Storming the Castle Doctrine

Americans have been captivated by the February incident in Sanford, Florida, that resulted in the death of Trayvon Martin and the eventual arrest and charging of George Zimmerman.  If the case could be resolved today, Trayvon Martin’s family would still be without a son, George Zimmerman—even if exonerated—will never live a normal life, Sanford Police Chief Billy Lee’s career is tarnished, and Al Sharpton’s ego is even more bloated after succeeding in drawing worldwide attention to a local homicide investigation.

Agitators are using the Martin shooting to push for the repeal of state Stand Your Ground and Castle Doctrine laws.  “When Rosa Parks was arrested, if we had focused on the bus driver and not on the states’ rights law, we would have missed the point,” lectured Jesse Jackson.  “We must not just settle for Zimmerman, we must repeal the Stand Your Ground law.”  New York City Mayor Michael Bloomberg describes Stand Your Ground statutes as “shoot first laws . . .  [that] have undermined the integrity of the justice system and done serious harm to public safety.”  He is leading a national campaign to repeal the 25 state laws that permit the use of deadly force if the person being attacked is in a place where he has a lawful right to be and he reasonably believes such force is necessary to prevent death or serious bodily injury.

The efforts to distort and repeal Stand Your Ground and Castle Doctrine laws are misguided.  The current campaign is actually an attempt to turn back the clock on a sensible development in American common and statutory law.  In England during the Middle Ages, because the king claimed a monopoly on the use of force within his kingdom, homicide could be justified only if the perpetrator was executing the king’s writ or when custom permitted (e.g., the taking of an outlaw without a warrant).  In all other cases, including self-defense, conviction was required so long as the prosecution could prove that the defendant took a life.  The defendant could apply for a pardon after conviction, but he had no legal defense.  Later, the chancellor issued pardons in cases of self-defense as a matter of course, but the wait for a pardon was hardly a comfortable situation for the convicted felon who, say, had used deadly force to fight off a highwayman attacking his home or family.

As English law continued to develop it recognized a right of self-defense, but this was circumscribed by the duty to retreat.  If a man was in the forest cutting wood (for his cottage) and got into a fight with a knife-wielding neighbor, the woodcutter had a duty to run away before using his ax to repel the neighbor.  The woodcutter had to ensure that no reasonable means of escape existed before he struck the armed enemy with the ax.  The law acknowledged one exception to this general duty to retreat: the Castle Doctrine.  If an aggressor entered the woodcutter’s home, the woodcutter possessed the right to use deadly force to defend against an attack without having to “retreat to the wall.”

The Castle Doctrine recognizes that, when in the home, one has, in essence, retreated as far as possible.  Requiring further retreat, such as fleeing from the kitchen area where the hypothetical bandit entered to the sleeping quarters, makes little sense.  The Castle Doctrine also affirms that the home should be a sanctuary.  A man’s home is his castle, as the adage goes, and requiring retreat degrades the sanctity of the home and encourages felonious conduct.

In America, state and federal common law, for the most part, has rejected the duty of retreat found in English law.  The “True Man Doctrine” became the rule in a number of American jurisdictions, although some states still adhere to the duty to retreat.  Under the True Man Doctrine, a person without fault does not have to retreat from an actual or threatened attack if he is in a place where he has a right to be and he has a reasonable fear of death or serious bodily injury.

A seminal case explaining the True Man Doctrine is Beard v. United States (1895).  Beard was a farmer whose life had been threatened by one Will Jones.  Jones and his brothers claimed that a cow in Beard’s possession rightly belonged to them.  They armed themselves and went to Beard’s property.  Beard ejected them from the property, forbade them to come back, and explained that he would let them have the cow only if a court of law recognized their claim.  Jones informed townspeople that he would kill Beard to get the cow and returned to the property armed with a pistol.  Beard, returning from town (where he had learned about Jones’ threats), was armed with a shotgun and saw Jones and his brothers arguing with Beard’s wife over the cow.  Beard approached the group and directed Jones to leave the premises.  Jones refused to leave.  He then marched toward Beard and reached into his pocket where a pistol was secreted.  Beard used the butt of the shotgun to crack Jones’ skull.  Jones later died from this injury.

Beard was indicted for manslaughter and tried.  During the jury charge, the judge instructed that Beard had a duty to retreat from Jones unless the attack occurred in Beard’s home.  Based on this instruction, the jury found Beard guilty, and he was sentenced to eight years in prison.  On appeal, the Supreme Court reversed.  In finding fault with the charge, the Court noted that “the accused was [not] under any greater obligation when on his own premises, near his dwelling house, to retreat or run away from his assailant, than he would have been if attacked within his dwelling house.”  Observing that the English duty to retreat had been modified in most American jurisdictions, the Court averred that “the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed, to avoid chastisement, or even to save a human life.”  Because of the error in the jury charge, the Supreme Court overturned Beard’s conviction.

Twenty-six years later, the Court again rejected the duty to retreat in Brown v. United States (1921).  Writing for the majority, Justice Oliver Wendell Holmes described the duty to retreat as inconsistent with human nature.  An internal debate on whether retreat would lead to escape is not required when a man is faced with a potentially life-threatening circumstance.  “Detached reflection,” Holmes wrote, “cannot be demanded in the presence of an uplifted knife.”   If a man reasonably believes his life is in danger, “he may stand his ground” and kill the attacker if necessary.

Twenty-five states have enacted laws to clarify and solidify the True Man and Castle Doctrines.  Legislators believed that statutory action was necessary for a variety of reasons.  For instance, in modern society, an automobile is practically an extension of the person.  Hence, many states have extended the Castle Doctrine to an occupied vehicle.  If a carjacker seeks to gain entry to your vehicle, there is no duty to retreat, and deadly force may be used to halt the attack.

Many of the statutes also circumscribe civil litigation if a person lawfully uses force in self-defense against an aggressor.  These provisions appreciate the litigiousness of modern America.  If a criminal court finds that a person acted reasonably in self-defense and thus the homicide was justified, the estate of the attacker should not be able to bring a civil case and hope to extort money from the person defending himself or his home.  If the estate or another individual does bring suit, many of the laws contain fee-shifting provisions so the civil defendant may recover costs and attorneys’ fees incurred in defending the claim.

Legislators also understand that courts can be fickle institutions.  Just as courts have “discovered” rights to homosexual marriage in state constitutions, it would not be surprising for modern jurists to discover that Justice Holmes had it wrong and that the common law imposes a duty to retreat even if the victim has a reasonable fear of death or bodily injury.  Statutes on the books were needed to protect the people from backsliding judges with little or no accountability to the electorate.

Opponents of the Stand Your Ground and Castle Doctrine statutes portray these laws as relics of Southern honor codes or Wild West vigilante justice.  They paint the supporters of the laws as gun-toting rednecks (or maybe “white Hispanics”) looking for a fight—especially with minorities.  Thanks to these statutes, white trash has been given a green light to shoot first and ask questions later.

It’s interesting that the recent Stand Your Ground and Castle Doctrine laws have little or no relevance to the highly publicized deaths that the usual suspects are exploiting to demand repeal.  In the Martin shooting, Stand Your Ground does not apply, whether one believes Zimmerman’s version or that of Martin’s partisans.

If we believe Zimmerman, he shadowed Martin, eventually caught up with him, started to leave the area, was knocked to the ground, and had his head slammed into the concrete multiple times.  He says he shot Martin because he feared for his life.  Taking this as the truth, the duty to retreat is irrelevant because Zimmerman had his back to the wall (i.e., the ground) and had to shoot to save himself.

If we believe Martin’s allies, then Zimmerman was the aggressor the entire time and shot Martin in cold blood.  As the aggressor, Zimmerman cannot take advantage of Stand Your Ground and clearly committed an unjustified homicide.

Similarly, opponents of Wisconsin’s Castle Doctrine statute say that it permitted Adam Kind to “execute” Bo Morrison.  On March 3, Morrison was attending a drinking party next door to Kind’s home in the small village of Slinger in Washington County.  Kind confronted some of the partiers about noise and then called police.  The police came, but the drunken juveniles barricaded themselves in a garage and refused to surrender.  Once the police relocated down the street, Morrison and some of the others made a run for it.  Morrison, who was out on bail for a list of charges, including battery and resisting or obstructing an officer, and whose blood alcohol level was twice the legal limit, entered the three-season porch of Kind’s home and hid.  Kind heard noise, feared for the safety of his wife and children, retrieved a pistol, and went to investigate.  He encountered Morrison, who made a move toward him.  Kind fired one round and killed the 20-year-old black male.

Washington County District Attorney Mark Bensen declined to press charges.  Under the state’s recently enacted statute, the prosecutor concluded that Kind was entitled to a statutory presumption that force was necessary to protect himself and his family.  Even without this statutory presumption, the prosecution found that there was no common-law duty to retreat because Kind had actually walked past Morrison before he discovered him.  To retreat effectively, Kind would have had to run from the porch to the yard, leaving Morrison inside with Kind’s wife and children.  Wisconsin’s common law imposes no duty to abandon one’s loved ones in such a situation.  Consequently, even without the Castle Doctrine statute, the prosecutor determined that a case could not go forward.

Opponents of the Stand Your Ground and Castle Doctrine laws are wrong to argue that “true man” principles are relics of the 19th century.  At the beginning of the 20th century, over 70 percent of the population lived in rural areas.  Today, only 16 percent of Americans live in a rural environment.  If 19th-century Americans could stand their ground when an enemy living around the bend in the creek attacked, how much more the necessity today when the enemy lives on top of you in an apartment building?  Communal dwelling means a greater proximity to danger and a greater need for laws permitting self-defense.  Thus, the Stand Your Ground and Castle Doctrine statutes are more suited for modern circumstances than for 19th-century life.

The Sharptons and Jacksons also ignore that most home invasions generally take place in low-income urban areas that are disproportionately inhabited by minorities.  It is not a stretch to assume that police response times might be much longer in these neighborhoods than in privileged areas of the community.  Hence, the laws under assault actually offer more protection to the law-abiding minority folks whom the “civil rights” establishment claims it is defending.

The families of Martin and Morrison understandably grieve for lost love ones.  But the repeal of the Stand Your Ground and Castle Doctrine laws would not resurrect these young men or make similar incidents less likely.

Repeal would place the right to protect our persons and property on dubious ground.  While crime rates have fallen in recent years, we are a far cry from mid-20th-century America, when citizens could leave front doors unlocked at night and permit children to play outside without supervision.  Our precarious urbanized existence requires some legal security for citizens who use force when confronted with a home invader or who reasonably fear for their safety in places where they have a lawful right to be.

Surely the “tendency of the American mind” described in Beard has not been so warped that a general duty of retreat will replace Stand Your Ground and Castle Doctrine laws.  If so, this will mark a further decay in our society.  Like the medieval English woodcutter facing a robber in the forest, we will be forced to flee from aggressors until all avenues of escape are blocked.  And if we do use deadly force to save ourselves or our families, we can only hope there arises an American chancellor to issue a pardon.

William J. Watkins, Jr., is the author of Judicial Monarchs: The Case for Restoring Popular Sovereignty in the  United States (McFarland & Co.).

This article first appeared in the July 2012 issue of Chronicles: A Magazine of American Culture.  Click here to subscribe.