"Informal" Castle Doctrine Poll

[DanClrk51]

The following was taken from: http://www.gunlaws.com/FloridaCastleDoctrine.htm

Florida "Castle Doctrine" Protects the Innocent

Puts Judiciary on the side of crime victims
News media gets it completely wrong


On March 23, 2005, The Florida Senate passed SB-436, the "Castle Doctrine" unanimously, by a vote of 39 YEAS to zero NAYS. They know something about this bill.

On April 5, The Florida House passed SB-436, "Castle Doctrine" by a vote of 94 YEAS to 20 NAYS, a margin of better than four to one.

On April 26, Governor Jeb Bush SIGNED SB-436, the "Castle Doctrine" into law (Chapter No. 2005-27) It takes effect on October 1, 2005.

The news media nationwide started in immediately with its ?Gunshine State,? blood in the streets, Dirty Harry, vigilante, irrational mass murder nonsense, mythologies, lies and blatant unethical behavior.

A great deal of erroneous information has been written, published and spoken about Florida's new "Castle Doctrine" law.

Claims that the new law will turn Florida into the Wild West are not only an insult to intelligent people but give a patently false portrait of what the bill actually does.

The Florida "Castle Doctrine" law basically does three things:

One: It establishes, in law, the presumption that a criminal who forcibly enters or intrudes into your home or occupied vehicle is there to cause death or great bodily harm, therefore a person may use any manner of force, including deadly force, against that person.

Two: It removes the "duty to retreat" if you are attacked in any place you have a right to be. You no longer have to turn your back on a criminal and try to run when attacked. Instead, you may stand your ground and fight back, meeting force with force, including deadly force, if you reasonably believe it is necessary to prevent death or great bodily harm to yourself or others. [This is an American right repeatedly recognized in Supreme Court gun cases.]

Three: It provides that persons using force authorized by law shall not be prosecuted for using such force.

It also prohibits criminals and their families from suing victims for injuring or killing the criminals who have attacked them.

In short, it gives rights back to law-abiding people and forces judges and prosecutors who are prone to coddling criminals to instead focus on protecting victims.

SO -- is this the impression you got from the news? Why not? Aren?t media people impartial purveyors of objective facts, with no bias or spin, faithfully and accurately reporting the news? Everyone who believes that?s an accurate description of the news media please raise your hand. See? No hands go up. Despite their protests otherwise, the news media has, in general, and especially with respect to gun issues, become an outrageous purveyor of agenda-driven nonsense on the dark side of the force.

[SeanN]

If someone forcefully enters your home you should be able to respond as necessary. I'm all for this.

[FarmerRick]

Florida law:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0776/SEC013.HTM


The 2009 Florida Statutes
   
Title XLVI
CRIMES
   
Chapter 776
JUSTIFIABLE USE OF FORCE
   
View Entire Chapter

776.013  Home protection; use of deadly force; presumption of fear of death or great bodily harm.--

(1)  A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a)  The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and

(b)  The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2)  The presumption set forth in subsection (1) does not apply if:

(a)  The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b)  The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c)  The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d)  The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3)  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, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

(4)  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 violence.

(5)  As used in this section, the term:

(a)  "Dwelling" means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

(b)  "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

(c)  "Vehicle" means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

History.--s. 1, ch. 2005-27.

[FarmerRick]

Current Nebraska Law:


Nebraska Revised Statute 28-1409
Revised Statutes ? Chapter 28 ? 28-1409
Use of force in self-protection.
Print Preview

28-1409 Use of force in self-protection. (1) Subject to the provisions of this section and of section 28-1414, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

(2) The use of such force is not justifiable under this section to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful.

(3) The use of such force is not justifiable under this section to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:

(a) The actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest;

(b) The actor has been unlawfully dispossessed of the property and is making a reentry or recapture justified by section 28-1411; or

(c) The actor believes that such force is necessary to protect himself against death or serious bodily harm.

(4) The use of deadly force shall not be justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat, nor is it justifiable if:

(a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or

(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:

(i) The actor shall not be obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and

(ii) A public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape shall not be obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.

(5) Except as required by subsections (3) and (4) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action.

(6) The justification afforded by this section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can do so, unless the person confined has been arrested on a charge of crime.
Source

   1. Laws 1972, LB 895, ? 4;
   2. R.R.S.1943, ? 28-836, (1975).


Annotations

1. Elements

2. Evidence

3. Jury instructions

4. Lawful force

5. Unlawful force

6. Miscellaneous

1. Elements

To successfully assert the claim of self-defense, a defendant must have a reasonable and good faith belief in the necessity of using force and the force used in defense must be immediately necessary and justified under the circumstances. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

A defendant asserting self-defense as justification for the use of force must have a reasonable and good faith belief in the necessity of such force. State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993).

In order for the self-defense justification to be applicable, (1) the belief that force is necessary must be reasonable and in good faith, (2) the force must be immediately necessary, and (3) the force used must be justified under the circumstances. State v. Graham, 234 Neb. 275, 450 N.W.2d 673 (1990).

The use of deadly force shall not be justifiable unless the actor believes such force is necessary to protect himself against death or serious bodily harm, nor is it justifiable if the actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter or the actor knows that he can not avoid the necessity of using such force with complete safety by retreating. State v. Menser, 222 Neb. 36, 382 N.W.2d 18 (1986).

Pursuant to subsection (4)(a) of this section, to deprive a defendant of the defense of self?defense, the defendant's provocation must be with the intent that the defendant will then cause death or serious bodily injury to the one that the defendant provoked, and it must all occur in the same encounter. State v. Butler, 10 Neb. App. 537, 634 N.W.2d 46 (2001).

2. Evidence

Under subsection (5) of this section, evidence of victims' violent or aggressive behavior which occurred 4 months after defendant shot them was not relevant to the circumstances as defendant believed them to be the night he shot them. State v. Allison, 238 Neb. 142, 469 N.W.2d 360 (1991).

3. Jury instructions

A trial court is required to give a self-defense instruction where there is any evidence in support of a legally cognizable theory of self-defense. State v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998).

Jury instruction requiring, as an element of self-defense, that "before using deadly force the defendant either tried to get away or did not try because he reasonably did not believe he could do so in complete safety," was not erroneous under this section. State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992).

A defendant is entitled to an instruction on self-defense if there is any evidence to support it; this is true even if the defendant does not testify. State v. Graham, 234 Neb. 275, 450 N.W.2d 673 (1990).

A defendant is not entitled to a self-defense jury instruction when he could have safely retreated. State v. Kuntzelman, 215 Neb. 115, 337 N.W.2d 414 (1983).

Defendant is entitled to have jury instructed on his theory of self-defense if there is any evidence to support it. State v. Duis, 207 Neb. 851, 301 N.W.2d 587 (1981).

4. Lawful force

This section provides no defense when a defendant uses force against another's lawful force. State v. Brown, 235 Neb. 374, 455 N.W.2d 547 (1990).

Use of force was prohibited where person being arrested knew that arrest was being made by a peace officer. State v. Moore, 226 Neb. 347, 411 N.W.2d 345 (1987).

The use of deadly force is justifiable when the actor believes that such force is necessary to protect himself or herself against death or serious bodily harm unless the actor knows that he or she can avoid the necessity of using such force with complete safety by retreating. Newton v. Huffman, 10 Neb. App. 390, 632 N.W.2d 344 (2001).

Pursuant to this section, if a defendant is justified in using force toward an individual, the defendant is justified in the force employed which mistakenly strikes the actual victim. State v. Owens, 8 Neb. App. 109, 589 N.W.2d 867 (1999).

5. Unlawful force

Record did not establish that victim used "unlawful force" against the defendant. State v. Sutton, 231 Neb. 30, 434 N.W.2d 689 (1989).

6. Miscellaneous

The excuse of self-defense is applied to the threatening behavior of "another person", not to a generalized group of actors. State v. Owens, 257 Neb. 832, 601 N.W.2d 231 (1999).

[SeanN]

Thanks for copying and pasting that for us, Rick.

I never understood why we're supposed to have to retreat and leave our home and all of our possessions behind if necessary. Why can't we legally defend ourselves if retreat is an option? It's not like we asked them to come onto our property and threaten us, our belongings, or our families. That's a load of BS imo.

[FarmerRick]

I actually like Kansas' law a bit better, thing seem to be a bit more well defined to me.


http://www.kslegislature.org/legsrv-statutes/index.do

Kansas ? 21-3211: Use of force in defense of a person; no duty to retreat.

(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 force is necessary to defend such person or 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 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 is using force to protect such person or a third person.

Kansas ? 21-3212: Use of force in defense of dwelling; no duty to retreat.

(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 force is necessary to prevent or terminate such other's unlawful entry into or attack upon such person's dwelling or occupied vehicle.
(b) A person is justified in the use of deadly force to prevent or terminate unlawful entry into or attack upon any dwelling or occupied vehicle if such person reasonably believes 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 or occupied vehicle.

Kansas ?21-3213: Use of force in defense of property other than a dwelling.
A person who is lawfully in possession of property other than a dwelling is justified in the threat or use of force against another for the purpose of preventing or terminating an unlawful interference with such property. Only such degree of force or threat thereof as a reasonable man would deem necessary to prevent or terminate the interference may intentionally be used.
 

21-3214.   Use of force by an aggressor. The justification described in sections 21-3211, 21-3212, and 21-3213, is not available to a person who:

(1)   Is attempting to commit, committing, or escaping from the commission of a forcible felony; or

(2)   Initially provokes the use of force against himself or another, with intent to use such force as an excuse to inflict bodily harm upon the assailant; or

(3)   Otherwise initially provokes the use of force against himself or another, unless:

      (a)   He has reasonable ground to believe that he is in imminent danger of death or great bodily harm, and he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

      (b)   In good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

      History:   L. 1969, ch. 180, ? 21-3214; July 1, 1970.

AND

Article 32.--PRINCIPLES OF CRIMINAL LIABILITY 21-3219. Use of force; immunity from prosecution or liability; investigation.
(a) A person who uses force which, subject to the provisions of K.S.A. 21-3214, and amendments thereto, is justified pursuant to K.S.A. 21-3211, 21-3212 or 21-3213, and amendments thereto, is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer who was acting in the performance of such officer's official duties and the officer identified the officer's self in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, "criminal prosecution" includes arrest, detention in custody and charging or prosecution of the defendant.
(b) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (a), but the agency shall not arrest the person for using force unless it determines that there is probable cause for the arrest.
(c) A county or district attorney or other prosecutor may commence a criminal prosecution upon a determination of probable cause.
History: L. 2006, ch. 194, ? 2; L. 2007, ch. 169, ? 1; May 17.

[FarmerRick]

Thanks for copying and pasting that for us, Rick.

I never understood why we're supposed to have to retreat and leave our home and all of our possessions behind if necessary. Why can't we legally defend ourselves if retreat is an option? It's not like we asked them to come onto our property and threaten us, our belongings, or our families. That's a load of BS imo.

Only 2 places in NE where it is not required for a person to retreat, sort of:

(i) The actor shall not be obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and

Then, below in the (3) jury instructions:

A defendant is not entitled to a self-defense jury instruction when he could have safely retreated. State v. Kuntzelman, 215 Neb. 115, 337 N.W.2d 414 (1983).

These 2 parts seem to contradict each other.

[SeanN]

Thanks for copying and pasting that for us, Rick.

I never understood why we're supposed to have to retreat and leave our home and all of our possessions behind if necessary. Why can't we legally defend ourselves if retreat is an option? It's not like we asked them to come onto our property and threaten us, our belongings, or our families. That's a load of BS imo.

Only 2 places in NE where it is not required for a person to retreat, sort of:

(i) The actor shall not be obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and

Then, below in the (3) jury instructions:

A defendant is not entitled to a self-defense jury instruction when he could have safely retreated. State v. Kuntzelman, 215 Neb. 115, 337 N.W.2d 414 (1983).

These 2 parts seem to contradict each other.

They do indeed. That needs to be looked at. How can we follow the law if it's contradictory?

[FarmerRick]

There is a pretty good overview and comparison of various Castle Doctrine laws at http://en.wikipedia.org/wiki/Castle_Doctrine_in_the_United_States

About 2/3 of the way down the page is the section of states with "no duty to retreat" with links to each states' laws.

I like Oklahoma's law quite a bit too. http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=69782

When I was talking with Sen. Christensen last weekend at the picnic, he asked that I send his office some examples of what state statutes we thought would be good models for a Nebraska Castle Doctrine law.  I sent the above link to wikipedia along with the text of the laws from Kansas, Florida, Oklahoma, Louisiana, and Alabama.  I think any of those would be great examples to use as a base for a new Nebraska law.

[DanClrk51]

Excellent FarmerRick! So you met Senator Christensen at the open carry picnic in Columbus? Did the media report on the picnic at all? Anyways good stuff sending Christensen's office with Castle Doctrine statutes.

One thing I noticed was that Kansas and Florida unlike our current Nebraska law-as bad as it is- did not mention "kidnapping or forced sexual intercourse (rape)" as justifiable reasons to use deadly force. Am I wrong about this? I would hope that those states do respect those conditions as well. Here is the part where it talks about it in Nebraska Law:

(4) The use of deadly force shall not be justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat

If we do introduce a "Castle Doctrine Bill" this session I would like to see those four conditions fully recognized.

[Roper]

great information!  I also like the Kansas law a little better, but I'll take either one!

[SBarry]

Well Rick, put together a list of everything we want to see in this bill and send it to Christensen. Make sure it includes:

1. anywhere you have the right to be (house, car, city sidewalk, tent in middle of woods, etc.)
2. Protect the third person also (Neighbor, innocent victim on the street)
3. Rape, kidnapping, property protection.

We have waited around just like Nebraska has always done, now it is time to get it right the first time, make ours the model for every other state. Christensen spoke about leading the charge, introducing bills that get after what we want. We have the man in there to do it, send him what we want, Let's lead the charge. 

[huskergun]

This is why I like this organization. Rick you are an asset.
Keep up the good work.

[Roper]

The formation of the Castle Law is, in my humble opinion, our next calling.  If we can help craft the bill, gain grass roots support and get something signed into - it will enhance our organization's credibility. 

We should start setting the stage with the key points that we would want to see in the legislation and forward them to Senator Christensen.  Perhaps he could let us know how we can further assist in the process.  Finally - after LilRat signs up our 2000th member, perhaps our illustrious President should issue a press release about the milestone along with our purpose in life.  Let's start building some momentum with the recruiting success that several members have created.   

[SBarry]

That should be this weekend, with gun shows at Brule, Columbus and Norfolk, we should get to 2000 easy. By my calculations, we are at least 1,843 members strong. Forum membership has jumped up over 40 members in the last few weeks, and word is starting to spread.

I will be at Brule, We Need a volunteer at Columbus, and I hope we have a member to do Norfolk. I will post in the Events section further. I have a good feeling the west will be a barn burner for new members in the next three weeks, with Alliance the week after Brule, then North Platte the week after Alliance.  

Come on people, be part of the milestone weekend, make time in your schedule and do it.

[FarmerRick]

I can't make it to Columbus, not having any luck getting anyone to volunteer to man tables at any gun shows so far(besides Scott, of course).

http://www.nebraskafirepower.com/forum/index.php?topic=1107.0

http://www.nebraskafirepower.com/forum/index.php?topic=1095.0

http://www.nebraskafirepower.com/forum/index.php?topic=1102.0


    

[Rich B]

Thanks for copying and pasting that for us, Rick.

I never understood why we're supposed to have to retreat and leave our home and all of our possessions behind if necessary. Why can't we legally defend ourselves if retreat is an option? It's not like we asked them to come onto our property and threaten us, our belongings, or our families. That's a load of BS imo.

Only 2 places in NE where it is not required for a person to retreat, sort of:

(i) The actor shall not be obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and

Then, below in the (3) jury instructions:

A defendant is not entitled to a self-defense jury instruction when he could have safely retreated. State v. Kuntzelman, 215 Neb. 115, 337 N.W.2d 414 (1983).

These 2 parts seem to contradict each other.

They do indeed. That needs to be looked at. How can we follow the law if it's contradictory?

IANAL, but consider the following scenario:

You are at your back door and you hear Something Bad happening towards the front of your house.  IMO, the law says you need to exit the back door and seek help elsewhere.  You are not supposed to walk to the closest AR-15, charge it, and engage whatever kicked in your door.


I'm not saying I like or agree with the above scenario.  In fact, I would not convict someone who did that.  But then, I favor Texas-style laws that allow you to use deadly force after dark to protect personal property (as opposed to just real property). 

[Dan W]

No, the law says you must KNOW that you can exit the back door without harm to your self or your family.

"The actor knows that he can avoid the necessity of using such force with complete safety by retreating"

If you don't know for sure that there is not another perp outside the back door, you can't safely retreat.

[AFVet1982]

I voted for "Other," meaning another state's (specifically Texas) Castle Doctrine law.  Hopefully, the pendulum is swinging back in the direction of laws protecting the law-abiding and imperiling the law-breakers instead of what we have now. 

[GunFun]

Thanks for copying and pasting that for us, Rick.

I never understood why we're supposed to have to retreat and leave our home and all of our possessions behind if necessary. Why can't we legally defend ourselves if retreat is an option? It's not like we asked them to come onto our property and threaten us, our belongings, or our families. That's a load of BS imo.

I agree completely. If someone comes into your house with the intent of committing a felony, I believe deadly force should be authorized, and the law regarding that should be advertised loudly to the criminal element.

That might be a deterrent to all of the recent home invasions happening around the area.