Castle doctrine

A castle doctrine, also known as a castle law or a defense of habitation law, is a legal doctrine that designates a person's abode or any legally occupied place (for example, an automobile or a home) as a place in which that person has protections and immunities permitting one, in certain circumstances, to use force (up to and including deadly force) to defend oneself against an intruder, free from legal prosecution for the consequences of the force used. The term is most commonly used in the United States, though many other countries invoke comparable principles in their laws.
Depending on the location, a person may have a duty to retreat to avoid violence if one can reasonably do so. Castle doctrines lessen the duty to retreat when an individual is assaulted within one's own home. Deadly force may either be justified, the burdens of production and proof for charges impeded, or an affirmative defense against criminal homicide applicable, in cases "when the actor reasonably fears imminent peril of death or serious bodily harm to him or herself or another." The castle doctrine is not a defined law that can be invoked, but a set of principles which may be incorporated in some form in many jurisdictions. Castle doctrines may not provide civil immunity, such as from wrongful death suits, which have a much lower burden of proof.
Justifiable homicide, is a legally blameless killing in self-defense. A justifiable homicide that occurs within the home is distinct as a matter of law from castle doctrine, because the mere occurrence of trespassing—and occasionally a subjective requirement of fear—is sufficient to invoke the castle doctrine, under which the burden of proof of fact is much less challenging than that of justifying homicide in self-defense. However, the existence in a legal code of such a provision (of justifiable homicide in self-defense pertaining to one's domicile) does not imply the creation of a castle doctrine protecting the estate and exonerating any duty to retreat. The use of this legal principle in the United States has been controversial in relation to a number of cases in which it has been invoked, including the deaths of Japanese exchange student Yoshihiro Hattori and Scottish businessman Andrew de Vries.
The legal concept of the inviolability of the home has been known in Western civilization since the age of the Roman Republic. In English common law the term is derived from the dictum that "an Englishman's home is his castle" (see Semayne's case). This concept was established as English law by the 17th century jurist Sir Edward Coke, in his The Institutes of the Laws of England, 1628:
The term 'castle' was defined in 1763 by Prime Minister William Pitt, 1st Earl of Chatham, "The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter."
English common law came with colonists to the New World, where it has become known as the castle doctrine. The term has been used in England to imply a person's absolute right to exclude anyone from their home, although this has always had restrictions, such as bailiffs having increasing powers of entry since the late-20th century.
According to 18th-century Presbyterian minister and biblical commentator Matthew Henry, the prohibition of murder found in the Old Testament contains an exception for legitimate self-defense. A home defender who struck and killed a thief caught in the act of breaking in at night was not guilty of bloodshed. "If a thief is caught breaking in and is struck so that he dies, the thief owes no blood-debt to the home-defender; but if the thief lives, he owes a blood-debt to the home-defender and must make restitution."
By the 18th century, many US state legal systems began by importing English common law such as Acts of Parliament of 2 Ed. III (Statute of Northampton), and 5 Rich. II (Forcible Entry Act 1381) in law since 1381—which imposed criminal sanctions intending to discourage the resort to self-help. This required a threatened party to retreat, whenever property was "involved" and resolve the issue by civil means.
Then as now, there were English politicians who were for or against the use of self-help over state-help. William Blackstone, in Book 4, Chapter 16 of his Commentaries on the Laws of England, proclaims that the laws "leave him (the inhabitant) the natural right of killing the aggressor (the burglar)" and goes on to generalize in the following words:
Not only was the doctrine considered to justify defense against neighbors and criminals, but any of the Crown's agents who attempted to enter without a proper warrant as well. Prohibitions of the Fourth Amendment to the United States Constitution share a common background with current castle doctrine laws.
In 1841, The Preemption Act was passed to "appropriate the proceeds of the sales of public lands... and to grant 'pre-emption rights' to individuals" who were already living on federal lands (commonly referred to as "squatters"). During this same period, claim clubs sprung up all over the US advocating vigilance and the castle doctrine. This was in concurrence with the culture of manifest destiny which led to westward expansion and the American Indian Wars, the last of which ended by the 1920s.
On the American frontier, the doctrine of no duty to retreat extended outside a residence. It asserted that a man in an altercation that he did not provoke was not obliged to flee from his attacker, but was free to stand his ground and defend himself. A state Supreme Court justice wrote in 1877,
American West historian Richard M. Brown wrote that under the circumstances, for a man in the American West to flee under such circumstances would be cowardly and un-American. Legendary dentist and gambler Doc Holliday successfully used this defense when he shot Billy Allen as he entered a saloon. Holliday owed Allen $5 (equivalent to $170 in 2024) which Allen wanted paid and had threatened Holliday. Although Allen was unarmed at the time, Holliday had received reports that Allen had been armed and looking for him earlier in the day. During the subsequent trial, Holliday asserted he was within his rights and the jury agreed. He was acquitted on March 28, 1885.
In Ancient China, various versions of the castle doctrine existed. According to Han dynasty legal scholar Zheng Zhong [zh], the doctrine extends protection onto rooms and other (including very rudimentary) place of dwelling, vehicles (such as carts), and ships: "It is not guilty to immediately assault and kill someone who, without cause, enters another's room or place of dwelling, vehicle, or ship, and with the intention of committing a crime." (Chinese: 若今時無故入人室宅廬舍，上人車船，牽引人欲犯法者，其時格殺之，無罪) During the Qin dynasty, the laws further extend castle doctrine protection against intrusion by the police or officials during the night. According to the Laws Governing Arrests (捕律): "It is forbidden for the police to enter other's room or place of dwelling during the night for the purpose of conducting an arrest, if the police violate this law, and is injured by (those in) the room, the police shall be treated as someone who enters another's room without cause" (捕律：禁吏毋夜入人廬舍捕人。犯者，其室毆傷之，以毋故入人室律從事). In the later Han dynasty, the most extreme interpretation of the doctrine was enacted, making it legal for those in a dwelling to assault and kill anyone, including the police and other officials, who enters a house during the night, regardless of cause.
Later dynasties such as the Tang, Ming, and Qing retained the doctrine but only during the night, and extending protection only for the owner of the dwelling: making it legal for the owner a house to assault and kill trespassers at night without being guilty of crime, and without being charged or the need to argue one's case before a court. For example the Tang Code states that "If someone enters someone else's house without reason at night, they will be lashed with forty strokes. If the homeowner kills the intruder immediately, there will be no charges (諸夜無故入人家者，笞四十。主人登時殺者，勿論). The Great Ming Code (大明律) states "Anyone who enters someone else's house at night without reason will be punished with eighty strokes of the cane. If the homeowner kills the intruder immediately, there will be no charges" (凡夜無故入人家內者，杖八十。主家登時殺死者，勿論).
The Chinese version of the castle doctrine is most likely a reflection of contemporary popular attitude, articulated in numerous historical poems and literature, that anyone who enters a civil dwelling at night is presumed to be either a rapist or a thief/robber (夜入民宅，非奸即盜).
Today, the penal and civil forcible-entry laws of most American states forbid the use of force in the recovery of possession of land. At most the Castle Doctrine is an affirmative defense for individuals inevitably charged with criminal homicide, not a permission or pretext to commit homicide—which is generally unlawful. A minority of states permit individuals who have the right of immediate possession of land to use reasonable force to regain possession of that land, with Texas being the only state to allow the use of deadly force to regain possession of land or property.
The term "make my day law" came to be used in the United States in 1985 when Colorado passed a law that shielded people from any criminal or civil liability for using force against a home invader, including deadly force. (The law's nickname is a reference to the line "Go ahead, make my day" (meaning 'do something so I have an excuse to kill you') uttered by actor Clint Eastwood's character "Dirty Harry" Callahan in the 1983 police film Sudden Impact.)
Each jurisdiction incorporates the castle doctrine into its laws in different ways. The circumstance in which it may be invoked include the premises covered (abode only, or other places too), the degree of retreat or non-deadly resistance required before deadly force can be used, etc. Typical conditions that apply to some castle doctrine laws include:
In Colorado, the make-my-day statute provides the occupant with immunity from prosecution only for force used against a person who has made an unlawful entry into the dwelling; not against a person who remains unlawfully in the dwelling.
In addition to providing a valid defense in criminal law, many laws implementing the castle doctrine, particularly those with a "stand-your-ground clause," also have a clause which provides immunity from any civil lawsuits filed on behalf of the assailant (for damages/injuries resulting from the force used to stop them). Without this clause, an assailant could sue for medical bills, property damage, disability, and pain and suffering as a result of the injuries inflicted by the defender; or, if the force results in the assailant's death, their next-of-kin or estate could launch a wrongful death suit. Even if successfully rebutted, the defendant (the homeowner/defender) would still have to pay high legal costs leading up to the suit's dismissal. Without criminal/civil immunity, such civil action could be used as revenge against a lawfully acting defender (who was, originally, the assailant's victim).
Use of force in self-defense which causes damage or injuries to other, non-criminally-acting parties, may not be shielded from criminal or civil prosecution, however.
In US jurisdictions where the Castle Doctrine applies, there is no duty to retreat before deadly force is used against an intruder by a person in their home or, in some jurisdictions, just simply where the person can legally be.
Most states in the United States have stand-your-ground laws where individuals can use deadly force in self-defense in any location one is legally allowed to be without first attempting to retreat.
In Colorado, the make-my-day statute "was not intended to justify use of physical force against persons who enter a dwelling accidentally or in good faith." In other words, "the unlawful entry element requires a culpable mental state of 'knowingly' on the part of the intruder."
A list of states and their most applicable body of law to justifying homicide in protection of the abode is listed below. Because not all states truly invoke castle doctrine, justifiable homicide in defense of life—which is nearly universal in adoption, but with narrower application—is often what is invoked as a pretext to protect the home. However, the mere fact that one is trespassing is an inappropriate or inadequate defense per se to justifying homicide in many states.
The castle doctrine in its traditional absolute and extrajudicial form is antiquated in most states. However, its vestige saliently remains as a set of principles which are incorporated to a variegated extent through both statutory and case law. It is commonly manifested as an affirmative defense to criminal homicide that occurred within a home; in some states though it slightly enhances the conditions for justifiable homicide in self-defense by laying down no duty to retreat or avert a violent encounter, or by even granting a blanket rebuttable presumption of required killing in defense of life. Where principles are statutized in a penal code, a homicide may be excused criminally, but be a wrongful death civilly. In a strict sense, simple justifiable homicide in self-defense which happens to occur inside one's home is actually distinct as a matter of law from castle doctrine's no duty to retreat in defense of one's domicile. Self-defense protects life while castle doctrine defends estate. While most American states forbid the use of force in the recovery of possession of land, a minority of jurisdictions do invoke pure castle doctrine which unconditionally authorizes violent self-help in protection of one's domicile.
These states uphold castle doctrine in general, but may rely on case law instead of specific legislation, may enforce a duty to retreat, and may impose specific restrictions on the use of deadly force:
Australian states have differing self-defense laws. Under South Australian law, the general defense appears in s15(1) Criminal Law Consolidation Act 1935 (SA) for defending a person's life, and s15A(1) for defending property, subject to a hybrid test, i.e. the defendant honestly believed the threat to be imminent and made an objectively reasonable and proportionate response to the circumstances as the accused subjectively perceived them.
In July 2003, South Australia's Rann government introduced laws allowing householders to use "whatever force they deem necessary" when confronted with a home invader. Householders who kill or injure a home invader escape prosecution provided they can prove they had a genuine belief that it was necessary to do so to protect themselves or their family. The law was strongly opposed by then-Director of Public Prosecutions Paul Rofe, QC, and lawyer Marie Shaw, who is now a District Court Judge.
In February 2019, Sydney man Bradley Soper was killed when he broke into the home of Francois Schwartz. After investigation, NSW Police detectives advised not to prosecute Schwartz.
Since 1917, with the enacting of the first Brazilian Civil Code, a possessor of a thing, moveable or immoveable, is allowed, in case of disturbance ("turbação") or expulsion ("esbulho"), to "maintain or to reintegrate himself [at the possession of a thing] using its own force, as well as he does it soon". The acts of force employed by the possessor shall not exceed the necessary ones for eliminating the disturbance or for reintegration (Article 502 of the former Civil Code; Federal Ordinary Law 3.071/1917). This possibility remained untouched on the Brazilian Civil Code of 2002 (Federal Ordinary Law 10.406/2002), in its Article 1.210.
Self-defence of possession is not allowed for the cases of threat ("ameaça"). It is needed for the possessor to be effectively and physically disturbed in its possession ("turbação") or completely severed from it ("esbulho"). A possessor acting under the prescriptions of Article 1.210 of the Civil Code shall be exempt of any civil or criminal responsibility. In terms of Tort Law, Article 188, inc. I, of the Civil Code states that is not an unlawful act "the regular exercise of a right recognized by the law".
According to the Criminal Code of Canada Sections 34 and 35, (which were updated in 2012 with the passage of Bill C-26) force, up to and including lethal force may be used in defence of one's life or "peaceably" possessed property or the defence of another's life or "peaceably" possessed property, and is not considered an offence so long as the person believes that force is being used against them in the case of self-defence; that someone is about to, or has, broken into or damaged property in the case of defence of property; that they are acting in defence of themselves, someone else or "peaceably" possessed property, and that the act and degree of force is reasonable in the circumstances. The Criminal Code also lays out the factors in either case that will be used to determine what constitutes "reasonable given the circumstances". Additionally, case law in Canada has unambiguously held that the use of lethal force in defence of property alone is not reasonable. The changes made by the government were to clarify the laws involving self-defence and defence of property, and to help legal professionals to apply the law as believed to reflect the values Canadians hold to be acceptable.
Czech law abandoned the duty to retreat in 1852. Since then, the successive recodifications of criminal law lacked any such requirement. While there is no explicit castle doctrine provision in the law, the jurisprudence and court practice accept the right to use force in order to expel an invader from defender's home. In 2015 case, the Constitutional Court dismissed a conviction of a man who had shot through his front door and wounded a police SWAT member that was trying to ram through, thinking that criminals are trying to get inside. In the decision, the Constitutional Court held that "the sanctity of the home is one of the most important liberties protected by the constitutional order of the Czech Republic, thus the legitimacy of its defense cannot be put into doubt".
In English common law a defendant may seek to avoid criminal or civil liability by claiming that he acted in self-defence. This requires the jury to determine whether the defendant believed that force was necessary to defend him or herself, their property, or to prevent a crime, and that the force used was reasonable. While there is no duty to retreat from an attacker and failure to do so is not conclusive evidence that a person did not act in self-defence, it may still be considered by the jury as a relevant factor when assessing the merits of a self-defence claim. The common law duty to retreat was repealed by the Criminal Law Act 1967. This duty never existed when a person is somewhere he has a lawful right to be, but due to the repeal, now extends to public places, etc.
German law allows self-defense against an unlawful attack, without any duty to retreat. Courts have interpreted this law as applicable to home invasion, including the use of lethal force against law enforcement in cases where the home owner was of the mistaken belief that the intrusion was an unlawful attack on his life.
Under the terms of the Criminal Law (Defence and the Dwelling) Act 2011, property owners or residents are entitled to defend themselves with force, up to and including lethal force. Any individual who uses force against a trespasser is not guilty of an offense if he or she honestly believes that the intruder was there to commit a criminal act and posed a threat to life. However, there is a further provision which requires that the reaction to the intruder is such that another reasonable person in the same circumstances would likely employ. This provision acts as a safeguard against grossly disproportionate use of force, while still allowing a person to use force in nearly all circumstances.
The law was introduced in response to DPP v. Pádraig Nally. The Act largely places previous Irish common law jurisprudence regarding self-defense on a statutory footing.
Israeli law allows property owners to defend themselves with non lethal force and with a duty to retreat. This law was introduced in response to the trial of Shai Dromi, an Israeli farmer who shot Arab intruders on his farm late at night in 2007.
Italy passed a law in 2005 that allowed property owners to defend themselves with force but required proof that the intruder posed an immediate physical threat. In 2019, the law was expanded to say that a property owner can protect their property with a firearm against perceived threats without fear of being prosecuted. The law also offers free legal aid and defence counsel costs for those who kill or injure an intruder.
Swedish self defence law allows for defence of property (not only one's home) as well as persons. The force used in defence must not be obviously disproportionate to that which is under threat. That is, deadly force can not be used in self defence unless the threat includes deadly force, for example against a simple theft. Sweden also has a citizen's arrest law that provides for arresting e.g. trespassers until police arrives.