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.