Castle Doctrine is Not Guilty

[The following article is reprinted with the permission of the author, Paul Valone.]

Amid rhetoric about “legalized vigilantism,” national media rush to indict both George Zimmerman and Florida’s “Stand Your Ground” (SYG) law. But even as editorialists call for curtailing such laws, Zimmerman’s own lawyer admits SYG probably doesn’t apply.1 In 2007, I wrote North Carolina’s first “Castle Doctrine” bill (our version of SYG), shepherding it though countless iterations of eight different bills.2 Far from “sloppily written,”3 as one editorial alleged, our law, effective December 1st, was vetted by legislators, legislative counsel and legal experts . . .

Castle Doctrine comprises three parts: The first establishes legal presumption that if somebody “unlawfully and forcefully” enters your home, workplace or vehicle, you have a “reasonable fear of imminent death or serious bodily harm” and may use up to deadly force in self-defense. You may not, as some suggest, shoot door-to-door salesmen; invasive entries must be both unlawful and forceful.4

Second, anywhere you may lawfully be, if you face “reasonable fear of imminent death or serious bodily harm,” you have no duty to retreat before using deadly force.5 Media misstatements notwithstanding, this provision, like Florida’s, does not change centuries-old standards for deadly force. It merely reinforces existing doctrine that you need not risk attempting escape before responding.6 Despite editorialists’ claims, saying “I was afraid” isn’t enough: In jurisprudence, objective “reasonable person” standards are well established.7

Finally, it grants immunity from litigation and malicious prosecution (think “Mike Nifong”) for people who justifiably use deadly force.8 Lest that seem unimportant, consider 64-year-old Joshua Moore of Rocky Mount, who defended his wife when their produce stand was robbed, then got prosecuted for murder. Moore spent thousands on appeals before winning acquittal in the NC Supreme Court.9

Like ours, Florida’s “aggressor” clause generally precludes the SYG defense if you provoke attack. If Zimmerman followed and attacked Trayvon Martin, he cannot claim the defense unless he withdrew from the situation or was counter-attacked so viciously he couldn’t retreat and faced a deadly threat.10,11

We crafted Castle Doctrine to prevent abuse. In 2009, I wrote language ensuring deadly force couldn’t be used against invaders fleeing dwellings. Other measures preclude the defense for anyone using deadly force against police, bail bondsmen, or legal inhabitants of a dwelling; by anyone not where they may lawfully be (e.g. burglary); or by those committing felonies.12 Even the “reasonable fear” presumption during home invasion is rebuttable.13

Zimmerman’s grand jury will convene on April 10. If he attacked Martin, he’ll stand trial and SYG likely won’t apply. But if Zimmerman withdrew toward his SUV before being punched and having his head repeatedly slammed into the sidewalk, as witnesses largely corroborate,14, 15 the law worked as intended.

As media feed on Zimmerman, consider cases they haven’t mentioned: Just four weeks into our law, two men broke down the door of a Vance County home containing a 14-year-old boy and his 17-year-old sister. As she called 911, he shot an advancing assailant16. Should that boy waste precious seconds pondering whether his attacker poses a deadly threat? Far from being “flawed,” as some claim, Castle Doctrine saves lives.

_
© 2012 F. Paul Valone. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means electronic or mechanical, including photocopying, recording, scanning, digitizing, or any information storage and referral system, without written permission from the publisher. For reprint permission, contact: fpv@fpaulvalone.com

  1. “Lawyer: Family of Trayvon Martin to pursue civil case,” March 24, 2012, http://www.cnn.com/2012/03/24/justice/florida-teen-shooting/index.html
  2. 2007-08: HB 476, SB 1251; 2009-10: SB 928, HB 1131;  2011-12: HB 52, SB 34, HB 74, HB 650
  3. “Questioning the Castle Doctrine,” The Herald-Sun, March 25, 2012: http://www.heraldsun.com/view/full_story/18001716/article-Questioning-the-Castle-Doctrine
  4. N.C.G.S. § 14-51.2. “Home, workplace, and motor vehicle protection; presumption of fear of death or serious bodily harm.”
  5. N.C.G.S. § 14-51.3. “Use of force in defense of person; relief from criminal or civil liability.”
  6. Law school professor and legal blogger Eugene Volokh writing for “The Volokh Conspiracy,” http://volokh.com/2012/03/24/lethal-self-defense-the-quantum-of-proof-the-duty-to-retreat-and-the-aggressor-exception/
  7. “Reasonable person standard”: http://en.wikipedia.org/wiki/Reasonable_person
  8. N.C.G.S. § 14-51.3. “Use of force in defense of person; relief from criminal or civil liability.”
  9. STATE v. MOORE, No. 60A09, January 29, 2010,
    http://caselaw.findlaw.com/nc-supreme-court/1505887.html
  10. N.C.G.S. § 14-51.4. “Justification for defensive force not available.”
  11. Title XLVI, Section 776.041, “Use of force by aggressor,” http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0776/Sections/0776.013.html
  12. N.C.G.S. § 14-51.2(b)(c).
  13. Ibid. at note 12.
  14. “Witness: Martin attacked Zimmerman,” March 23, 2012, http://www.myfoxtampabay.com/dpp/news/state/witness-martin-attacked-zimmerman-03232012
  15. “Police: Zimmerman says Trayvon decked him with one blow then began hammering his head,” Orlando Sentinel, Rene Stutzman, March 26, 2012, http://articles.orlandosentinel.com/2012-03-26/news/os-trayvon-martin-zimmerman-account-20120326_1_marijuana-report-press-conference-gated-community
  16. Suspect arrested in Henderson home invasion, WRAL News, December 30, 2011, http://www.wral.com/news/local/story/10547795/

 

comments

  1. avatar Ropingdown says:

    If journalists and politicians could be encouraged to read this posting, Valone’s concise explication, they could save the public much confusion and needless anger. I realize that may not suit their professional proclivities, for the relevant statutes were already available and went unread. Require a course of study for gun owners? Let’s start with journalists and politicians, many of whom affect more people, sometimes in fatal ways. See, e.g., “lynch mob.”

    1. avatar Buuurr says:

      Used to be a time where you could go to prison for inciting/encouraging riots. At least I thought so.

    2. If anti 2A journalists and politicians actually cited relevant statistics, law, and facts then “gun control” would swiftly take over the country!…oh wait, if they told the truth then the Pro 2A argument, castle doctrine, and stand your ground laws would be applied to every state and reinforced.

    3. avatar AK says:

      This is a really clear and concise explanation of both SYG and the Zimmerman fiasco. I’m going to have to bookmark this so I can share it with people that don’t understand the law and are jumping to conclusions about SYG based on emotion. Thanks for posting it Dan.

      1. avatar Here Iam says:

        Most of the rabid gun control and/or Trayvon supporters would never let things like facts get in their way. I think that has been demonstrated countless times over the last few decades, but good luck anyways… 😉

        1. avatar Sig says:

          There are a lot of non-rabid people out there who are only hearing one side of the narrative, however.

  2. avatar bontai Joe says:

    Excellent, thank you for posting it, and a big thank you to Mr. Valone for writing it.

  3. avatar Tom says:

    Quite frankly, if the Zimmerman-Martin incident had happened in Indiana as the Police Report stated, then Zimmerman would not be charged here either. If Martin intiated the combat and had Zimmerman on the sidewalk and was attempting to bash his brains in, Zimmerman could not have retreated and would have been in fear of his life. I suppose SYG and Castle Doctrine might help in an oblique way, but that is not exactly the circumstances as I am reading them.

    1. avatar Not Too Eloquent says:

      Oh please, Zimmerman wasn’t even taken to the hospital first. He had an abrasion. Florida law doesn’t allow one to bring a gun to a fist fight you initiated and then kill the other dude when you are losing.

      1. avatar Michael B says:

        Do you have evidence that we don’t have yet proving Zimmerman initiated physical contact with Trayvon first?

        Interesting. Please, tell us your source.

        1. avatar Not Too Eloquent says:

          He got out of his truck. He deserved his butt – kicking at that point. Don’t go
          get in someone’s face and expect not to get punched.

        2. avatar NukemJim says:

          “He got out of his truck. He deserved his butt – kicking at that point. Don’t go
          get in someone’s face and expect not to get punched.”

          Uhmm, do you possess a firearm? If you do I strongly hope you get rid of it or grow up.

          Excluding “fighting words” or immediate threats per the US Supreme court there is NO ethical, legal, or moral justification in starting a physical conflict due to words. Does the phrase “sticks and stones can break my bones but words will never hurt me” ring a bell? Most children learn that by 2nd or 3rd grade, perhaps you should go back to 3rd grade so that you can learn that.

          As to deserving to get his butt kicked since he got out of his truck, he lived in that community as well. He had every legal right to be there.

          His behavior may have been unwise, stupid and risky but it was legal, starting a butt kicking due to words or because someone got out of their truck is not.

          I do not know what happened, I do not know who if anyone deserved a butt kicking or having someone on top of them hitting them and pushing their head against the ground. I have read the police reports, some of the witness statements, and several lawyers opinions based on the minute amount of evidence that is currently available. After having read all that I still do not know what happened for sure. That is a job for the courts.

          I do know that starting a fight over words, with the exclusions listed above, is wrong legally, morally and ethically.

          What do you know that changes that legal principle?

          NukemJim

        3. avatar Not Too Eloquent says:

          Don’t twist my words. I never said I would punch somebody over getting in my face nor would I shoot them. I stated that if one is to get in another’s face, one may expect to get punched as one of the possible responses. Not overly responsible to bring a gun to a fistfight that you initiated. One carrying a concealed weapon has a higher responsibility level than to go initiating confrontations. Check out the Drudge Report link to the ABC News story that Zimmerman does not appear even remotely injured on the police video.

        4. avatar Truth says:

          No one know that Zimmerman started the fight. In fact witnesess have stated the oppisite. As for injuries, if he was not combative the police officer on the seen would have rendered first aid to stop bleeding, you cant have someone bleeding all over your squad car. That soon after getting a broken nose it is very possible that there is no visible injury. Been there done that a few times. Minor head injuries aree often difficult to detect under hair. I had a car accident that resulted in minor head injuries, minor cuts abrasions and glass fragments. The doctor at the ER did not discover the injury. I discovered it the next day while washing my hair.

        5. avatar Moonshine7102 says:

          “He deserved his butt-kicking at that point…”
          —–
          To quote the esteemed gentleman from yesterday:
          “Unbelievably harsh.”

        6. avatar gen4n9 says:

          For starters I see no evidence that Zimmerman had any intentions of starting anything with Martin. I certainly don’t think he had any intentions of starting a fist fight. And I completely disagree with your assertion that Zimmerman shouldn’t have gotten out of his truck. Zimmerman had every right to get out of his truck to confront anyone he wants in his own neighborhood, it sure the hell doesn’t give someone the right to attack him. Of course with what little evidence there is, it is Martin that confronted and then attacked Zimmerman, and in-turn got himself shot.

          I can say that several times when I was in my teens, me and friends of mine were confronted by adults in our various neighborhood’s, and were asked what the hell we were doing, or were just flat out told to move are asses along. But with your logic, I guess we should have just beat the shit out of those people. And then consider our selves justified in doing so. I think not.

        7. avatar Michael says:

          Zimmerman had every right to get out of his truck to confront anyone he wants in his own neighborhood.

          Um… Nope. Martin had every right to be where he was and has the fundamental right to travel.
          http://en.wikipedia.org/wiki/Freedom_of_movement

          Zimmerman could have yelled at him from the lawn “hey you damn kids…” or whatever. But, that’s about it. Zimmerman was even asked by the police to not follow Martin and he did it anyway. It sure looks to me that, at least on this point, that Zimmerman went too far.

        8. avatar Not Too Eloquent says:

          He got out of his truck. He deserved his butt – kicking at that point. Don’t go
          get in someone’s face and expect not to get punched. Then he is justified in killing the kid?

        9. avatar GS650G says:

          If someone “gets in your face” will you commit an assault over it? I sure hope you don’t carry since you seem to think Martin had the right to start a fight.

        10. avatar karlb says:

          I am writing about generalities here, for I do not know what happened–

          If it was dark out, and I was being followed by someone, I would be worried. If that person then got out of the car and followed me on foot, there would not have to be fighting words passed for me to fear for my safety. In the Martin/Zimmerman case, I believe both of them were frightened, and that resulted in a tragic outcome.

        11. avatar Not Too Eloquent says:

          I absolutely believe Martin had the right to his response to a strange adult pursuing him in the dark through a back yard. Kid was 17.

        12. avatar gen4n9 says:

          Zimmerman says he was on his way back to his truck when he was attacked. I don’t know why that is so hard to believe. And that “backyard“ you speak of, has an extremely long sidewalk that goes from one end of the complex to the other. Its not what most people would envision as some sort of private yard like your making it sound. You can Google 1231 twin tree Ln. and 2821 retreat view Cir. Sanford, FL. That’s where the attack on Zimmerman took place. Zoom in on the satellite image and have a look.

          And what does Martin being 17 have to do with anything? Some of the most vicious crimes are committed by people his age. You know, like gang shootings and armed robbery.

        13. avatar Michael says:

          Zimmerman said the kid snuck up on him from behind, but there’s not much of anything to hide behind in that stretch of neighborhood.

        14. avatar Not Too Eloquent says:

          Don’t make this about me. This is about a 17 yo minding his own business.

        15. avatar GS650G says:

          you make the claim that he had some kind of right to assault someone, maybe because he’s 17 and minding his own business, but I’m not seeing how he gets to initiate a fight. Please enlighten us.

        16. avatar Not Too Eloquent says:

          My point is Zimmerman started it and should have fought like a man, without killing a 17 yo with his weapon. Zimmerman had little physical evidence of injury according to ABC News review of the police video.

        17. avatar Moose Airborne says:

          And we are supposed to believe CBS why? Of course they never tell a lie, just not the whole truth.

        18. avatar Jake says:

          Was Martin’s face glued to the truck door? You keep going “exited the truck” then immediately “in his face” as though you have data about the events in between the truck exit and the encounter that we do not. Share links by all means to your source.

          OH also, in befoar this comment is read as a defense of the final outcome. Sick of that argument “style” (style like a cudgel), in any context.

      2. avatar Tom says:

        How do you know Zimmerman initiated the fist fight? I made my statement going off the police report. Maybe things happened that way and maybe they did not. Right now, the police report seems a better source than the howling mobs.

        1. avatar Not Too Eloquent says:

          OK, Zimmerman started the confrontation instead of standing down and letting LEO do their appointed job. To the kid, Zimmerman probably appeared as some bizarro Rambo possible child abductor. I never stated Zimmerman started the actual fight. He undeniably started the entire incident. Again, cut the word twisting.

        2. avatar Moonshine7102 says:

          Nobody is twisting your words; they’re using what you said against you. Not the same thing.

  4. avatar Mark N. says:

    I’ve been trying to tell this to people, even quoting the statute, but they would rather listen to some pundit “interpret” the statute as saying things it doesn’t. It is sad that this unfortunate death has become the catalyst for such rank political pandering.

  5. avatar Michael B says:

    “Men willingly believe what they wish.” – Julius Caesar, De Bello Gallico

    1. avatar Ropingdown says:

      That’s why, as one comment-writer noted two days ago, we give at least as much weight to the testimony of witnesses and examination of physical evidence as we do to the political hay makers who weren’t there, but have told the rabid crowds the, uh, truthiness.

    2. avatar Charles says:

      Do you believe that?

  6. avatar Ghostwriter says:

    Physics and Philosophy, my friends, that’s what it’s all about.
    Physics, a term most closely associated with actions of energy, including but not expressly limited to matter, force and motion.
    Philosophy, most closely associated with human perception, thought and behavior, definable in part as, the investigation of the truth of being, knowledge and conduct.
    Under the category of Philosophy are the associative words:
    Conscience, Morality and Rights.
    Conscience, definable in part as a quality of humans with the potential to serve the individual in some circumstances as a restraint upon certain actions, and in other circumstances as a calling to act.
    Morality is definable in part as, a code of rightful thought and conduct.
    The word ‘Rights‘ essentially identifies the natural status of each person, becoming most meaningful and significant in the actual presence of another person or persons.
    As associated with Philosophy, recognition of individual Rights may be regarded as an extension of applied Conscience and Morality.
    As applicable in the presence of another person or persons, the Moral code of rightful individual conduct simply requires avoiding the violation of another person’s Rights.”
    Gw
    ( Note: “failure to apply the quality of Conscience; adhere to simple codes of rightful Moral conduct; recognize and show respect for the Rights of other persons;-
    may result in significantly-consequential outcomes.” )
    “Do No Harm / Successfully Defend.”
    Gw

  7. I lost a grandson to a so-called castle law/self-defense shooting, which happened immediately before his court date as a prosecution witness. Everything about his case points to a purposeful murder, but a prosecutor was willing to go along with self-defense. As one lawyer put it “I wonder what her motive was?” I think I know now after several years of probing. Proximity to this tragedy opened my eyes, and I collect “evidence of castle law failures.” Believe what you please, but the laws encourage psychopaths, trigger happy types and cut throat criminals, who will use the laws to their advantage. These are dangerous laws. I invite you to the blog at my website.

    1. avatar Jake says:

      I noted only that in each example the murderer was duly charged with murder, each case having nothing to do with Castle laws further than the uneducated assessment of thick tongued career politicians. As far as your grandson, I don’t know that story, but if what you say is so then misuse of a law in some cases by bad people is not an excuse to throw the rest of decent society to the wolves.

      1. Actually, I agree with you that people ought to be able to use force – even deadly force – if there is a genuine, uninvited threat to their life. It’s just that I know firsthand that some murders are buried forever as self-defense homicides, and what happened to my grandson is definitely not the only highly questionable castle law killing on record.

        I would hate to see the Second Amendment repealed, but I’m afraid that’s where all of this is headed. Click on my name here, and when the Cotter’s Cliffs panorama comes up, click into the blog option in the blue stripe beneath the panorama. There are examples in there that just go too far, and in all of those examples, the one doing the shooting believed (or at least claimed) that his or her action was allowed by a castle law. Some were charged with murder; some were not.

        You are right to be concerned about being thrown to the wolves. I’ve had similar thoughts. But a society that accommodates murders is not a haven for safety, either.

        1. avatar Jake says:

          That is unfortunate. Such as those unfortunate souls living with unlawful murder convictions for defending themselves. The world is a very unfortunate place. This is not accommodation for murder, it is accommodation for decent people to continue to exist. Bad lawyers occasionally misusing the law through corrupt officials for bad people is not an excuse to change the law to hurt good people. Same self destructive “we must destroy ourselves to save ourselves” attitude that passed the patriot act and prohibition.

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