legal presumption that you acted out of a fear for your life and that the use of lethal or great force was justifiable only under the following conditions: The intruder (one who is not a family member or otherwise lawful resident) illegally and forcibly entered the premises for an unlawful purpose, i.e. burglary, robbery, assault, rape, etc., and the intruder presents a threat to life or of great bodily injury.

to what the NRA's model Castle Doctrine has:

One: It establishes, in law, the presumption that a criminal who forcibly enters or intrudes into your home or occupied vehicle is there to cause death or great bodily harm, so the occupant may use force, including deadly force, against that person.

The NRA's model eliminates the need to wait for the criminal intruder to present "a threat to life or of great bodily injury" (the part I bolded in the CA quote above).

In answer to want_ar's question: BOTH CA's and the NRA's model require that the "intruder" be a criminal and have used force to enter for criminal purposes (e.g., you can't lock your wife outdoors and then use the Castle Doctrine to justify shooting her as she breaks a window to get back in). The intruder has to have no legal right to be in the residence. (Again, note that the CA law is regarding a residence, not while you're in your car, at church, at work, etc.)

want_ar
10-07-2007, 11:23 PM
In answer to want_ar's question: BOTH CA's and the NRA's model require that the "intruder" be a criminal and have used force to enter for criminal purposes (e.g., you can't lock your wife outdoors and then use the Castle Doctrine to justify shooting her as she breaks a window to get back in). The intruder has to have no legal right to be in the residence. (Again, note that the CA law is regarding a residence, not while you're in your car, at church, at work, etc.)

But the way the law is written, I don't see how I can guess the intruder's intent. Mere breaking and entering is not the same as "presents a threat to life or of great bodily injury."

If someone breaks and enters to steal your stuff but has no intention of harming you, seems like you can't do anything about it.

Another scenario.

Homeowner: "Oh hi, who are you and what do you want?"
Intruder: "Oh, I broke in to steal your electronics. I also heard that you have a collection of quite decent rare scotch. I didn't know you were going to be around, sorry, have a nice day. Didn't mean any harm. I'll let myself out."

I am being facetious, of course, but seems like the homeowner is not allowed to use deadly force in this case either.

Paladin
10-07-2007, 11:30 PM
But the way the law is written, I don't see how I can guess the intruder's intent. Mere breaking and entering is not the same as "presents a threat to life or of great bodily injury."

If someone breaks and enters to steal your stuff but has no intention of harming you, seems like you can't do anything about it.Right. As I understand it, CA's current Castle Doctrine requires that the threat before you can defend yourself w/deadly force whereas the NRA's model law doesn't.

Another scenario.

Homeowner: "Oh hi, who are you and what do you want?"
Intruder: "Oh, I broke in to steal your electronics. I also heard that you have a collection of quite decent rare scotch. I didn't know you were going to be around, sorry, have a nice day. Didn't mean any harm. I'll let myself out."

I am being facetious, of course, but seems like the homeowner is not allowed to use deadly force in this case either.Correct, for CA's Castle Doctrine, not for the NRA's, as I understand it.

AS WITH ALL MY POSTINGS ON THIS FORUM, NOTHING I WRITE IS TO BE CONSTRUED AS GIVING LEGAL ADVICE SO DON'T TRY TO SUE ME FOR PRACTICING LAW WITHOUT A LICENSE.

M. Sage
10-08-2007, 6:58 PM
But the way the law is written, I don't see how I can guess the intruder's intent. Mere breaking and entering is not the same as "presents a threat to life or of great bodily injury."

If someone breaks and enters to steal your stuff but has no intention of harming you, seems like you can't do anything about it.

Another scenario.

Homeowner: "Oh hi, who are you and what do you want?"
Intruder: "Oh, I broke in to steal your electronics. I also heard that you have a collection of quite decent rare scotch. I didn't know you were going to be around, sorry, have a nice day. Didn't mean any harm. I'll let myself out."

I am being facetious, of course, but seems like the homeowner is not allowed to use deadly force in this case either.

That scenario is burglary under CA law. The easily-understood definition of what burglary is in CA: If a person enters a home, vehicle, trailer or structure with the intent to steal things. Technically, in that facetious scenario, once the intruder admits to intent to steal your electronics, you can smoke him/her as they're in the middle of committing a burglary. :43: :p (Obviously, this section is somewhat farcical, too.)

I do know of one case of a would-be shoplifter being arrested, charged and convicted of burglary. They could prove intent because he was back to steal more, and was carrying an empty duffel bag to fill with stuff.

I'll have to break out my copy of Machtinger's book, but it's about six inches beyond my reach right now (and I need to run to Trader Joe's, or the wife will kill me). I'm pretty sure he sites code that creates a "presumed fear" if you and an intruder are inside your residence at the same time. I'm pretty sure the duty to retreat is covered. IIRC, there is no specific part of the law that says you have no duty to retreat, but nor is there a part that says you are bound to retreat.

Obviously, if retreat were a reasonable option, I don't think most of use would resort to force.

ETA: Here it is:

198.5. Any person using force intended or likely to cause death or
great bodily injury within his or her residence shall be presumed to
have held a reasonable fear of imminent peril of death or great
bodily injury to self, family, or a member of the household when that
force is used against another person, not a member of the family or
household, who unlawfully and forcibly enters or has unlawfully and
forcibly entered the residence and the person using the force knew or
had reason to believe that an unlawful and forcible entry occurred

Anybody breaks into your home, or has broken into your home, and you're in there with the intruder, even CA law agrees that they're probably up to no good.

Interesting that what Paladin posted seems to be a summary of 198.5, but the actual text is a lot broader than that summary. Where'd you get that, anyway?

Oh, and to avoid confusion: I'm not saying I don't want some changes in CA's self-defense laws, I'd be thrilled to have several, but at least they're not as bad as they could be, or as bad as most people assume.

Paladin
10-08-2007, 8:38 PM
I'll have to break out my copy of Machtinger's book, but it's about six inches beyond my reach right now (and I need to run to Trader Joe's, or the wife will kill me). I'm pretty sure he sites code that creates a "presumed fear" if you and an intruder are inside your residence at the same time. I'm pretty sure the duty to retreat is covered. IIRC, there is no specific part of the law that says you have no duty to retreat, but nor is there a part that says you are bound to retreat.

Obviously, if retreat were a reasonable option, I don't think most of use would resort to force.

ETA: Here it is:



Anybody breaks into your home, or has broken into your home, and you're in there with the intruder, even CA law agrees that they're probably up to no good.

Interesting that what Paladin posted seems to be a summary of 198.5, but the actual text is a lot broader than that summary. Where'd you get that, anyway?I provided a link to the original source, calgunlaws, in my post (#12) above.

While CA law, acc to calgunlaws.com, does grant you a presumption of fear, it does not presume that the intruder intends to cause death or grave bodily harm, as the NRA's model law does.

Also, note that the NRA's model law applies to wherever you can legally be (e.g., in your car, at a restaurant, in a public bathroom, at the gym, at church, etc.). Too many people here have said CA already has 2 of the NRA's model law's 3 points -- not true. The NRA's law not only protects GGs from civil litigation, but also protects you away from your home (e.g., CCW'ers -- something that I hope to become one day).

Thus, Sacto needs to reform our "Castle Doctrine" law too.

N6ATF
10-09-2007, 12:28 AM
What I was taught by an ex-cop was that if the burglar runs away, you can't shoot him in the back. But if he advances on you (and you're smart enough to have not stood in his path of retreat), blast him.