Is The "Castle Doctrine" A Valid Defense?

13 July 2015
 Categories: Law, Blog


What happens if you end up in a fight and you use lethal force against your attacker? You could find yourself facing murder charges. If the fight occurs inside your own home, however, the "Castle Doctrine" may provide you with a valid defense. This is what you should know.

The laws vary greatly from state to state.

The Castle Doctrine (also known as "Make My Day" laws) gives people the right to protect themselves with deadly force under certain, very limited, circumstances. Almost all states have some form of the law, the only exceptions being Nebraska, New Mexico, South Dakota, Vermont, and the District of Columbia.

The laws in each state vary considerably, though, so what can be considered justifiable in one state could end up being murder or manslaughter in another. It all depends on the relative strength of your particular state's Castle Doctrine.

For example, in Texas, where there is a strong Castle Doctrine, you can defend your home, car, or place of business from anyone who has forcibly entered it (or is trying to do so). You have no duty to attempt to retreat, even if you could safely do so. You need only have the reasonable belief that the intruder was attempting to commit a burglary, kidnapping, assault, murder, or sexual assault.

In states where the Castle Doctrine is weak, like Maine, the duty to retreat is not specifically removed and you have to first demand that the intruder stop what they are doing and leave before you can legally react with deadly force.

Remember that the burden of proof is on you.

If you elect to use the Castle Doctrine as a defense, you have the burden of proof to show that you acted within the boundaries of your state's version of the law. While a local criminal defense attorney is the best person to advise you, here are some things to consider:

  1. Your physical location is very important. You must be inside the structure that you are defending, and it must generally be your place of residence (except in states where you are allowed to also defend your car or place of business). You can't set a booby-trap for intruders when you aren't home, either.
  2. You cannot use deadly force against an ordinary trespasser. For example, you cannot fire a shot at someone who is simply walking across your property. The individual has to be actually inside (or attempting to break inside) your property.
  3. You cannot be the aggressor in the situation. In other words, you cannot invite someone over, get into an argument with him or her and turn a gun on the individual.
  4. You cannot use deadly force against lawful entry by police officers.
  5. You may have to prove that your use of force is reasonable, given the situation. Again, this depends on your particular state -- in some states, the intruder's presence in your home is considered evidence enough of his or her unlawful intent. In other states, you have to show that you had some cause to believe that the person intended to harm you in some way.

The best solution, if possible, is to safely retreat -- regardless of what the law permits. It's always safer to avoid a fight when you can, especially when weapons are involved. However, if there's been an incident within your home that turned deadly, talk to your attorney about using the Castle Doctrine as a defense. For more information, contact a criminal lawyer like Alvine & King LLP.