Castle doctrine vs Common Law

By April 14, 2019Thoughts...

Castle doctrine/ Common Law? Many in society think we all have the “Castle Doctrine” behind us, in the event of a violent encounter on our property or in our home. Please consider the following:

The Castle Doctrine 101

Simple trespass, burglary, home invasion, peeping tom or just a mistaken address. What are the rules of engagement for each? Believe it or not, there are hundreds of laws on the books to protect the homeowner and, if circumstances warrant, the seemingly innocent, simple trespasser/mistaken address or the alleged criminal.

Rules of Engagement for simple trespass: you, the homeowner/renter/lodger, has the right to engage anyone who is uninvited or unknown to you, who is on your property. Depending on the circumstances, it may be a better idea to monitor the trespasser at a distance, and not confront immediately. If the person or persons are acting suspiciously, then it would be a good idea to call the police after you have locked the doors (should have been locked from the get-go). In the case where the neighborhood kids are cutting through your back yard as a shortcut to their final destination, let them go, no harm no foul. On the other hand, if they destroy property while taking the short cut, they have committed a crime, and the authorities should be notified. In the case where you own a lot of land, if you see “hikers” dressed in camo walking about on your property, be aware they could be poachers and armed, take precautions and monitor from a distance. If you suspect the interlopers are poachers, dial 911 and request Fish and Game officers or local law enforcement or both. No matter what, if you engage them, by law you could be perceived as the original aggressor, depending on the totality of the circumstances, especially if someone is injured. If you must approach, approach with a simple, yet distant “can I help you?”

The “Castle Doctrine” (Common Law) has a very narrow scope of leniency when it comes to curtilage and beyond.

Rules of Engagement for Burglary – If it is suspected that someone has broken into your home, prior to you entering, do not enter the home. Call police and monitor the scene at a distance. If you enter the home during the burglary, retreat to safety and call the police. In the event the criminals decide to run, with or without the stolen items, do not chase after them. Secure your safety and call police. If, on the other hand, the criminals turn their attention to you, it could be assumed a felony assault is likely to take place. In this case, the dweller can take all appropriate actions to ensure their safety and the safety of family or loved ones. Non-deadly force (recommended), or deadly force may be allowed, to stop the crime in progress. Once again, it depends on the totality of the circumstances.

The “Castle Doctrine” (Common Law) has some leniency regarding burglary turned felony assault/home invasion.

Rules of Engagement for Home Invasion – Like everything else, there is no absolute in an unpredictable situation. That said, we can all make rudimentary adjustments to better prepare ourselves from becoming victims of crime or tragedy.

Let’s address tragedy first. There is an old saying “failing to plan, is a plan to fail”. It’s estimated that 90% of “us” have never run a fire drill in the home/office with family or employees. This could prove to be a fatal error in judgement.

In contrast, failing to plan for a home invasion is much worse than not preparing for a house fire, obviously. For those in doubt, please search the Cheshire, Connecticut, home invasion murders that occurred on July 23, 2007.,_Connecticut,_home_invasion_murders

Planning for the emergency could have enhanced the victims’ threat response and changed the outcome.

Now let’s address home invasion. There is a myriad of laws written to protect homeowners and business establishments under the banner of “Castle Doctrine, Common Law, Stand Your ground and Duty to Retreat” in various states and jurisdictions. By the very same vein, laws are written to protect the “innocent” and criminals. Due to the ambiguity of laws throughout our United States, it is highly advisable to be familiar with the laws in your local jurisdiction or any jurisdiction you may visit, concerning the use of force. Especially if that use of force is deadly force.

The “Castle Doctrine, Common Law” What does that mean? The doctrine came from old English law in that it was regarded that a man’s home is his castle. The home is his ultimate retreat, according to Barton vs State, “A man is not bound to flee and become a fugitive from his own home, for if that were required, theoretically, be no refuge for him anywhere in the world”. Maryland does not have a Castle Doctrine law, but rather a Common Law, which ironically, contains much of the same statutes and wording as the castle doctrine. Combine this maze of laws with the Stand Your Ground law and you have Common Law, sort of…

Additionally, in Barton vs State, 420 A.2d 1009 (MD Ct. App 1980), [Deadly force permissible in defense of dwelling under felonious attack]: A man is not bound to retreat from his house. He may stand his ground there and kill any person who attempts to enter by force for the purpose of committing a felony, or inflicting great bodily harm upon the inmate. In such a case, any member of the family, or even a lodger in the house, may meet the intruder at the threshold, and prevent him from entering by any means rendered necessary by the exigency, even to the taking of his life, and the homicide will be justifiable”.

In reading the Castle Doctrine, Common Law proper, one would think anyone can kill someone who enters by force, period. Wrong.

The word “felony” and “great bodily harm” is descriptive of the attack taking place. Meaning if the home invader is trying to escape or run to exit the scene, you are not allowed to engage him or them with deadly force.

As described in Black’s Law Dictionary, Abridged Tenth Edition, Bryan A. Garner, Editor in chief: Castle doctrine. (1892) Criminal law. An exception to the retreat rule allowing the use of deadly force by a person who is protecting his or her home and its inhabitants from attack, esp. from a trespasser who intends to commit a felony or inflict serious bodily harm—also termed dwelling defense, defense of habitation. See retreat rule. felony, n. (14c) 1.A serious crime, usu. punishable by imprisonment for more than one year or by death. * examples include burglary, arson. rape and murder. —also termed major crime, serious crime, Cf. misdemeanor.

Another old English law is the “reasonable man standard”, recently modified to the “reasonable ‘person’ standard”. The definition in this legal standard is what would a reasonable person do in your shoes at the time and under the circumstances you were faced with at the time of the incident. If your actions were not deemed “reasonable” then your chances of being acquitted of a crime is slim to none. The Castle Doctrine and the Reasonable Person Standard go hand in hand, as with Common Law.

Peeping Toms – With respect to peeping toms, while you may want to exact revenge by physically assaulting or, “citizen’s arrest” them and so forth, be very careful. Our laws and legal system don’t allow for a person to inflict injury or falsely imprison a demented person. Peeping toms are classified as non-violent offenders, in many cases they are mentally challenged, and this could be used against you, should you harm them with violence.

The Rules of Engagement for Simple Trespass, Mistaken Address – This one is easy. From a distance, ask how you can help the distressed. If they attempt to come closer to communicate, ask them to stay the distance and speak louder. Remember, kindness to a criminal is weakness, however, some folks genuinely do need help. If they knock on your door asking for help, it is suggested you keep the doors locked and communicate through the locked door as best you can.

Protecting your “Castle” – The ULTIMATE OUTCOME depends on the totality of the circumstances and your preparedness.

For online readers, please visit Castle Doctrine from State to State from South University in Savannah, Georgia…

And a great resource for the Armed Citizen, The Arm’s Citizen Legal Defense Network,

Crime is mobile, never consider your castle safe, unless you have taken extra measures to ensure that it is. Fire drills and home invasion drills, can save lives.

Stay safe.