Misplaced Pages

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114-841: The alternative to stand your ground is "duty to retreat". In jurisdictions that implement a duty to retreat, even a person who is unlawfully attacked (or who is defending someone who is unlawfully attacked) may not use deadly force if it is possible to instead avoid the danger with complete safety by retreating. Even areas that impose a duty to retreat generally follow the " castle doctrine ", under which people have no duty to retreat when they are attacked in their homes, or (in some places) in their vehicles or workplaces. The castle doctrine and "stand-your-ground" laws provide legal defenses to persons who have been charged with various use-of-force crimes against persons, such as murder, manslaughter, aggravated assault, and illegal discharge or brandishing of weapons, as well as attempts to commit such crimes. Whether

228-475: A binding precedent, but all may be cited as persuasive, or their reasoning may be adopted in an argument. Apart from the rules of procedure for precedent, the weight given to any reported judgment may depend on the reputation of both the reporter and the judges. The legal systems of the Nordic countries are sometimes included among the civil law systems, but as a separate branch, and sometimes counted as separate from

342-534: 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

456-455: A degree of force which he or she reasonably believes to be necessary for the purpose. A person may use deadly physical force, and is legally presumed to be justified in using deadly physical force in self-defense or the defense of another person pursuant to subdivision (4), if the person reasonably believes that another person is: (1) Using or about to use unlawful deadly physical force. (2) Using or about to use physical force against an occupant of

570-468: 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

684-456: A dwelling while committing or attempting to commit a burglary of such dwelling. (3) Committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree, forcible rape, or forcible sodomy. (4) In the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered, a dwelling, residence, or occupied vehicle, or federally licensed nuclear power facility, or

798-428: A dwelling, residence, or occupied vehicle in violation of an order of protection, restraining order, or condition of bond is presumed to be doing so with the intent to commit an unlawful act regardless of whether the person is a resident of the dwelling, residence, or occupied vehicle including, but not limited to, an owner, lessee, or titleholder. Case law Case law , also used interchangeably with common law ,

912-431: A felony, or against any person or persons who manifestly intend and endeavor, in a violent, riotous, tumultuous or surreptitious manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein. 2.  A person is not required to retreat before using deadly force as provided in subsection 1 if the person: (a) Is not the original aggressor; (b) Has

1026-414: A higher court. An appellate court may also decide on an entirely new and different analysis from that of junior courts, and may or may not be bound by its own previous decisions, or in any case, may distinguish them on the facts. Where there are several members of a court deciding a case, there may be one or more judgments given (or reported). Only the reason for the decision of the majority can constitute

1140-467: 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

1254-409: 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

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1368-427: A jurisdiction follows stand-your-ground or duty-to-retreat is just one element of its self-defense laws. Different jurisdictions allow deadly force against different crimes. All American states allow it against prior deadly force, great bodily injury , and likely kidnapping or rape ; some also allow it against threat of robbery and burglary . A 2020 RAND Corporation review of existing research concluded: "There

1482-449: A limited castle doctrine , by excluding punishment if the defendant used excessive force while protecting one's home unless "exceeding the limits of necessary defense was gross". If the self-defense was excessive, its perpetrator is not to be punished if he or she exceeded on account of fear or rage justified by the circumstances of the attack. Stand-your-ground laws are frequently labeled "shoot first" laws by opposition groups, including

1596-522: A man may assemble people together lawfully without danger of raising a riot, rout, or unlawful assembly, in order to protect and defend his house; which he is not permitted to do in any other case. 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

1710-552: A much smaller role in developing case law in common law than professors in civil law. Because court decisions in civil law traditions are historically brief and not formally amenable to establishing precedent, much of the exposition of the law in civil law traditions is done by academics rather than by judges; this is called doctrine and may be published in treatises or in journals such as Recueil Dalloz in France. Historically, common law courts relied little on legal scholarship; thus, at

1824-665: A new precedent of higher authority. This may happen several times as the case works its way through successive appeals. Lord Denning , first of the High Court of Justice , later of the Court of Appeal , provided a famous example of this evolutionary process in his development of the concept of estoppel starting in the High Trees case: Central London Property Trust Ltd v. High Trees House Ltd [1947] K.B. 130. The different roles of case law in civil and common law traditions create differences in

1938-437: A person is justified in the use of deadly force and does not have a duty to retreat in any place he or she has the lawful right to be if either of the following applies: (1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another. (2) Under the circumstances permitted pursuant to G.S. 14‑51.2. (b) A person who uses force as permitted by this section

2052-474: A person to use force in nearly all circumstances. The law was introduced in response to DPP v. Padraig Nally . In 2019, the Italian senate passed a "legitimate defense" bill, protecting the right to self-defense for private citizens of Italy. Stand-your-ground law applies to any kind of threat by an attacker that endangers the victim's safety, health, or life. The victim has no obligation to retreat, as said in

2166-418: 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

2280-451: A right to be present at the location where deadly force is used; and (c) Is not actively engaged in conduct in furtherance of criminal activity at the time deadly force is used. (a) 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 himself or herself or another against the other's imminent use of unlawful force. However,

2394-407: A safe and easy option, might find it harder to justify his use of force as 'reasonable'. Any force used must be reasonable in the circumstances as the person honestly perceived them to be, after making allowance for the fact that some degree of excess force might still be reasonable in the heat of the moment. In the home, the householder is protected by an additional piece of legislation in which it

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2508-430: A safe and easy option, might find it harder to justify his use of force by the need for self-defense. Any force used must be reasonable in the circumstances as the person honestly perceived them to be, after making allowance for the fact that some degree of excess force might still be reasonable in the heat of the moment. The person who performs the act is presumed to have acted in self-defense: 1° when repelling, by night,

2622-424: A saloon. Holliday owed Allen $ 5 (equivalent to $ 170 in 2023) 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

2736-552: A statement by the Supreme Court of Poland on February 4, 1972: "The assaulted person is under no obligation either to escape or hide from the assailant in a locked room, nor to endure the assault restricting his freedom, but has the right to repel the assault with all available means that are necessary to force the assailant to refrain from continuing his assault." Section 2a of the Polish Penal Code introduced in 2017 codifies

2850-408: A third person against such other's imminent use of unlawful force. (b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person. (c) Nothing in this section shall require a person to retreat if such person

2964-415: A trespasser is not guilty of an offense if he or she honestly believes they were there to commit a criminal act and 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 it. This provision acts as a safeguard against grossly disproportionate use of force, while still allowing

3078-421: A use or threat of force that the person knew was lawful. [omitted (3)] R.S., 1985, c. C-46, s. 34; 1992, c. 1, s. 60(F); 2012, c. 9, s. 2. Defence — property 35 (1) A person is not guilty of an offence if (a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds

3192-403: Is a law that is based on precedents , that is the judicial decisions from previous cases, rather than law based on constitutions , statutes , or regulations . Case law uses the detailed facts of a legal case that have been resolved by courts or similar tribunals . These past decisions are called "case law", or precedent. Stare decisis —a Latin phrase meaning "let the decision stand"—is

3306-474: 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

3420-472: Is claimed as a defense. (1) A person is justified in the use of force or threat to use force against another when and to the extent that the person reasonably believes that the use of force is necessary to prevent or terminate the other person's unlawful entry into or attack upon an occupied structure. (2) A person justified in the use of force pursuant to subsection (1) is justified in the use of force likely to cause death or serious bodily harm only if: (a)

3534-407: Is committed for the purpose of (i) preventing the other person from entering the property, or removing that person from the property, or (ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and (d) the act committed is reasonable in the circumstances. No defence (2) Subsection (1) does not apply if

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3648-410: 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 ,

3762-453: Is deemed not to be convicted of an offence until the period limited by law for the commencement of an appeal from the conviction has elapsed or the appeal taken from the conviction has concluded or been abandoned. Czech law abandoned the duty to retreat in 1852. Since then, the successive recodifications of criminal law lacked any such requirement. In order for a defense to be judged as legitimate, it may not be "manifestly disproportionate to

3876-446: Is his safest refuge]. 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

3990-404: Is in peaceable possession of property; (b) they believe on reasonable grounds that another person (i) is about to enter, is entering or has entered the property without being entitled by law to do so, (ii) is about to take the property, is doing so or has just done so, or (iii) is about to damage or destroy the property, or make it inoperative, or is doing so; (c) the act that constitutes the offence

4104-439: Is in the process of sabotaging or attempting to sabotage a federally licensed nuclear power facility, or is attempting to remove, or has forcefully removed, a person against their will from any dwelling, residence, or occupied vehicle when the person has a legal right to be there, and provided that the person using the deadly physical force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act

4218-437: 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

4332-531: Is intended or likely to cause death or great bodily injury to another person if the person: (1) against whom the deadly force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if he removes or is attempting to remove another person against his will from the dwelling, residence, or occupied vehicle; and (2) who uses deadly force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act

4446-441: 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

4560-481: Is justified in the use of deadly force to prevent or terminate unlawful entry into or attack upon any dwelling, place of work or occupied vehicle if such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person or another. (c) Nothing in this section shall require a person to retreat if such person is using force to protect such person's dwelling, place of work or occupied vehicle. (4) A person who

4674-435: Is justified in using such force and is immune from civil or criminal liability for the use of such force, unless the person against whom force was used is a law enforcement officer or bail bondsman who was lawfully acting in the performance of their official duties and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that

Stand-your-ground law - Misplaced Pages Continue

4788-459: 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

4902-524: Is necessary to prevent death or great bodily injury to himself or another person or to prevent the commission of a violent crime as defined in Section 16-1-60. (D) A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or a violent crime as defined in Section 16-1-60. (E) A person who by force enters or attempts to enter

5016-542: 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

5130-402: 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 in self-defense which happens to occur inside one's home is distinct, as a matter of law , from castle doctrine, because

5244-550: Is not the initial aggressor and is not engaged in unlawful activity shall have no duty to retreat before using deadly force under subsection (1) (e) or (f) of this section if the person is in a place where the person has a right to be, and no finder of fact shall be permitted to consider the person's failure to retreat as evidence that the person's use of force was unnecessary, excessive or unreasonable. (5) (a) The presumptions contained in subsection (3) of this section shall apply in civil cases in which self-defense or defense of another

5358-415: Is occurring or has occurred. (B) The presumption provided in subsection (A) does not apply if the person: (1) against whom the deadly force is used has the right to be in or is a lawful resident of the dwelling, residence, or occupied vehicle including, but not limited to, an owner, lessee, or titleholder; or (2) sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under

5472-409: Is occurring...." B. A person has no duty to retreat before threatening or using physical force or deadly physical force pursuant to this section. 21-5222 Use of force in defense of a person. (a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such use of force is necessary to defend such person or

5586-453: Is specified that force used against an intruder is not to be regarded as reasonable if it is 'grossly disproportionate ' (as distinct from merely ' disproportionate ' force, which can still be reasonable). Like England and Wales, France has a stand-your-ground law rooted in the defense of using reasonable force in self-defense. Under article 122-5 of French Criminal Code, a person who, faced with an unjustified attack on himself or another, at

5700-411: Is supportive evidence that stand-your-ground laws are associated with increases in firearm homicides and moderate evidence that they increase the total number of homicides." In Canada, there is no duty to retreat under the law. Canada's laws regarding self-defense are similar in nature to those of England, as they centre around the acts committed, and whether or not those acts are considered reasonable in

5814-517: Is unique among Canadian jurisdictions in affording civil immunity to occupiers who employ force, including lethal force, in defense of homes and other premises. In 2019, the Alberta legislature passed the Trespass Statutes (Protecting Law-Abiding Property Owners) Amendment Act, 2019 , in response to rising rural crime, public concern with police inaction and several high-profile self-defense shootings

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5928-442: Is using force to protect such person or a third person. 21-5223. Use of force in defense of dwelling. (a) A person is justified in the use of force against another when and to the extent that it appears to such person and such person reasonably believes that such use of force is necessary to prevent or terminate such other's unlawful entry into or attack upon such person's dwelling, place of work or occupied vehicle. (b) A person

6042-494: The Brady Campaign to Prevent Gun Violence . In Florida, self-defense claims tripled in the years following enactment. Opponents argue that Florida's law makes it potentially more difficult to prosecute cases against individuals who commit a crime and claim self-defense. Before passage of the law, Miami police chief John F. Timoney called the law unnecessary and dangerous in that "[w]hether it's trick-or-treaters or kids playing in

6156-556: The High Court and the Court of Appeals are each bound by their own previous decisions, however, since 1966 the Supreme Court of the United Kingdom can deviate from its earlier decisions, although in practice it rarely does. A notable example of when the court has overturned its precedent is the case of R v Jogee , where the Supreme Court of the United Kingdom ruled that it and the other courts of England and Wales had misapplied

6270-459: 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

6384-569: 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

6498-485: The United Kingdom , United States , Canada , Australia , New Zealand , South Africa , Singapore , Ireland , India , Pakistan , Bangladeshi , Sri Lanka , Nepal , Bhutan , Israel and Hong Kong ), it is used for judicial decisions of selected appellate courts , courts of first instance , agency tribunals, and other bodies discharging adjudicatory functions. In the common law tradition, courts decide

6612-482: 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

6726-524: 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

6840-535: 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

6954-451: 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

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7068-513: 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: For a man's house is his castle, et domus sua cuique est tutissimum refugium [and each man's home

7182-421: The case is not appealed , the decision will stand. A lower court may not rule against a binding precedent, even if it feels that it is unjust; it may only express the hope that a higher court or the legislature will reform the rule in question. If the court believes that developments or trends in legal reasoning render the precedent unhelpful, and wishes to evade it and help the law evolve, it may either hold that

7296-421: 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

7410-443: 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

7524-613: 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, Indeed,

7638-451: The circumstances. Generally where retreat is available in the circumstances, the decision to stand your ground is more likely to be unreasonable. The sections of the Canadian criminal code that deal with self-defense or defense of property are sections 34 and 35, respectively. These sections were updated in 2012 to clarify the code, and to help legal professionals apply the law in accordance with

7752-526: The civil law tradition. In Sweden , for instance, case law arguably plays a more important role than in some of the Continental codified law systems. The two highest courts, the Supreme Court ( Högsta domstolen ) and the Supreme Administrative Court ( Högsta förvaltningsdomstolen ), have the right to set precedent which is in practice (however not formally) binding on all future application of

7866-459: The concept of self-defense and sow[ing] dangerous conflict in our neighborhoods." In 2014, Florida's legislature considered a bill that would allow people to show a gun or fire a warning shot during a confrontation without drawing a lengthy prison sentence. In 2017, there was a bill proposed in Florida's state legislature that would require the prosecution to prove that a defendant's use of self-defense

7980-496: 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

8094-655: The current case are called obiter dicta , which constitute persuasive authority but are not technically binding. By contrast, decisions in civil law jurisdictions are generally shorter, referring only to statutes . The reason for this difference is that these civil law jurisdictions adhere to a tradition that the reader should be able to deduce the logic from the decision and the statutes. Some pluralist systems, such as Scots law in Scotland and types of civil law jurisdictions in Quebec and Louisiana , do not precisely fit into

8208-644: The defended right and the chosen method of defense. In particular, in a case in which firearms are used, a warning shot must be given when defending a solely material asset. If the self-defense was excessive, its perpetrator is not to be punished if he or she exceeded on account of confusion, fear or terror. 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

8322-569: The defender was in the home or had no safe opportunity to flee, so care must be taken in its evaluation in regards to stand your ground law. Their report found no racial disparity in Florida cases in which defendants claiming self-defense under the law are prosecuted, with Caucasian subjects being charged and convicted at the same rate as African American subjects, and results of mixed-race cases were similar for both white victims of black attackers and black victims of white attackers. Victims of African American attackers overall were more successful at using

8436-471: The dual common-civil law system classifications. These types of systems may have been heavily influenced by the Anglo-American common law tradition; however, their substantive law is firmly rooted in the civil law tradition. Because of their position between the two main systems of law, these types of legal systems are sometimes referred to as mixed systems of law. Law professors traditionally have played

8550-432: The entry by break-in, violence or trickery in an inhabited place; 2° when defending himself against the authors of robbery or looting executed with violence. German law permits self-defense against an unlawful attack. If there is no other possibility for defense, it is generally allowed to use even deadly force without a duty to retreat. However, there must not be an extreme imbalance (" extremes Missverhältnis ") between

8664-534: The entry is made or attempted and the person reasonably believes that the force is necessary to prevent an assault upon the person or another then in the occupied structure; or (b) the person reasonably believes that the force is necessary to prevent the commission of a forcible felony in the occupied structure. 1. Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, property or person, against one who manifestly intends or endeavors, by violence or surprise, to commit

8778-456: The face of an attack (or threatened attack) by an assailant in assessing the elements of self-defense.” In British Columbia , the leading case law of which predates the 2012 ss. 34-35 amendments, courts will permit juries to consider available lines of retreat in deciding whether an accused had no other option than to defend himself. However, the option of retreat is not considered a categorical exclusion from self-defense. The province of Alberta

8892-405: The following factors: (a) the nature of the force or threat; (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (c) the person’s role in the incident; (d) whether any party to the incident used or threatened to use a weapon; (e) the size, age, gender and physical capabilities of the parties to the incident; (f)

9006-441: 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

9120-402: 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

9234-420: The judge believes the academic's restatement of the law is more compelling than can be found in case law. Thus common law systems are adopting one of the approaches long-held in civil law jurisdictions. Judges may refer to various types of persuasive authority to decide a case. Widely cited non-binding sources include legal encyclopedias such as Corpus Juris Secundum and Halsbury's Laws of England , or

9348-458: The law applicable to a case by interpreting statutes and applying precedents which record how and why prior cases have been decided. Unlike most civil law systems, common law systems follow the doctrine of stare decisis , by which most courts are bound by their own previous decisions in similar cases. According to stare decisis, all lower courts should make decisions consistent with the previous decisions of higher courts. For example, in England,

9462-431: The law for nearly 30 years. Generally speaking, higher courts do not have direct oversight over the lower courts of record , in that they cannot reach out on their initiative ( sua sponte ) at any time to overrule judgments of the lower courts. Normally, the burden rests with litigants to appeal rulings (including those in clear violation of established case law) to the higher courts. If a judge acts against precedent, and

9576-447: The law is applied in one district , province, division or appellate department . Usually, only an appeal accepted by the court of last resort will resolve such differences and, for many reasons, such appeals are often not granted. Any court may seek to distinguish the present case from that of a binding precedent, to reach a different conclusion. The validity of such a distinction may or may not be accepted on appeal of that judgment to

9690-473: The law than victims of Caucasian attackers, regardless of the victim's race claiming self-defense, but analysis showed that black attackers were also more likely to be armed and to be involved in committing a crime, such as burglary, when shot. 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

9804-584: The law to be "confusing". Those discussing issues with the group included Buddy Jacobs, a lawyer representing the Florida Prosecuting Attorneys Association. Jacobs recommended the law's repeal, stating that modifying the law would not fix its problems. In a July 16, 2013 speech in the wake of the jury verdict acquitting George Zimmerman of charges stemming from the shooting death of Trayvon Martin , Attorney General Eric Holder criticized stand-your-ground laws as "senselessly expand[ing]

9918-561: The law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. R.S., 1985, c. C-46, s. 35; 2012, c. 9, s. 2. A great deal of case law has emerged from different provincial superior courts regarding the interpretation of the elements of self-defense per ss. 34-35 of the Criminal Code . In Ontario , jurors are not permitted "...to consider whether an accused could have retreated from his or her own home in

10032-490: The lawful guardianship, of the person against whom the deadly force is used; or (3) who uses deadly force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or (4) against whom the deadly force is used is a law enforcement officer who enters or attempts to enter a dwelling, residence, or occupied vehicle in the performance of his official duties, and he identifies himself in accordance with applicable law or

10146-509: 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

10260-422: The manner of the attack". The common law jurisdiction of England and Wales has a stand-your-ground law rooted in the common law defense of using reasonable force in self-defense. In English common law there is no duty to retreat before a person may use reasonable force against an attacker, nor need a person wait to be attacked before using such force, but one who chooses not to retreat, when retreat would be

10374-402: 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

10488-405: The nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (g) the nature and proportionality of the person’s response to the use or threat of force; and (h) whether the act committed was in response to

10602-471: The occupier being convicted of an offence under the Criminal Code (Canada) that is prosecuted by indictment . (4) For the purposes of subsections (2) and (3), a trespasser is a criminal trespasser if the occupier has reasonable grounds to believe that the trespasser is committing or is about to commit an offence under the Criminal Code (Canada). (5) For the purposes of subsection (3), an occupier

10716-399: The offence believes on reasonable grounds that the other person is acting unlawfully. R.S., 1985, c. C-46, s. 34; 1992, c. 1, s. 60(F); 2012, c. 9, s. 2. 34 [omitted (1)] Factors (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to,

10830-419: The other person from that use or threat of force; and (c) the act committed is reasonable in the circumstances. [omitted (2)] No defence (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes

10944-456: The person using force knows or reasonably should have known that the person entering or attempting to enter is a law enforcement officer. (C) A person who is not engaged in an unlawful activity and who is attacked in another place where he has a right to be, including, but not limited to, his place of business, has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force, if he reasonably believes it

11058-470: The person was a law enforcement officer or bail bondsman in the lawful performance of their official duties. (2011‑268, s. 1.) (Note: In practice North Carolina automatically assumes the use of any level of force is justified unless there is clear, unambiguous proof that the force used was not justified.) (A) A person is presumed to have a reasonable fear of imminent peril of death or great bodily injury to himself or another person when using deadly force that

11172-422: The person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law. No defence (3) Subsection (1) does not apply if the other person is doing something that they are required or authorized by law to do in the administration or enforcement of

11286-421: The precedent is inconsistent with subsequent authority, or that it should be distinguished by some material difference between the facts of the cases; some jurisdictions allow for a judge to recommend that an appeal be carried out. If that judgment goes to appeal, the appellate court will have the opportunity to review both the precedent and the case under appeal, perhaps overruling the previous case law by setting

11400-478: The previous year. Especially influential was the case of Edouard Maurice, who wounded a trespasser and was served with a lawsuit after having criminal charges against him dropped. The new Act amended the Occupiers Liability Act, 2000 and added the following sections: (2) Where a trespasser is not a criminal trespasser, an occupier is not liable to the trespasser for damages for death of or injury to

11514-505: The principle by which judges are bound to such past decisions, drawing on established judicial authority to formulate their positions. These judicial interpretations are distinguished from statutory law , which are codes enacted by legislative bodies , and regulatory law , which are established by executive agencies based on statutes. In some jurisdictions, case law can be applied to ongoing adjudication ; for example, criminal proceedings or family law. In common law countries (including

11628-600: The published work of the Law Commission or the American Law Institute . Some bodies are given statutory powers to issue guidance with persuasive authority or similar statutory effect, such as the Highway Code . In federal or multi-jurisdictional law systems there may exist conflicts between the various lower appellate courts. Sometimes these differences may not be resolved, and it may be necessary to distinguish how

11742-448: 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. (a) A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he or she may use

11856-435: The same time performs an act required by the need for self-defense of himself or another, is not criminally responsible, unless there is a disproportion between the means of defense used and the seriousness of the attack. There is no duty to retreat before a person may use reasonable force against an attacker, nor need a person wait to be attacked before using such force, but one who chooses not to retreat, when retreat would be

11970-465: The sentiments of ancient Rome, as expressed in the works of Tully; quid enim sanctius, quid omni religione munitius, quam domus uniuscuiusque civium? For this reason no doors can in general be broken open to execute any civil process; though, in criminal causes, the public safety supersedes the private. Hence also in part arises the animadversion of the law upon eaves-droppers, nuisancers, and incendiaries: and to this principle it must be assigned, that

12084-411: 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

12198-542: The tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed. 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

12312-427: The trespasser unless the death or injury results from the occupier’s wilful or reckless conduct. (3) Where a trespasser is a criminal trespasser, no action lies against the occupier for damages for death of or injury to the trespasser unless the death or injury is caused by conduct of the occupier that   (a) is wilful and grossly disproportionate in the circumstances, and   (b) results in

12426-418: The turn of the twentieth century, it was very rare to see an academic writer quoted in a legal decision (except perhaps for the academic writings of prominent judges such as Coke and Blackstone ). Today academic writers are often cited in legal argument and decisions as persuasive authority ; often, they are cited when judges are attempting to implement reasoning that other courts have not yet adopted, or when

12540-541: 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: And the law of England has so particular and tender a regard to the immunity of a man's house, that it stiles it his castle, and will never suffer it to be violated with immunity: agreeing herein with

12654-409: The values Canadians hold to be acceptable. Defence — use of threat or force 34 (1) A person is not guilty of an offence if (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or

12768-416: The way that courts render decisions. Common law courts generally explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, and often interpret the wider legal principles. The necessary analysis (called ratio decidendi ), then constitutes a precedent binding on other courts; further analyses not strictly necessary to the determination of

12882-412: The yard of someone who doesn't want them there or some drunk guy stumbling into the wrong house, you're encouraging people to possibly use deadly physical force where it shouldn't be used." A counterargument is that implementing a duty-to-retreat places the safety of the criminal above a victim's own life. In Florida, a task force created by former Democratic state Sen. Chris Smith of Fort Lauderdale found

12996-561: Was not valid. In 2018, the shooting of Markeis McGlockton led some civil rights activists and politicians to call for abolition of the statute. In 2012, in response to the Trayvon Martin case , the Tampa Bay Times compiled a report on the application of stand your ground, and also created a database of cases where defendants sought to invoke the law. The database included many cases that were not legally stand your ground, such as when

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