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.
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Comments:
Nov '10
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
"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?
Edited on October 29, 2012 at 3:35amJul '11
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
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.
Edited on October 29, 2012 at 2:34amApr '11
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
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?
Dec '11
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
Time is of the essence, Prof. Epstein.
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.
Dec '10
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
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.
Apr '11
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
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.
May '12
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
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.
May '10
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
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.
Nov '11
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
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.
Jul '11
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
Last Outpost on the Right: Time is of the essence, Prof. Epstein.
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.
Sep '11
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
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.
May '10
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
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.
May '11
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
The point of the law is precisely to allow for a different response in the home.
And even if they were to meet on the street, there is still the right to defend yourself if a reasonable person would think you are in jeopardy. I don't know of any jurisdiction that requires a warning before using deadly force.
I think the people of Montana are fortunate indeed to have such a law. Let's hope cuckolded men think twice before trying to disrupt the peace of someone's home.
Apr '11
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
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. · 3 minutes ago
Or if Fredenberg was not so aggressive, having entered, that Harper could comply with the statute's demand that he reasonably believe that deadly force was required to prevent an assault. If you're in Florida, a home invasion may be enough to make you a momentary outlaw, but if you're in Montana you need to be a jerk about it before you lose the protection of the law.
Feb '12
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
What happened to reasonable force I see no mention of it anywhere.. was that a ricochet or rocket attack?
Jun '10
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
Richard Epstein:
while normally one is allowed at most one shot and not a fusillade of shots,
Professor, clearly you know the law a whole lot better than I do, so I'll assume you are correct here. Therefore, I can only say the current law is immoral and unjust and should be changed immediately to allow for firing more than one shot in self-defense.
Jul '10
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
I have never heard of such nonsense. Why on earth would I warn a potential assailant that I have a gun, much less simply brandish a weapon at him? That gives the assailant an advantage over me. When I pulled my gun on who I took to be a car jacker, the safety was disengaged and the bussiness end was aimed at his chest. One further move and at the very least, 3 or 4 rounds would have shattered the window and struck him. Had I shot only one and say struck him in non-fatally in the arm, would I have been obliged to cease and allow him to have his way? Not to mention, a 9mm or 22 caliber will do far less damage with one shot on a drunk assailant than say a .45 caliber.
Apr '11
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
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.
Sep '12
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
Isn't this just an example of the saying, "Hard cases make bad law?" Imagine the reverse, a scenario in which an individual seemed fully justified in shooting under the circumstances, but is nevertheless prosecuted criminally. Wouldn't we be having a discussion which was started by someone insisting that, "This is why we need a Castle Law." For every idiot who overreacts with their firearm and escapes prosecution, there is a jury of idiots who convicts some else.
The question, I think, is "are we better off with some sort of statutorily required presumption in favor of the person whose property is being invaded. Perhaps current castle laws as written aren't perfect, but it seems smarter to try to amend those laws than to throw them out entirely on the assumption that juries will display common sense.
Jul '11
Re: The Castle Law is Still a Mistake: The Traditional Law of Self-Defense Meets All the Critics' Objections
James, I'm merely communicating how little I care about what other people think is OK, legally or otherwise if I perceive my life is in danger. I doubt I'll be on Ricochet if that scene goes down. Lawyers and politicians have screwed this country up so bad you break the law every day without even knowing it. No one, not the cops, not the government, not the law is looking out for you when it's on the line.