The Castle Doctrine at work!

[Rich-D]

An example of why all States should incorporate the Castle Doctrine!

"In the past 4 1/2 months, six Central Floridians met firepower with firepower when they witnessed or were victims of a robbery. The past four times, a robber ended up dead."

Full Article: http://www.orlandosentinel.com/features/lifestyle/orl-castle-doctrine-shooting-050050409may04,0,5263537.story

Rich

[JBGW]

I believe that there is subtle mis-characterization of the attorneys quote.
The castle doctrine while assuring that one has the right to defend ones self, not only while at home, but in most instances where you have a legal right to be, goes on the presumption that if a person is univited in your home, they ARE there to do harm...

[Aguila Blanca]

A very poorly written article that creates as much confusion as it attempts to remove.

First off, the author seems to use the terms "burglar" and "robber" interchangeably. But they are not interchangeable. Although a "burglar" might inadvertently encounter a homeowner in the course of committing a burglary, typically burglars do not expect or intend to engage in face-to-face encounters. They want to sneak in, grab the stuff, and get out before they are discovered. A "robber," by contrast, intentionally engages in face-to-face (or face-to-mask) encounters.

Secondly, the castle doctrine goes all the way back to English common law. It applies to protecting your home -- your "castle." Recent laws in Florida and a few other states that allow citizens to use deadly force in self-defense without first requiring that the victim attempt to retreat are often written about in the media as being the "castle doctrine" or as being "extensions of" the castle doctrine.

When I am downtown on the corner of First and Main, I am not at home and I am not in my castle. I don't think it is accurate the describe a law giving me the right to defend myself there as the castle doctrine. It might be regarded as an "extension" of the castle doctrine, but it makes far better sense (IMHO) to describe such laws as what they are: "No duty to retreat" laws. The fact is, the rules on the street are different from the rules in your castle. In virtually every state, the people have a right to defend themselves, using force if necessary and even deadly force if necessary. The issue is whether or not the victim must make an attempt to retreat from the attack before he/she is legally allowed to use deadly force in defense of him/herself.

That doesn't have to do with the "castle." It deals with whether or not you perceive that it is possible to retreat "in safety" (which is what duty to retreat laws typically toss in) before you resort to using deadly force in self-defense. In all but one or maybe two states, no retreat was ever required within the home, and that's why i don't believe it is accurate to call these new "no duty to retreat" laws castle doctrine. Doing so creates confusion.

[Chilo45]

While Oregon does not have a castle doctrine law, my state has gone another route, while there have been several bills introduced in the State Legislature to bring the Castle Doctrine to Oregon, none have made it very far. However, the Oregon Supreme Court recently made the point moot when they ruled that existing Oregon law did not include a “duty to retreat”: (information that follows can be found HERE (http://fingolfen.blogspot.com/2007/03/oregon-supreme-court-affirms-no-duty-to.html) )

In their decision, State of Oregon v. Sandoval, the Supreme Court correctly notes that Oregon law contains no requirement to retreat from an attacker and that previous rulings to the contrary are not only incorrect, but obviously so,

The Court noted "On a purely textual level, ORS 161.219 contains no specific reference to "retreat", "escape," or "other means of avoiding" a deadly confrontation. Neither, in our view, does it contain any other wording that would suggest a duty of that kind."

It went on to describe a previous Supreme Court ruling this way: "The court's analysis did not focus on or even consider the words of the statutes that we now recognize to be pivotal." and "We conclude, in short, that the legislature's intent is clear on the face of ORS 161.219: The legislature did not intend to require a person to retreat before using deadly force to defend against the imminent use of deadly physical force by another."

The Supreme Court points out "Indeed, the entire analytical flow of the Charles opinion is distinctly odd: The court did not examine the wording of either ORS 161.209 or 161.219 at all... Instead, the court set out the wording that the Oregon Criminal Law Commission had proposed to the legislature regarding the use of deadly force as part of the final draft of the proposed 1971 Criminal Code, which wording explicitly imposed a duty of retreat to avoid the necessity of using deadly force. Then, after noting that the 1971 legislature had rejected that wording, the court cited a view expressed in the Oregon Criminal Law Commission's Commentary to the 1971 Code to the effect that "the statute probably was not necessary" because of existing Oregon case law.."

This ruling is completely consistent with the Oregon Constitution Section 27:

"Section 27. Right to bear arms; military subordinate to civil power. The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be kept in strict subordination to the civil power"

[Rich-D]

A very poorly written article that creates as much confusion as it attempts to remove.

First off, the author seems to use the terms "burglar" and "robber" interchangeably. But they are not interchangeable. Although a "burglar" might inadvertently encounter a homeowner in the course of committing a burglary, typically burglars do not expect or intend to engage in face-to-face encounters. They want to sneak in, grab the stuff, and get out before they are discovered. A "robber," by contrast, intentionally engages in face-to-face (or face-to-mask) encounters.

It is a misconception to think that the legal term burglary, is not to be associated with crimes of violence. Burglary is the act of breaking the security of a structure, car, or secure area with the intent of committing a crime. The crime could be Rape, Murder, Robbery, Theft, Kidnapping,Terroristic Threats etc.

Burglary often referred to as Breaking and Entry is the first part of a crime. It should also be noted that the Breaking and Entry refers to breaching the security of a structure, Vehicle or Secure Area. iI does not require an act of forcible entry, it is the unlawful entry itself, which can be made through an unlocked door or window, coupled with the intent to commit a crime.

Rich

[Chilo45]

Aguila Blanca noted:
That doesn't have to do with the "castle." It deals with whether or not you perceive that it is possible to retreat "in safety" (which is what duty to retreat laws typically toss in) before you resort to using deadly force in self-defense. In all but one or maybe two states, no retreat was ever required within the home, and that's why i don't believe it is accurate to call these new "no duty to retreat" laws castle doctrine. Doing so creates confusion.

Each state's law is just that - the law in place for that state. To make comparisons based on your understanding of the term "Castle Doctrine" further compounds the problem.

As my post stated, Oregon went in an entirely different direction regarding "Castle Doctrine" and/or "No Retreat" in that the state Supreme Court ruled that the Oregon Constitution gives these rights to the gun owner - period. Just like the USSC should rule on 2nd Amendment - the right to bear arms and defend.

[BluegrazzGuy]

I'm sure the term "burglary" is defined differently in different states. In mine (Kentucky), it essentially means someone trespassing with intent to commit another crime. The degree of burglary is dependent upon the circumstances; e.g., whether the burglar has a deadly weapon. Some states distinguish whether the entry is made into a dwelling or whether it is during the day or night. Most burglars enter to steal but the other crime might also include rape, kidnapping, etc.

Kentucky passed a statute enacting both the "No Duty to Retreat" and the "Castle Doctrine." It had limited application to criminal law, IMHO, since case law had long established there was no duty to retreat including a somewhat famous declaration that, "A Kentuckian never retreats." It did include good provisions in civil law by requiring the offender to pay the citizen's legal fees if he sues and loses.