Barry Jacobs,

Pretty good summary. I could pick some nits, but overall, pretty solid and concise! The underlying problem is that (in most cases where a DGU is subsequently prosecuted), you are judged by 12 people (how many of them own guns, or have ever even fired a gun???), in the calm environment of a courtroom (guarded by armed LEOs). A little different than facing an intruder in your house at night, eh???

Tim,

One word response: “Austin” (Houston and San Antonio pretty much suck, too).

.40 cal,

Well, being a nitpicky ex-lawyer, my response is “it depends”. Depends on the exact terms and wording of your state “castle doctrine”, and even more on ‘how is it applied?’. Many (most?) ‘castle doctrine’ states do extend it to the ‘curtilage’, but not all. In a rational world, it should be a federal law, in support of the 2A – if I can’t defend my home, property, and family, what the hell does the 2A even mean??? But, we live in a world of roughly 50% Leftists/fascists, so whaddayagonnado???

uncommon,

Objection, Counselor, assuming facts not in evidence. You are assuming, arguendo, that they WANT the moderation system to work, and be rational. Why do that, when you can be arbitrary and capricious, instead?? Like TTAG, they CLAIM to have a ‘moderation policy’, but in reality their policy boils down to, “If we don’t like it, we’ll take it down”. I have challenged BOTH SNW and TTAG to simply . . . publish their moderation policy. Tell me what I am and am not allowed to post, and then make at least a modest effort to consistently apply that policy. Neither site is willing to do so. But they continue to lie, and assert that they have a “policy”, and that they apply it consistently, and that it doesn’t vary from moderator to moderator (or what the moderator had for breakfast).

They don’t want robust discussion and debate, they want ‘moderator-approved’ discussion and debate. I am prepared to observe any policy they publish (IF they consistently apply it), or, if I find it too obnoxious, simply move elsewhere. There are some smart, insightful commenters on both sites, and I enjoy the insights even of the ones I disagree with (Debbie Dimwit and MajorSkidmarks excepted). But I guess rationality and consistency is too much to expect.

I’m going to be very wary of five-year olds now.

And, before depending on one’s own interpretation of the law – those “words” again – it is highly advisable to consult with an attorney licensed to practice law in the jurisdiction where the question arises who practices criminal law, and specifically, the self defense portion of criminal law. Not that you can trust his, or her, word as “gospel” because prosecutors are different and sometimes (Blue states) extremely different but if the attorney has courtroom experience defending clients against criminal charges arising from self defense that experience and the knowledge gained from it provides useful information (extra points if those courtroom defenses have been predominantly successful. And, as a side note, attorneys who routinely manage to get charges dismissed well prior to anything arriving in a courtroom are higher value than those who usually win cases inside the courtroom).

Let’s talk common law, which is the baseline in the US (and the UK and most countries formerly part of the British Empire)–the common law is generally what governs if some authority hasn’t made some statutory change. Most states haven’t moved far from common law principle.

At common law, a person may lawfully use defensive force (up to and including deadly force) to prevent an assailant from unlawfully causing serious bodily harm or death to the person or another subject to the following conditions:

a) the person using such defensive force must not have been the initial aggressor in the current altercation (that is, you can’t start a fist fight, and then, when you start to get your ass kicked, pull out a gun and claim self defense). In theory, this gets reset when the aggressor stops his aggression and clearly withdraws from an altercation. In real life, it’s going to be hard for you to successfully claim self defense if you shoot someone right after you’ve started a tussle with them, no matter how explicitly you’ve tried to withdraw, unless you’ve entirely left the scene (and even then).

b) one must reasonably believe that serious bodily harm or death is imminent–that is, about to happen right now. Not five minutes from now, not next week. Right now unless defensive action is taken. You can still make a self defense claim if you are mistaken about the threat (e.g., if the robber turns out to have a convincing toy gun rather than the real thing), but that mistake must be one a reasonable person of average intelligence would make in a similar situation.

c) the force used must be reasonable–that is, it must be reasonably likely to prevent the harm and it must be the least possible degree of force necessary and available to prevent the harm. So if a five-year-old charges at you with an aluminum bat, you can use force to wrench it out of his hand. Depending on your stature, you might even get away with smacking him or something similar to keep him from hitting you. What isn’t going to fly is shooting him, because that’s a degree of force that is way out of line with the threat posed by any five year old and you almost certainly had lots of less devastating options short of shooting him that would suffice. Similarly, if you see a train barreling down on a school bus that’s stuck on the railroad tracks, you claim defense of others (or even self defense if you’re on the bus) because despite the imminent risk of catastrophic harm, shooting the engineer isn’t going to mitigate that risk, so it’s not a reasonable use of force.

d) if it’s possible to avoid the harm by retreating, you must do so (or attempt to do so) before resorting to defensive force. This element (and only this element) is mitigated by the Castle Doctrine (if you’re lawfully in your own home and your assailant is not also lawfully there). With various nuances, it’s also mitigated by stand-your-ground laws in states that have them. The UK has all but entirely renounced the Castle Doctrine, which, imo, is a very bad policy move. Note, btw, that stand-your-ground laws were initially conceived to protect battered women who could not avail themselves of the Castle Doctrine defense when they shot their abuser because he lived with them and was lawfully present.

e) The assailant has to be acting unlawfully. You can’t shoot the executioner at a state-sanctioned execution, or, again, the engineer on that train that’s about to hit the school bus.

As a general proposition, self defense is a much harder defense to successfully claim than it appears on TV. Quite often, even successful self defense claims are vindicated after and indictment and trial (which will bankrupt most of us). There are lots of ways to blow it, one of the most common being escalating to gunfire before it’s reasonably necessary. That seems to surprise a lot of people who have bought into the mythology of “if he’s in my house I can shoot him.” Being too trigger happy can land you in prison for life, and worse, it can result in the death of some innocent. I’m 100% in favor of defensive use of firearms, but I urge everyone to make it a last resort. Know what you’re shooting at and be sure you don’t have other options.

Under state law where I live curtilage is the area next to (immediately surrounding a home) a person’s home and includes the yard (no matter how big it is – fenced or not), gardens, porch, patio, driveway, any detached garage (an attached garage here is considered a physical part of the home its self), sidewalks or ‘stoned’ pathways or ‘steps’ leading to or away from the home or other areas on the property, and other areas (on the property) for any outbuildings and the areas ‘immediately’ around such outbuildings, but its also areas on the property that are afforded privacy protections under the law (i.e. privacy fenced areas or areas on the property where a person can be where they would not normally seen from, say, the road way – here the law does not define where on a persons property such privacy protection areas may exist in terms of curtilage so say, for example, if there is a wooded area on your property starting at the edge of your mowed lawn and if you could not normally be seen in that wooded area from the road way then that too is an area afforded privacy protections under the law thus curtilage.).

But, even though the state law says this – courts apply a four factor test from the Supreme Court case United States v. Dunn on a case-by-case basis to determine what is or is not curtilage so its possible an ‘area’ that under state law is curtilage may not be curtilage for castle doctrine for the specific situation of defense. For example, if RayRay tries to break into your home and he stops and runs off elsewhere in the property and you decide to go make sure he has not broken into that outbuilding 100 yards away from your home where you keep your expensive ‘something’. When you get to the outbuilding you encounter RayRay but hes not breaking into the outbuilding but he starts threatening you and then charges you and you shoot him – so it happens that you need to go to court over this and you claim a castle doctrine defense because the state law says its curtilage but the court may apply the four part test and decide that castle doctrine did not apply in terms of curtilage because the area of the outbuilding although curtilage under state law in the specifics of the situation 100 yards away from the home may not qualify it as curtilage for castle doctrine purposes (although under stand-your-ground you would be ok).