Self defense: What Castle Doctrine means to you (update)

April 7, 4:09 PMCharlotte Gun Rights ExaminerPaul Valone

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If attacked, what are your rights under the law? Finding out afterward is too late!

Note: See updated information at end of article. 

Sometimes called “Stand Your Ground” laws, often derided by gun control advocates as “Make My Day” or “shoot first” laws, Castle Doctrine reinforces the right of lawful citizens to protect themselves and others against deadly attack. As North Carolina joins 28 states which have either adopted or are considering similar such legislation, gun owners and especially concealed handgun permit-holders in all states should understand what protections the laws do and do not afford.

GENERAL PRINCIPLES

Castle doctrine derives from English Common Law, and affirms for the lawful occupants of a dwelling the right to use force, up to and including deadly force, to protect against attack. As interpreted in American legislation, it is usually construed broadly to include “dwellings,” “residences,” and “occupied vehicles.” Depending on state law*, castle doctrine generally applies to you only if you have a “reasonable fear of imminent peril of death or great bodily harm” to yourself or to others.

Protections generally* afforded by Castle Doctrine:

• Reinforced right to use deadly force, if you have a reasonable fear of imminent death or great bodily harm. In some cases, the “reasonable fear” is presumed if someone attempts to make a forcible and unlawful entry into your residence or, in some states, vehicle.
• No duty to retreat: The laws generally reinforce your right to “stand your ground” when attacked, rather than having to attempt to flee, provided you reasonably believe force is necessary to prevent death or great bodily injury and provided you are lawfully in the place you occupy.
• Immunity from criminal prosecution: In cases of justifiable use of deadly force, police may generally investigate but not arrest you unless they find probable cause that the force used was unlawful.
• Immunity from civil action: In cases of justifiable use of deadly force, a plaintiff (e.g. the family of the perpetrator) is barred from civil action and may be required to pay attorney’s fees and court costs from bringing such action against you.

Castle Doctrine does not protect you if:

• You are engaged in unlawful activities: Depending on state laws, “unlawful activities” may be construed broadly, or may be limited to commission of “forcible felonies.” Regardless, the laws do not protect criminals during commission of crimes.
• You provoked the confrontation: State laws vary widely, but “Castle Doctrine” defense is generally not available to you if you provoked the confrontation unless you attempt to withdraw from the situation.
• Domestic violence exceptions: Again, laws vary widely but in general, if a restraining order has been issued against you by the “aggressor,” or the “aggressor” is a lawful occupant of the residence, the presumption of fear of death or great bodily injury available normally available for home protection may not apply.

SUMMARY

The worst advice you will ever hear comes from what my attorney father once called “jail house lawyers.” (In the era of modern forensics, particularly stupid is advice to “drag ‘em inside” if involved in a deadly encounter outside your dwelling.) If you keep a gun for family protection, and particularly if you lawfully carry a firearm on a daily basis, failure to do two things may end in disaster:

• Familiarize yourself thoroughly with the laws of your state regarding self defense; and
• Keep contact information for a competent criminal attorney.

At the top of the list of things you can’t take back is a bullet fired in self-defense. After it strikes is not the time to learn the law.

CASTLE DOCTRINE FOR NORTH CAROLINA

Legislative update: Castle Doctrine bills have been introduced in both the NC Senate (SB 928) by Senator Doug Berger (D-Franklin, Granville, Vance, Warren) and in the NC House (HB 1131) by Representative Mark Hilton (R-Catawba).

SB 928: The bill is a reintroduction of an older version originally drafted by this author. In its present form, it contains flaws which, while not fatal to the bill, have been corrected in Hilton’s House version. Although it has not yet gotten a hearing, SB 928 received a relatively favorable committee assignment and resides in the Senate Judiciary II Committee, chaired by Sen. Fletcher Hartsell (R-Cabarrus, Iredell).

Recommendation: Contact Sen. Hartsell and encourage him to give SB 928 a prompt hearing, then contact Sen. Berger and urge him to adopt the improvements of HB 1131 (below).

HB 1131: Rep. Hilton has incorporated a number of improvements, particularly: (1) Where the older bill denies the defense to anyone engaged in nebulously defined “unlawful activities,” however inadvertent, HB 1131 narrows the exclusion to those engaged in “forcible felonies;” and (2) While the older bill would probably be construed to include self-defense in vehicles (e.g. carjackings), HB 1131 specifically lists vehicles among covered areas.

Recommendation: UPDATE: HB 1131 was assigned this afternoon to the House Judiciary I Committee, chaired by Rep. Deborah Ross (D-Wake). Thanks to her ACLU past, Ross is not particularly friendly to the Second Amendment. Contact her and let her know the bill deserves a hearing. Also, check the committee to see whether your elected representatives are on it. You may also subscribe to Grass Roots North Carolina legislative alerts by clicking here.

* Disclaimer (yes, you knew there had to be one): While the author is routinely involved in drafting and amending legislation, he is not a lawyer and nothing within the above article is intended as legal advice. State laws vary widely: Check statutes and obtain competent legal advice for applicable states.

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