02-26-08 wfp castle doctrine

8/8/2019 02-26-08 Wfp Castle Doctrine

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THE CASTLE DOCTRINE:

STAND YOUR GROUND AND SHOOT TO KILL

Houston Criminal Attorney John T. Floyd discusses the Castle Doctrine

and the Growing Support for the Use of Deadly Force in Self Defense

In October 2005 the Florida became the first state in the United States to

officially put a Castle Doctrine law on its books. Supporters hailed it as a

stand your ground law while opponents called it a shoot to kill license.

The Castle Doctrine is an American legal concept inherited from English

common law which extends to a homeowner (or ones place of residence)

the natural right to use deadly force to defend his home/residence in

response to a violent attack or an intrusion that may lead to a violent attack.

Some states have extended this right to any legally occupied place such asa vehicle, business, or place of work.

Twenty states, including Texas, have followed Floridas lead all of whom

were heavily lobbied by the National Rifle Association in enacting Castle

Doctrine laws. These states differ in varying ways on what degree of retreat

or non-deadly resistance is required before a person can use deadly force in a

legally justifiable manner. The following is a list of general conditions that

must be met before an individual can justifiably use deadly force under the

Castle Doctrine:

An intruder must be making (or have made) an attempt to forcibly

enter a premises uninvited.

The intruder must be acting illegally i.e., the Castle Doctrine does

not give the right to shoot officers of the law acting in the course of

their legal duties.

The occupant(s) of the home (any innocent person legally inside the

home) must reasonably believe that the intruder intends to inflict

serious bodily harm, or death, upon an occupant(s) of the home.

The occupant(s) of the home must reasonably believe that the intruderintends to commit a felony.

The occupant(s) of the home must not have provoked or instigated an

intrusion, or provoked or instigated an intruder to threaten or use

deadly force.


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The Florida Castle Doctrine law is considered one of the most sweeping in

the nation. It legalizes the use of deadly force by anyone 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. The law adds that a person 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. The statute immunizes the

person who uses deadly force under the law from civil or criminal liability.

The following are forcible felonies under the Florida statute:

Treason

Murder

Manslaughter

Sexual battery

Carjacking

Home-invasion robbery

Burglary

Arson

Kidnapping

Aggravated assault

Aggravated batter

Aggravated stalking

Aircraft piracy

Unlawful throwing, placing, or discharging of a destructive device or

bomb, and

Any other felony which involves the use or threat of physical force or

violence against any individual.

In June of 2006 the Orlando SENTINEL reported that during the first five

months of that year there were 12 shootings where self defense was claimed

in the Orlando area. The shooters in three of those cases were charged with

murder while five faced no charges. Disposition of the remaining four werestill under review as of June 2006.

In August 2006 Florida reporter Adam Liptak wrote about two cases in

which two shooters escaped prosecution under the Castle Doctrine after

shooting people. One was a Port Richey, Florida prostitute who killed a 72-

year-old client with his own gun rather than flee. The prostitute, Jacqueline


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Galas, said that Frank Labiento, a longtime client, had threatened to kill her

and then kill himself. A suicide note left by Labiento supported Galas

claim.

Before that [Castle Doctrine] law, said Michael Halkities, division director

of the state attorney generals office, before you could use deadly force,

you had to retreat. Under the new law, you dont have to do that.

The Castle Doctrine protected Galas, Halkitis said. It would have been a

more difficult situation with the old law [not to charge her], he added.

Much more difficult.

The second case Liptak wrote about involved a retired Virginia police

officer living in Clearwater, Florida named Kenneth Allen who shot his

neighbor following a shouting match over putting out garbage.

Had it been a year and half ago, said Jason Rosenbloom, the neighbor who

was shot, he [Allen] would have been arrested for attempted murder. I was

in T-shirt and shorts. I was no threat. I had no weapon.

Rosenbloom had knocked on Allens door to express his displeasure that

Allen had filed a complaint with the local authorities because Rosenbloom

had put eight bags of garbage when a local ordinance allowed only six bags.

The two got into an argument and, according to Rosenbloom, Allen closed

the door and then opened it again.

He [Allen] had a gun, Rosenbloom said. I turned around to put my hands

up. He didnt even say a word, and he fired once into my stomach. I bent

over, and he shot me in the chest.

Allen was not charged. It is cases like Allen and Galas that prompt most

prosecutors to be critical of the Castle Doctrine laws.

Theyre basically giving citizens more rights to use deadly force than we

give police officers, and with less review, said Paul Logli, former presidentof the National District Attorneys Association.

But others strenuously defend the Castle Doctrine.


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We want to make sure that in America the right to self-defense continues to

exist and that the American citizens home remains his castle, says NRA

CEO and Executive Vice President Wayne LaPierre.

FBI statistics indicate that the American public has also embraced Castle

Doctrine laws. There were 241 justifiable homicides by private citizens in

2006, an increase of 23% over 2005 although the 2006 figure is less than

the 247 justifiable homicides committed in 2003 before the NRA began its

Castle Doctrine campaign. The Florida Department of Law Enforcement

Uniform Crime Reports pointed out that there were 762,859 violent crimes

in the state compared to 638,256 for 2007 a decrease that occurred in spite

of an increase in the states population. Supporters attribute the Castle

Doctrine to the decrease in violent crime.

Last September the State of Texas established its own Castle Doctrine law[See In Defense of Thy Neighbor, an article posted on this website on

11/29/07). Just days after the law took effect a Dallas musician named Carter

Albrecht was shot and killed when he tried to kick in the door of his

girlfriends neighbor. The Dallas Police Department said no charges would

be filed against the neighbor for killing Albrecht who had been drinking and

arguing with his girlfriend.

Theirs is no excuse for blindly shooting a gun in anyones direction, said

Dallas concert promoter Mike Snider who was a friend of Albrechts.

[Carter probably] banged on the wrong door.

Just two months earlier in West Palm Beach, Florida, Norman Borden was

walking his dog when three men in a Jeep tried to run him down. He did not

hesitate. He pulled a gun and starting shooting: five bullets in the windshield

before moving to the side of the vehicle and pumping nine more rounds into

the side of the vehicle. Two of the three occupants were killed. Prosecutors

charged Borden with the two killings, but a jury acquitted him after hearing

testimony from the surviving Jeep occupant that the three men had intended

to rough up Borden with a baseball bat.

These two cases highlight the problems law enforcement, prosecutors,

judges, and defense attorneys are now confronted when dealing with Castle

Doctrine cases. When does deadly force become legally unacceptable?

While criminal defense attorneys can use Castle Doctrine laws to help their

clients, many are uncomfortable with the laws.


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As a matter of policy, I dont think most criminal defense lawyers think its

a very wise statute, said Robert Batey, a professor at the Stetson University

College of Law in St. Peterburg, Florida, speaking about the states Castle

Doctrine law. But Im sure theyre happy to have another argument to

make.

Prosecutors also have serious reservations about the doctrine. Floridas Leon

County State Attorney Willie Meggs, the 2005 president of the Florida

Prosecuting Attorneys Associated, called the states Castle Doctrine a shoot

your Avon lady law.

The Harris County, Texas case of Joe Horn exemplifies the legal perplexities

faced by prosecutors and criminal defense attorneys dealing with Castle

Doctrine shootings. Horns attorney faces the daunting task of trying to

apply the Castle Doctrine to a shooting in protection of a neighbors home.The defense may work because Horn was in front of his own residence when

he confronted the two burglars walking across his yard. In a previous

column, this website outlined the facts of the Horn case.

On November 14, 2007, at about 2:00 p.m. a Pasadena, Texas man named

Joe Horn was working at his computer inside his own residence in the 4900

block of Timberline when he heard the sound of breaking glass. He looked

out the window of his home and saw two Hispanic men, Miguel Antonio

DeJesus and Diego Ortiz, breaking into his neighbors house a neighbor

that Horn did not know very well. The 61-year-old Horn retrieved his 12-gauge shotgun from his pickup truck where he kept it for personal

protection. Horn then called a 911 operator to report the burglary in

progress. He explicitly told the operator that he was armed with a shotgun

and that he was going out to kill the two men. The 911 operator repeatedly

instructed Horn to remain inside his house until the police arrived. The

following are excerpts from that 911 call:

"I'm not going to let them go. I'm not going to let them get away with this,"

Horn told the operator. I'm gonna shoot. I'm gonna shoot."

"Stay inside the house and don't go out there," the operator calmly instructed

Horn. "I know what you're feeling, but it's not worth shooting someone over

this."


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"I have a right to protect myself, Horn replied. And a shotgun is a legal

weapon. It's not an illegal weapon."

"Mr. Horn, I want you to listen to me carefully, OK?, the 911 operator said.

I've got officers coming out there. I don't want you to go outside that house

and I don't want you to have that gun in your hand when the officers are

poking around out there."

"I ain't going to let them get away with this, Horn adamantly replied. They

stole something. They got a bag. I'm doing this."

"Don't go out the house," the operator warned. "Don't be shooting nobody."

"Property's not worth killing someone over. OK? Don't go out the house.

Don't be shooting nobody,"

I can't take a chance in getting killed over this. OK? Horn replied.

"Mr. Horn, do not go outside the house, the operator demanded. You're

going to get yourself shot if you go outside that house with a gun."

"You wanna make a bet," Horn responded. "I'm gonna kill them. They're

gonna get away."

"I don't want you going outside, Mr. Horn," the operator said, almost

futilely.

"Well, here it goes, buddy," Horn said. "You hear the shotgun clicking, and

I'm going."

The sound of the shotgun clicking was picked up on the 911 tape.

Move, youre dead, Horn warning the two men could be heard on the tape.

Three shotgun blasts were then picked up by the 911 recorder.

"Get the law over here quick. I had no choice," Horn frantically pleaded with

the 911 operator. "They came in the front yard with me. I had no choice."

Immediately after the shooting Bill Delmore, the legal services bureau chief

of the Harris County District Attorneys office, said it would be premature to

speculate about whether Horn should be indicted.


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One issue is going to be whether the so-called Castle Doctrine law applies

to a neighbors home, he said. Delmore added that Texas has other laws

that govern self-defense and the protection of property that might allow

Horn to escape prosecution, In the end, he said it would be up to a Harris

County grand jury to decide the issue. Three months after the shooting the

grand jury has yet to decide what to do in the Horn case.

In the wake of the Joe Horn shooting, two other high profile area Castle

Doctrine killings emerged. One was in Montgomery County where a

Gerald Lynn Southworth shot and killed Rodney Earl Shamlin in the front of

yard of Southworths home. Law enforcement officials concluded that

Southworth was justified in the shooting because Shamlin was trying to steal

something at the Southworth residence.

Two weeks later a Harris County resident named Demon Barone was

awakened by noises at his southwest Houston residence. Barone got up to

investigate the unusual noise and discovered a man named Steven Dunbar, a

career criminal, crawling through a shattered bedroom window. With his

wife and infant daughter hiding in the bathroom, Barone shot and killed the

intruder without hesitation. No charges were filed against Barone.

Southworth and Barone were protected by the central premise of the Castle

Doctrine.

In effect, said Anthony Sebak, a professor at the Brooklyn Law School,

the [Castle Doctrine] allows citizens to kill other citizens in defense of

property.

Wayne LaPierre put it this way: Castle Doctrine laws send a needed message

to law-abiding citizens.

If they [law-abiding citizens] make a decision to save lives in the split-

second they are being attacked, the law is on their side, he added. Goodpeople make good decisions. Thats why theyre good people. If youre

going to empower someone, empower the crime victim.

Sarah Brady, chairwoman of the Brady Campaign to Prevent Gun Violence,

does not agree. Its a license to kill, she said of the Castle Doctrine laws.


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Gary Kleck, a criminology professor at Florida State University, has a

different take on the Castle Doctrine issue. He pointed out that even before

Florida kicked off the Castle Doctrine debate, claims of self-defense were

commonly accepted.

In the South, he said, they more or less give the benefit of the doubt to

the alleged victim.

In 2006 the State of Mississippi enacted its Castle Doctrine law, and much

like Texas, law enforcement authorities immediately faced situations where

four Jackson homeowners fired shots at alleged burglars. Two of the alleged

burglars were killed. Only one of the homeowners faced criminal charges:

Fredrico Hamblin. He was charged only because he has a prior felony

conviction and could not be in possession of a firearm. Jackson police

spokesman Cmdr. Lee Vance said he did not know whether the homeownerswere aware of the new Castle Doctrine law before they pulled the trigger.

Im sort of curious about it myself, he said. There are a lot of people

who go through life and dont watch the news or pick up a newspaper.

On February 14, 2008 West Virginia became the latest state to move closer

to formally adopting a Castle Doctrine law which would grant homeowners

the right to use deadly force to protect hearth and home and provide them

with a full and complete defense in any civil action should they ever have

to use such force.

State Sen. Shirley Love, D-Fayette, supported by the NRA, has led a two-

year effort to get a Castle Doctrine law approved in West Virginia.

People have got to remember, this is not a license to kill, Love said after

the state Senate moved the measure out with a favorable unanimous

recommendation to the House of Delegates. This is something that gives

you protection in your home. Its a bill that a high majority of West

Virginians have wanted for so long. Its been the intruder that has beenprotected by the law instead of the home that hes intruding in.

Senate Judiciary Vice Chairman Mike Oliverio, D-Monongalia, agreed,

pointing out that West Virginia enjoys the lowest crime rate in the nation.

But I think West Virginians really support their Second Amendment


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rights, he said, and they believe its important that they be able to protect

themselves.

But Peter Hamm, a spokesman for the Brady Campaign to Prevent Gun

Violence, would not agree. His organization believes that the Castle

Doctrine promotes the psychology of gun violence and weakens police

powers.

Do we want to kill every 16-year-old kid we find stealing a car stereo?

Hamm asks.

Retreat or Stand your ground and shoot to kill the debate rages.

Whatever personal feelings a criminal defense attorney may have about gun

control or gun violence, he or she must fully utilize the growing number of

Castle Doctrine laws when available to fully protect the interests of theirclients.

02-26-08 wfp castle doctrine

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