By Scott Brantley, Criminal Justice Program Co-Chair, Assistant Professor
Stand Your Ground
This type of defense was first enacted in 2005 (in Florida) at the behest of the National Rifle Association (NRA). This law has recently come to light there in the Trayvon Martin case where George Zimmerman has been charged with second degree murder of Martin. His defense is that he used deadly force because the “stand your ground” law in Florida allowed for that. Since Florida’s passage of this type of law, almost two dozen other states have followed. The pertinent part of Florida’s statute (Section 776.012 of Title 46) states as follows: “Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if: (1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.”
Many argue that this law is really unnecessary as the U.S. Supreme Court has actually held that if a person believes he/she is in imminent danger of death or bodily harm they have no duty to retreat and may use deadly force in self-defense. (see Brown v. United States, 1921). It may be that states that have these laws will find them more difficult than dealing with the self defense common law that has been in effect for years.
Castle Law Doctrine
In 2008 Ohio passed a crime bill (SB 184) which included a castle doctrine defense. Ohio Revised Code (ORC) Sec 2901.05 (B)(1) states in part that “a person is presumed to have acted in self defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force. “ Ohio Revised Code (ORC) Sec. 2901.09. (B) states that “For purposes of any section of the Revised Code that sets forth a criminal offense, a person who lawfully is in that person's residence has no duty to retreat before using force in self-defense, defense of another, or defense of that person's residence, and a person who lawfully is an occupant of that person's vehicle or who lawfully is an occupant in a vehicle owned by an immediate family member of the person has no duty to retreat before using force in self-defense or defense of another.”
I think in simpler language the above means that a homeowner who uses deadly force against an (uninvited) intruder is presumed innocent. In other words the burden is on the prosecution to prove otherwise. That is a complete reversal of prior law where the homeowner had an affirmative duty to prove self defense.
There are approximately thirty (30) states with similar laws. Florida also has its own version of the castle law doctrine (See Section 776.013 of Title 46). Virginia recently introduced legislation but it was defeated after extensive lobbying by pro gun rights’ activists. The Virginia law required that the homeowner prove some “overt act” on the part of the intruder. It is important to clearly understand the law in your state.
I was reading an article this morning on the ABA's website and it made me think about this blog: Montana adopted the castle doctrine law in 2009. Previously homeowners could use deadly force to protect themselves only if someone entered their home in a “violent, riotous or tumultuous manner,” the story says. The new law gives more leeway to homeowners, allowing them to use lethal force if they reasonably believe they are about to be assaulted.
“You don’t have to claim that you were afraid for your life,” Corrigan told the Times. “You just have to claim that he was in the house illegally. If you think someone’s going to punch you in the nose or engage you in a fistfight, that’s sufficient grounds to engage in lethal force.”
I wonder how many people know what the "castle doctrine" is in their state?
October 26, 2012 aA 9:46 AM