FLORIDA - Castle Doctrine expands rights of citizens to defend themselves

Castle Doctrine expands rights of citizens to defend themselves Presumption of belief, no liability for self-defense

Richard Moore Investigative Reporter When Gov. Scott Walker was campaigning last year, he proclaimed his support for legislation giving citizens broad new legal protections for defending themselves in their homes against unwanted intruders. The notion is called the Castle Doctrine, and Walker promised he'd sign such a bill into law if he was elected and the Legislature passed it. "Homeowners should take comfort in knowing that their home is truly their castle, which is why I support citizens' rights to protect themselves in their own homes and anywhere they have a legal right to be, by adopting a strong Castle Doctrine law," Walker said. Well, elected he was, and last month, on Dec. 7, after passing both chambers of the Legislature with bipartisan support, Walker did indeed sign the still controversial bill into law. The measure took effect on Dec. 21. In so doing, Wisconsin became the 30th state to adopt a Castle Doctrine legal principle, and the National Rifle Association, which had pushed for enactment, hailed its passage. "Gov. Walker and Wisconsin lawmakers know that law-abiding citizens must have the right to protect themselves when criminals attack, without fear of being second-guessed by an overzealous prosecutor," said Chris W. Cox, executive director for the NRA's Institute for Legislative Action. "Crime victims don't have the luxury of time when confronted by a criminal - they need to know that the law is on their side. The Castle Doctrine statute accomplishes that by clarifying that crime victims may defend themselves without first being required to retreat." The NRA has led the nationwide movement to pass Castle Doctrine legislation starting with Florida in 2005. Wisconsin's neighbors, Illinois, Minnesota, Iowa and Michigan, all have a version of the law. The state Senate passed the measure on a bipartisan 26-7 tally. Democratic Sen. Jim Holperin of Conover and liberal Democratic Sen. Lena Taylor of Milwaukee both supported the bill. All totaled, nine Democrats voted for passage. The bill passed the Assembly on a 71-24 bipartisan vote. So just what is it? Still, as we head into the new year, many citizens don't realize a Castle Doctrine law has been enacted - concealed-carry efforts dominated the news media headlines instead - and even those who have heard of it aren't exactly sure what rights and protections the law affords them. So here are the fundamentals. Under Castle Doctrine legislation, a court must presume that a homeowner using force against an intruder believed such force was necessary to prevent death or great bodily harm. The person against whom the force was used must have unlawfully and forcibly entered the residence, and the homeowner must have known or have reasonably believed an unlawful and forcible entry was occurring. Otherwise, the homeowner/victim could be liable both criminally and civilly. The court's presumption of belief in favor of homeowners marks a distinct shift in the law. Under the old statutes, the burden in court fell upon a victim to prove that he or she reasonably believed the use of force was necessary even when an unlawful and forcible invasion of the victim's home was taking place. There are caveats. A property owner may only use force intentionally, or threaten to use force, if the person reasonably believes it is necessary to prevent or terminate the intrusion, according to a state legislative analysis. The person may not intentionally use force that is intended or likely to cause death or great bodily harm unless he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself. In addition, the presumption will not apply if the person who uses the force is involved in a criminal activity or is using the residence to undertake a criminal activity, or if the individual against whom the force is used is a law enforcement officer engaged in official duties. Enlarging the castle Beyond the basic parameter of essential self-defense in the home, there were other changes that broadened the scope of Castle, and last month the state Legislative Council produced a memo to clarify and catalog those changes. The report was prepared by senior staff attorney Jessica Karls-Ruplinger on Dec. 13. Specifically, Karls-Ruplinger wrote, the law entitles those who act in self-defense under certain defined circumstances to a presumption of immunity for both criminal and civil liability, and not just in situations where the victim believes force is necessary and not just in the home. "Under current law, a person is privileged to threaten or intentionally use force against another to prevent or terminate what the person reasonably believes to be an unlawful interference with his or her person by such other person," Karls-Ruplinger wrote. "In addition, a person is generally privileged to defend a third person from unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend himself or herself from unlawful interference." Then, too, the law enlarges the boundaries of deadly self-defense to areas outside the home, Karls-Ruplinger wrote. That includes your car or your business. The idea of retreat is another important element of the law because under the old standard a court could consider whether a person had an opportunity to retreat or escape without using deadly force. That's no longer the case. "Further, the Act provides that a court may not consider whether the actor had an opportunity to flee or retreat before the actor used force," Karls-Ruplinger stated. Simply put, she summed up, the Castle Doctrine Act creates a presumption of immunity for criminal actions involving force that is intended or likely to cause death or great bodily harm. It replaces the common law "reasonable person" standard, which placed the burden on the defendant to show that a defensive action was reasonable or inescapable. In other words, instead of having to prove you were right to shoot, it is legally presumed you had the right to shoot, unless it can be shown otherwise. Critics As Castle Doctrine laws have spread around the country this past decade, critics have tried to marshall their arguments to stop it, to little avail. Prominent among them are trial lawyers and district attorneys, and in 2007, with funding from the Joyce Foundation, they convened a symposium of prosecution, law enforcement, government, public health, and academic experts to set out their arguments. Steven Jansen and Elaine Nugent-Borakove summarized the critiques in a follow-up paper. Among other things, they pointed out, extending the right to self-defense, with no duty to retreat, to places outside the home - to anywhere a person has a right to be - means the Castle Doctrine could apply not only in a place of business or personal car but in a park or on a sidewalk. "Historically, legislation in this area - frequently called "Castle Doctrine" or "no-retreat" laws - has followed the common law," Nugent-Borakove and Jansen wrote. "It has allowed individuals the right to use reasonable force, including deadly force, to protect themselves or others against an intruder in their homes. Over the past few years there has been a movement at the state level to expand the Castle Doctrine. These new laws extend the right to self-defense, with no duty to retreat, to places outside the home such as a vehicle, workplace, or anywhere else a person has a right to be. Such expansions could have significant implications for public safety and the justice system's ability to hold people accountable for violent acts." What's more, they wrote, while the Castle Doctrine might seem to bolster protections for victims of certain types of crimes, such as victims of sexual abuse or domestic violence, in those cases the Castle laws actually add nothing but are merely duplicative. Indeed, they argued, it would not be appropriate to use those situations to justify an expansion of the legal principle. "First, there is no research to bear out the notion that arming victims deters attackers," Nugent-Borakove and Jansen wrote. "Second, the traditional Castle Doctrine and normal theories of self defense already allow victims to defend themselves when under persistent attack or threatened in the seclusion of their own homes. An expansion is not needed." Law enforcement officers attending the symposium also expressed concern that an expanded Castle Doctrine might place police officers in greater jeopardy than they already face. "(L)aw enforcement officers are held to very specific and strict standards with regard to the use of force," they wrote. "Police officers do not share in the immunity now afforded the general population under the expanded Castle Doctrine." Instead, they observed, officers who use deadly force in the line of duty are subject to intense scrutiny to determine whether their actions were appropriate. If a court determines that their use of force was inappropriate, law enforcement officers could be held both criminally and civilly responsible. That, they argued, created a double standard between law enforcement and citizens, when expanded Castle Doctrines are legally enshrined. What's more, they continued, certain provisions - also included in the Wisconsin law - actually put officers in real harm's way out on the streets. Of particular concern, they asserted, was officer safety during 'no-knock' warrants, where police officers can enter without identifying themselves as law enforcement. The expanded laws allow those inside to shoot the officers, they contended. "Officers can enter a home without announcing their presence only if they have a particular concern, articulated to the court issuing the warrant," they wrote. "Generally 'no-knock' warrants issue when there is a fear that suspects will destroy evidence or there is probable cause that the occupants may have access to weapons." Because the expanded laws presume that breaking and entering justifies a deadly response, and harming a police officer is an exception only if the officer has been identified as such, officers may be put into an untenable position, they wrote. Finally, the authors pondered the various social reasons leading to the movement toward the expansion of the doctrine. For one thing, they wrote, there has been a diminished sense of public safety after the terrorist attacks in 2001, as well as a subsequent lack of confidence in the criminal justice system's ability to protect victims. They also cited what they called a growing perception that the due process rights of defendants overshadowed the rights of victims, as well as a decrease in gun-control legislation over the last decade. Supporters Supporters are diverse, however, and include Democrats as well as Republicans, and some prominent law enforcement officials, such as Milwaukee County sheriff David Clarke. "There is no place more sacred in our system of justice, as evidenced by our Constitution, nor is there any place in which a person has more of a right to be safe and secure from the threats of the outside world, than in their own home," Clarke said. "With the recently enacted Personal Protection Act and the proposed 'Castle Law,' I am encouraged that our lawmakers are starting to 'get it' when it comes to law-abiding people not surrendering the upper hand to the criminal element. I'm through telling law-abiding people to automatically run first from crime. I'm not going to tell anyone what they should do under similar circumstances, but the only time I am going to run from my own home is if it's on fire or flooding." If an intruder enters, Clarke said, his first move would not be to dial 9-1-1, it would be to protect and defend his family and himself. "Once that threat of an intruder has been identified and neutralized, then I'll call for police," he said. "If that means it is after I shoot the intruder, then so be it. Telling or expecting people to call 9-1-1 first and then hide in a closet waiting for the police to arrive is silly. What happens if the intruder is between you and the door to the home, do we expect people to jump out a second story window?" Clarke pointed a finger in the direction of the court system as a reason for his beliefs. "I have taken this position because with the lenient circuit courts in Milwaukee County, citizens can no longer rely on protection from their institutions of justice, which today are more concerned about the welfare of the criminals than they are about law-abiding citizens," he said. "It disgusts me beyond belief that certain public officials and criminal advocates trust career criminals (many of them violent) with probation, parole, early release, low bail and deferred prosecution, but they don't trust law-abiding citizens to handle their right to defend themselves. Someone needs to remind those public officials of their duty to represent law-abiding people as well." The author of the legislation in Wisconsin, state Sen. Van Wanggaard (R-Racine), said the matter boiled down to being able to defend yourself and those closest to you without being legally punished for it. "This bill is about protecting the lives of you and your loved ones," Wanggaard said. "Crime victims shouldn't have to worry about their potential liability while defending themselves in their own homes. Assembly Bill 69 helps alleviate that fear. . . . Law-abiding citizens shouldn't be forced to run away from their own homes when faced with an intruder, and they shouldn't have to worry about being sued for defending themselves." Wanggaard said the critics' fears about increased violence and unintended consequences were overblown and misplaced. "This common sense reform hasn't turned other states into the Wild West, and it won't in Wisconsin either," he said. A co-author of the legislation, Rep. Dean Kaufert (R-Neenah), said the new law would reinforce core constitutional protections. "One of the fundamental rights we all have as American citizens is the right to defend ourselves and families from a criminal that could harm us, and nowhere is that right more paramount than a person's home and property," Kaufert said. "If a person is awakened at home late at night by the sound of someone breaking into their home, they should have the right to defend themselves and their family without having to sit down and have a conversation with the intruder about what their 'intentions' are first." Richard Moore may be reached at richardmoore.gov@gmail.com.