The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics’ Objections

There is no doubt from the volume and the tone of the 100+ comments posted in response to my initial column on the “Castle Doctrine” that most of the readers on Ricochet think that my views on “Gun Rights Gone Mad” are on the wrong side of the issue. The criticisms insist that I am naïve about the use of force, and that I misunderstand the natures of the dangers that were involved in this explosive situation. 

Some of the responses have an appropriate level of melodrama, such as the comment by Fake John Galt that Harper “did what he had to do to stay alive.” Or that, as Sisyphus said, you can be dead when you are attacked with fists within 30 seconds. At the Rubicon makes the issue more personal when he says, “How about if I enter your garage and catch you by surprise. I’ll be unarmed. You may not use a firearm to defend yourself. Let’s see how long you last.” David John asks about human imbalance: “A small woman should wait until a strong man strikes her, and then she can defend herself with her bare hands? Is this your meaning?” Devereaux notes that “In the real world multiple rounds will be discharged in an incredibly brief time.”  And BrentB67 says that it “is better to be judged by 12 than carried by six.”  Oh, and yes, there were some members who agreed with me!

So how to sort out the mess?

By the usual legal technique of comparing and distinguishing cases, alas, which could make people still more angry about my obvious and admitted inexperience in dealing with direct physical assault.

So to start the dialogue, it is important to distinguish between two situations. The first involves the defense of the person against a direct personal assault, with or without deadly force. The second involves the defense of property. 

To see how this plays out, start with the assumption that Fredenberg had confronted, by surprise, Harper on a public street when Harper had in his possession a gun that he was entitled to carry. Now the property issue is out of the case, so that the Castle Law would not be invoked. Now the question is whether Harper could be punished for some sort of homicide if he shot an unarmed man three times before he gave him any warning to back off or refused to back off himself. 

In self-defense cases, specific facts often make a huge difference, but in general, no matter how drunk or vicious Fredenberg appeared to be, shooting first and asking questions later is likely to be subject to a charge of homicide. The only uncertainty is the grade of the offense. Much will depend on whether there was time to issue threats, or to brandish a weapon and not use it. Much will depend on the precise demeanor of Fredenberg. Indeed, much may depend on the prior interactions between the parties, given that the two men obviously knew each other before the bullets were fired. Fredenberg had a real grievance with Harper, who may have chosen to fire quickly because he did not want to have to answer for his adultery—the kind of motive that could easily narrow the scope of the self-defense defense.

The key point here is that — wholly without the Castle Law — if it could be shown that the assault by Fredenberg, even if unarmed, was immediate and that lesser means could have left Harper in peril of his life, he does not have to wait until he can answer the threat with the use of force. There is no per se rule that says you can never use force against an unarmed person. But of course, when all the evidence comes in, that is what has to be shown. So dire statements about, seeing “how long you would last” if so attacked are beside the point. If I would not last long, then I can use deadly force to combat a deadly attack, wholly without the Castle Law. 

Likewise, a small woman threatened by a large man may well be within her rights to use a gun, but may well be required to threaten first before shooting if there is enough distance between the two parties. These are all jury questions — and in many doubtful cases juries respond favorably to the defendant who is put in danger by no threat of her own. From what we know, I think that Harper would lose badly in this case.

 So what happens when the situation moves to the garage of the defendant when there is no Castle Law in play?  Here there is no question that the threat to property may well increase the ability to use force in self-defense. But that is not likely to have much of an impact when the threat is on the garage, especially where there appears to be no intention to steal or damage any property. Remember this is not an attack in the bedroom. So must you retreat into you house and bolt the door?  The answer is probably yes. Once that is done, there is at least some chance that Fredenberg will back off and go away, at which point a life is saved. If he does seek to break down the door to continue the attack, self-defense becomes a lot more potent. 

Either way, it is unwise to sanction any action that forces a deadly confrontation under circumstances where self-defense is so weak. But not certainly so. Note that in the case of deadly force, the most that a defendant can get out of being attacked on his own property is some modest edge over the attack on the street. But it is hard to think that the change in location, without any additional danger, gives a license to kill without regard to any of the key issues that influence these interactions on a public street.

Yet that seems to be exactly what the Castle Law purports to do. While one normally has to see that there is a threat before attacking; while normally one has to issue a warning before firing; while normally one is allowed at most one shot and not a fusillade of shots, the great vice of the Castle Law is that it takes only one factor among many—the presence of the defendant on the property—and transforms the rest of the analysis beyond recognition. (The drunkenness of Fredenberg is in all play in all cases, including attacks on the street).

The law of self-defense does not require a person to put himself in mortal danger to spare an aggressor. But it does require that one look long and hard to see if there is a real threat, and, if so, whether it is one that can be countered by lesser means. If, as appears to be the case, Harper could be charged with homicide if the attack took place on the street, the proper inquiry is whether the provocation reduces the charges from murder to manslaughter, with a lesser sentence. Recall the objection to my view—“it is better to be judged by 12 than carried by six.”  Ironically, Harper won’t be judged at all, just as Fredenberg is indeed carried by six.

  1. Wylee Coyote
    Richard Epstein:  While one normally has to see that there is a threat before attacking; while normally one has to issue a warning before firing; while normally one is allowed at most one shot and not a fusillade of shots

    Professor, what it appears you’re doing is to take an understandable principle (that de-escalation is generally to be preferred over violence), and extrapolating it into a body of law that is nowhere in evidence.

    I’m a police officer and a state-certified law enforcement firearms instructor.  There is no law or precedent that I am aware of that flatly governs how many rounds may be fired in a self-defense situation.  Armed combat (and make no mistake, that is what we are talking about) simply does not work that way.

  2. Robert E. Lee

    I’m not the smartest person around, maybe not even the sanest, so I am unlikely to be able to think philosophically or even rationally through all the myriad consequences of an act that must be decided in a split second.  From what I’ve seen and read here, even the best and brightest minds around take far longer to contemplate and render judgment on the actions of those who do.

    If a brilliant, trained, legal mind, after long contemplation, has doubts about the validity of a certain action, what chance have normal or even less than normal, people have of reaching any but an instinctive reaction to survive in split-second circumstances?

  3. Rickenbacker_Playr

    I love being a member of Ricochet!!  This level of discourse is impossible to have almost anywhere else. 

    As a member of what one might term ‘the gun culture’, I have participated in more than my fair share of arguments over concealed carry, Castle Doctrine, duty to retreat, etc. over the years and have to admit that I am quite emotionally invested in this topic.  While I am sympathetic to the professor’s arguements, I still disagree with the premise that the Castle Doctrine is bad law.  The ‘victim’ in the case which precipitated this post could have chosen a phone call, text message, email, smoke signal or carrier pigeon to make his point – he did not have to enter Mr Harper’s residence (I assume that Montana law includes the garage as a part of the residence).  He is dead because he chose to confront a man in his own home, and most probably intended to do him harm.  If more fools that took this path were dispatched in a similar manner, home invasions would cease.  The data would seem to support this conclusion, as violent assaults and robberies go down dramtically in states with concealed carry laws.

  4. Super Nurse

    I think Castle Doctrine is a strong response to legal abuses gun owners and victims have been subject to over many years. Remember the would-be burglar who successfully sued a California homeowner after he was injured when he fell through the skylight onto a knife? I live near Chicago, and until recently, elderly individuals who shot armed intruders in their unsafe neighborhoods were routinely subjected to criminal prosection after said shootings for the many crimes associated with illegal weapon possession. Perhaps Castle Doctrine is a bit strong, but only as a response to utterly illogical and abusive legal system.

  5. genferei

    I note that the Model Penal Code, developed in the 1950′s, contains a fairly robust Castle Doctrine (pdf of selected provisions: see e.g. 3.04(2)(b)(ii)(A) and 3.06(3)(d)(ii)(B)).

    And while we’re flinging around old legal authorities, see Brown v. US (256 U.S. 335 (1921)), Justice Holmes:

    Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore, in this Court at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant, rather than to kill him. …

    Moreover, if the last shot was intentional and may seem to have been unnecessary when considered in cold blood, the defendant would not necessarily lose his immunity if it followed close upon the others while the heat of the conflict was on, and if the defendant believed that he was fighting for his life.

  6. Maggie Leber
    James Of England

    If you don’t want to be shot, don’t steal. Don’t come on my land angry. · 7 minutes ago

    Just as a note, Montana’s statute doesn’t make theft, per se, justification for shooting… you can’t shoot someone who is sneaking out with the contents of your safe. · 10 hours ago

    Sounds like a good reason not to live in Montana… unless you are a thief. 

    18 Pa.C.S. § 507: Use of force for the protection of property

    (a) Use of force justifiable for protection of property.–The use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary:

     

    (1) to prevent or terminate an unlawful entry or other trespass upon land or a trespass against or the unlawful carrying away of tangible movable property, if such land or movable property is, or is believed by the actor to be, in his possession or in the possession of another person for whose protection he acts; 

    http://reference.pafoa.org/statutes/PA/18/I/5/507/use-of-force-for-the-protection-of-property/

  7. genferei

    Or if you prefer Cardozo (People v Tomlins213 NY 240243 [1914]):

    It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed here he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home. . . . Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in the home. That there is, in such situation, no duty to retreat is, we think, the settled law in the United States as in England.

  8. David John

    “Likewise, a small woman threatened by a large man may well be within her rights to use a gun, but may well be required to threaten first before shooting if there is enough distance between the two parties.”

    At that moment she should weigh carefully these things? Or, these things shall be carefully weighed later by a jurist?

  9. DocJay

    You’re wrong.  Your three bullet comment speaks volumes as to your complete ignorance about firearms and self defense  by the way.

    Let us say for the sake of argument that the government passes the law the way some of the well intentioned yet misguided  want it and this Castle doctrine is repealed and this exact situation happens to me.  I kill the man anyway and plant a printless blade in his hand before the police arrive if I have a chance to.    

    As  a side note, I’ve had three close quarters armed conflicts.   Here I am watching football and reading Ricochet.   They happen fast and one doesn’t have time to consult a law book when you might be about to die.

  10. Bryan G. Stephens
    James Of England

    Bryan G. Stephens: I might add, I think it is moral to use deadly force to protect my property. Stealing from me is taking the time it took me to earn the money to buy it.

    If you don’t want to be shot, don’t steal. Don’t come on my land angry. · 7 minutes ago

    Just as a note, Montana’s statute doesn’t make theft, per se, justification for shooting. If your home invader threatens you or another person with violence as part of a felony, or uses violence against you or another person as part of a felony you can shoot him if that is necessary to prevent the felony, and you can shoot if that is necessary to prevent an assault, but you can’t shoot someone who is sneaking out with the contents of your safe. · 11 hours ago

    Note that I was talking about morality, not the law in my post. I was making a statement of what I think my rights are, regardless of the law. Laws don’t give us rights; they might protect them, but usually they take them away.

  11. James Of England

    The parts of this post that are not responding directly to commenters seem like lot of words to say “sometimes retreat is a sound plan”; it looks as if you might be saying that retreat is always a safe thing to do, even in close quarters (such as in a garage), but I’m sure you can’t mean that.

    One of the responses that you don’t rebut is that you dramatically  mis-characterized the law during your first post. You do walk back from your suggestion that you can’t engage in self defense until you’re struck, and even then can only respond in kind, rather than escalating. You’re right, of course, that from an evidentiary perspective, the more moderate the response, the less likely you are to appear murderous.

    Having boiled your disagreement with Montana’s castle doctrine down to a simple “you should have a duty to retreat” claim, do you agree that this is a subjective preference on which reasonable minds may differ, or do you believe that there is an objective reason for believing the duty to retreat to be superior?

  12. Last Outpost on the Right

    Time is of the essence, Prof. Epstein. 

    But it does require that one look long and hard to see if there is a real threat, and, if so, whether it is one that can be countered by lesser means.

    In most confrontations, a “long and hard” look is a luxury that no assailant will afford his victim. Prudence dictates preparation to defend one’s self. And this could easily be twisted by an aggressive D.A. in a premeditated assault with a deadly weapon. 

    Unfortunately, this ushers in the desire for affirmative rights in situations where a reasonable view of self-defense would’ve sufficed. 

  13. CoolHand

    Hundreds more words expended and yet you have expanded your argument not in the least.

    First, the attack did not happen in a big open space like the middle of the street, so you can’t examine it as though it did.

    In the street, there are not hundreds of potential weapons within easy arms reach as they are in any garage Ive ever been inside.

    In the street there both parties have equal right to be there, and thus equal duty to disengage.  Inside one man’s garage, the intruder has the duty to disengage, not the homeowner.  The intruder’s presence precipitates the interaction, ergo the duty to disengage and de-escalate is his.

    No shooting is going to be limited to a single round discharged.  You cannot support this thesis in any kind of law, or police would be routinely arrested for excessive force when they discharge their weapons.  Ever read about the cops shooting someone a hundred times?  You know that there weren’t a hundred officers on that scene, ergo each cop fired more than once.  Were they using excessive force?  Of course not, and neither is a citizen defending himself by emptying his weapon.

  14. Tony Martyr

    It doesn’t speak well of us when we jump so quickly to overblown & hysterical tropes, or immediately to situations of “extreme unction” – I’m not saying everyone here is in that boat, but there’s no shortage, either. We rightly deride such behavior in the Left. Professor Epstein’s careful and considered case deserves more – right or wrong, you can dismiss it easily, nor with ruminations on calibre or magazine capacity.

  15. James Of England
    DocJay: You’re wrong.  Your three bullet comment speaks volumes as to your complete ignorance about firearms and self defense  by the way.

    Let us say for the sake of argument that the government passes the law the way some of the well intentioned yet misguided  want it and this Castle doctrine is repealed and this exact situation happens to me.  I kill the man anyway and plant a printless blade in his hand before the police arrive if I have a chance to.     · 3 minutes ago

    Although I’m not licensed to practice Nevada law, I suspect that if you do find yourself wanting to frame someone for attempted murder, you’d be better off using a technique that you had not communicated publicly.

    I should also clarify that not only do I not know Nevada law, but I have no experience in framing people for violent or other crimes, so don’t take my word for this. Just an intuition.

  16. BrentB67

    Mr. Epstein, thanks for following up and remaining engaged on the topic. It elevates the level of understanding and discourse at Ricochet.

    That said if  Fredenberg had stayed off Harper’s property and/or not threatened him he would not be carried by six as you correctly note.

    The adultery aside there is no question that Fredenberg invaded Harper’s property and somehow threatened Harper. If Fredenberg wants to divorce his wife that is his business, but as soon as he takes it onto another man’s property he puts himself in peril.

  17. Bryan G. Stephens

    I don’t give a flip for the law. If a drunk man is in my garage angry and belligerent, I will take my chances first with the DA, then with a Jury if it comes to that.

    Frankly, we have moved to the point with “justice” in our nation, that being charged or not is the true point innocence. The conviction rates are so high, that going to trail is most likely to convict someone.

    I do not have time to figure out if that angry man is going to rush me.

    We need Jack Dumphy to weigh in on the realities of trying to hold someone at gun point without shooting.

  18. Austin Murrey

    With all due respect to Prof. Epstein I fail to see why a whole law should be thrown out on the basis of a third-hand interpretation of a shooting.

  19. DocJay
    Last Outpost on the Right: Time is of the essence, Prof. Epstein. 

    But it does require that one look long and hard to see if there is a real threat, and, if so, whether it is one that can be countered by lesser means.

    In most confrontations, a “long and hard” look is a luxury that no assailant will afford his victim. Prudence dictates preparation to defend one’s self. And this could easily be twisted by an aggressive D.A. in a premeditated assault with a deadly weapon. 

    Unfortunately, this ushers in the desire for affirmative rights in situations where a reasonable view of self-defense would’ve sufficed.  · 3 minutes ago

    The guy next to me watching football was 87-3 as a collegiate boxer.  I would be unconscious in under 1/2 second.  He could end my life with his hands within a few seconds.  

  20. shorteddy

    I think we can assume Fredenberg didn’t come for a friendly chat. Could out have been handled better? Quite possibly, but that doesn’t make the response criminal.

Want to comment on stories like these? Become a member today!

You'll have access to:

  • All Ricochet articles, posts and podcasts.
  • The conversation amongst our members.
  • The opportunity share your Ricochet experiences.

Join Today!

Already a Member? Sign In