Is a Man’s Home Really His Castle?

The nationwide outcry over the recent shooting of seventeen-year-old Trayvon Martin by a neighborhood watch coordinator in Florida has renewed the public debate about self defense laws.  Collectively referred to as the “castle doctrine,” states have enacted various forms of statutes that permit homeowners to use deadly force in defending themselves against home invaders.  In fact, it was Florida’s 2005 castle doctrine statute that spurred many other states to make similar changes to their laws.  The North Carolina General Assembly made some major changes to our own castle doctrine just last year.

But precisely what is meant by the term “castle doctrine” is sometimes obscured in the debates of its merits.  The expression has its roots in the English common law, which generally imposed a duty to retreat when confronted with the threat of harm but recognized an exception for the home, based on the idea that “a man’s home is his castle.”  In modern parlance, the phrase “castle doctrine” is often used as an umbrella term for laws governing when there is a duty to retreat—be it in one’s home or out in public.  Some states, such as New York, emphasize the exceptionality of the home and otherwise impose a duty to retreat.  Other states extend the no-retreat protection more broadly.  The Florida statute, for example, provides that “[a] person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force. . . .”  This broader type of statute is often referred to as a “stand your ground” law.  (This article will use the narrower definition of the castle doctrine, focusing on the law as it applies to the home, workplace, and motor vehicles.  Look for a future article regarding the broader “stand your ground” laws.)

In Session Laws 2011‑268, the North Carolina General Assembly made several changes governing the use of defensive force and the right to own, possess or carry firearms.  Effective December 1, 2011, the Act repealed N.C.G.S. § 14-51.1, which limited the castle doctrine to defense of the home and replaced it with the more detailed provisions of §§ 14-51.2 through 14-51.4.  Located within the article on burglary, the new sections expand North Carolina’s castle doctrine in several significant ways.  § 14-51.2 extends the scope of protection from the home to include vehicles and workplaces and creates a rebuttable presumption that the person using deadly force to defend himself against an unlawful, forcible entry in these locations “held a reasonable fear of imminent death or serious bodily harm,” subject to certain exceptions.  This section also explicitly grants immunity from civil or criminal liability for the use of force as permitted by the statute and provides that there is no duty to retreat when lawfully occupying a home, motor vehicle or workplace.

§ 14-51.3 grants this same immunity from liability for the justified use of force in defense of person but does not extend the rebuttable presumption of fear of death or bodily harm beyond that provided in the previous section.  This section draws the line between the justified use of deadly force and non-deadly force.  “A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that the conduct is necessary to defend… against the other’s imminent use of unlawful force.”  The use of deadly force is justified and there is no “duty to retreat in any place [one] has the lawful right to be” if that person “reasonably believes that such force is necessary to prevent imminent death or great bodily harm” or “[u]nder the circumstances permitted pursuant to [N.C.] G.S. 14-51.2.”

§ 14-51.4 eliminates or limits the justification for the use of defensive force under the above sections if the person using defense force was involved in the commission of a felony or “initially provoke[d] the use of force against himself. . . .”

Professor E. Gregory Wallace, who teaches criminal procedure and constitutional law at Campbell University School of Law, believes North Carolina’s formulation of the castle doctrine is well-drafted.  “The castle doctrine properly recognizes that there are situations where a person may exercise the long-established right of self defense without unduly sacrificing one’s liberty,” says Wallace.  “Practically,” he adds, “it recognizes the difficulty of imposing a ‘duty to retreat’ in places where the need for or path of retreat would be difficult to determine.  It also prevents overzealous prosecutors from bringing criminal cases against legitimate defenders.”

But granting the right of lethal self defense is not without costs.  UCLA School of Law Professor Eugene Volokh points out in his blog, the Volokh Conspiracy, that the right to use deadly force carries with it the risk of accidents, “false claims of self-defense being used as a cover for murder”, harm to innocent bystanders, and “a risk that even a justifiable killing will lead to a cycle of retaliation. . . .”  Despite these potential costs, most states have retained or even expanded the right to use deadly force in self defense.  The state’s objective, Volokh emphasizes, is to minimize these costs by such measures as banning the possession of deadly weapons, requiring the defendant to prove that he was acting in self-defense, or imposing a duty to retreat.

North Carolina’s castle doctrine “strike[s] a reasonable balance between the right to self defense and public safety,” says Professor Wallace.  The presumption of a reasonable fear of imminent death or serious bodily harm and the absence of a duty to retreat in the home, workplace or motor vehicle “protects the victim by not requiring that he risk attempting to escape before responding.”  But these protections are properly limited.  The presumption is rebuttable and does not apply “for anyone using deadly force against police, bail bondsmen, legal inhabitants of the dwelling, or invaders fleeing the dwelling and for anyone unlawfully present or committing a felony.”

Joel Schlieman, former Raleigh Police Officer and current 2L at Campbell Law School, strongly supports the revamped castle doctrine.  As a husband, father, and homeowner, Schlieman says the newly changed law gives him greater confidence in his right to defend his home and family without being subject to criminal or civil liability.  As a former police officer, he believes the changes will make the job of law enforcement easier by enabling citizens to avoid becoming victims of crimes and by deterring criminals from committing those crimes in the first place.  “Physical confrontations are a very fluid, unpredictable thing,” says Schlieman, having dealt with many such situations first-hand.  “The justification to use deadly force can arise quickly and unexpectedly, and I favor giving people as many tools as possible to defend themselves.”

Nationally, the merits of the castle doctrine remain hotly contested.  North Carolina, though, has made it clear that a man’s home, as well as his car and his workplace, is his castle.  In these three locations, the law strongly favors the right to use deadly force in self-defense. But a castle is not a fortress.  The right is carefully limited, and it remains to be seen how the new law will play out in the courtroom.


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About Jim Small, Former Senior Staff Writer (8 Articles)
Jim graduated from Campbell Law School in 2013 and received his Bachelor of Arts in Prelaw from Bob Jones University in South Carolina. He worked as a Research Assistant to Professor Amy Flanary-Smith, conducted research for McCuiston Law Offices in Cary, NC, and completed an externship in the Research Division of the North Carolina General Assembly.
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