Paul Soglin: Waxing America

The Castle Doctrine and The Coming Gunfight

The tragedy in Florida where young Trayvon Martin was murdered was inevitable, This post is from six years ago.

The twisting and manipulation of the Castle Doctrine is quickly moving the United States in a dangerous direction. The radical right now distorts a principle which dates back to the English Common Law, with roots in Roman society.

The concept is simple. Confronted with violence, once is always expected to retreat. Retreat is the rule, not the exception. Then an exception was carved out allowing the use of deadly force if reasonably used in self-defense. But always, there was first an obligation to retreat.

A thousand years ago our ancestors realized that if civilization was to move forward, the obligation was on everyone to retreat.

From this another exception was carved.  Once within his home the Englishman, faced with nowhere else to flee, obligated to protect his family and property, was entitled to use deadly force, but only as necessary to stop the intrusion. During the reign of King Henry VIII:

Duty to Retreat

Historically, English common law justified deadly force only in circumstances where one was executing the law -- effecting a legal arrest or preventing violent felonies ( see Perkins, Self-Defense Re-Examined, 1 UCLA L Rev 133 [1953]). When deadly force was reasonably used in self-defense it only excused -- but did not justify -- the homicide ( see Wharton, Homicide § 3, at 211 [1855]). The difference was more than theoretical, as the excused killer was subject to property forfeiture and, at times, even a penal sentence ( see Dressler, Understanding Criminal Law, [3d ed], § 17.01, p 205). However, with the enactment of 24 Henry VIII, ch 5 (1532), the justification defense was enlarged to include deadly force reasonably used in self-defense. This broader reading of the justified use of deadly force was further refined by cases involving attacks in the dwelling of the defender. Such a defender -- even if the original aggressor -- did not have a duty to retreat when inside the home, or "castell" (Lambard, Eirenarcha, or Offices of the Justice of the Peace, 250 [1599]).

Our contemporary castle doctrine grew out of a turbulent era when retreat from one's home necessarily entailed increased peril and strife ( see Thompson, Homicide in Self- Defense, 14 Am L Rev 548, 554 [1888]). The rationale that evolved -- now widely accepted -- is that one should not be driven from the inviolate place of refuge that is the home. "It is not now, and has never been the law that a man assailed in his own dwelling, is bound to retreat. If assailed there, he may stand his ground, and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home" ( see People v Tomlins, 213 NY 240, 243 [1914] [Cardozo, J.]).

The home exception to the duty to retreat reflects two interrelated concepts -- defense of one's home, and defense of one's person and family. "The house has a peculiar immunity in that it is sacred for the protection of a person's family," and "[m]andating a duty to retreat for defense of dwelling claims will force people to leave their homes by the back door while their family members are exposed to danger and their houses are burgled" ( State v Carothers, 594 NW2d 897, 900-901 [1999] [Minn] [internal quotations and citations ommitted]). Yet somewhat at odds with this privileged status accorded the home is the state's general interest in protecting life. "The duty to retreat reflects the idea that a killing is justified only as a last resort, an act impermissible as long as other reasonable avenues remain open" ( People v Jones, 3 NY3d 491, 494 [2004]). Indeed, requiring a defender to retreat before using deadly force may in fact be "the more civilized view" (LaFave, Substantive Criminal Law § 10.4 [e], at 155 [2d Ed]). Inevitably, then, a balance must be struck between protecting life by requiring retreat and protecting the sanctity of the home by not requiring retreat.

.....The Legislature also incorporated the castle doctrine -- balancing the competing interests of protecting the home and protecting life -- directing that the duty to retreat does not apply when the defender "is in his dwelling and not the initial aggressor"... If the attack occurs in the dwelling, a defender need not retreat but may use reasonable force to repel it. (emphasis added)

Now the radical new Republican right wants to take the exception and make it the rule nationally, having succeeded in Florida.

Here is what the NRA POLITICAL REPORTsays:

The right to defend yourself against violent, criminal attack is a fundamental human right. NRA-ILA is in state capitals, fighting for laws like the Castle Doctrine, which guarantees your right to defend yourself against criminals anywhere you have a right to be. We're also fighting for Workers Protection laws, to prevent employers from discriminating against employees who choose to keep firearms in their locked vehicles while working.

The intent is straightforward though not honest.  First, the Castle Doctrine now becomes the rule, not the exception.  At the grocery, the ball game and the tavern, there is no longer a requirement to retreat.

laws like the Castle Doctrine, which guarantees your right to defend yourself against criminals anywhere you have a right to be

Bu the bigger lie is here:

guarantees your right to defend yourself against criminals anywhere you have a right to be.

A dispute with the next guy over the parking space? Bam! Bumping into the other shopper's cart? Boom! Didn't like the way he was looking at you? Blam!

All one of the parties has to do is perceive that the other is not backing down; from there we have the physical confrontation with no obligation to retreat, and permission to use deadly force if you believe your own life is in danger.

Employers in Florida and other states want firearms out of the parking lots and workplaces. The NRA is claiming that their Property Rights allow them to take their gun (property) wherever they go. Whatever happened to the the person who owns the property, the real property?

Edit note: this was originally posted Feburary 27, 2006.

Turn Off Those Lights!

I ask you to join me in recognizing Earth Hour later this month.

 On Saturday, March 31st at 8:30 p.m., hundreds of millions of people around the globe will turn off their non-essential lights for one hour during Earth Hour – an innovative campaign that raises awareness on sustainability and the environmental challenges we all face.  Earth Hour is about raising consciousness, capturing people’s imaginations and empowering them to make a difference.  The City of Sydney was the first to switch off in 2007.  In 2008, Earth Hour went global and 50 million people around the world took part.  Last year, Earth Hour reached 1.8 billion people from over 5,000 cities and towns in 135 countries and territories across every continent.  With businesses, governments and communities working together, this single act is uniting people across the world by provoking discussion and a commitment to long-term actions that will benefit the planet.  Let us include the City of Madison in that effort in 2012.

While it is understandable that the City will not be able to turn off streetlights on State Street on a Saturday evening, most of the outside lighting at Monona Terrace, the first LEED EB silver-certified  Convention Center in the country, will again be off for the hour.  I urge other residents to take the challenge as well.  As you do, please consider the extra effort we can all make to curb carbon pollution and lower our dependence on fossil fuels.

 

 

 

Thanks for Speaking Up!

 

There have been some troubling reports of abuse in Madison in the last couple of months. They have led to a number of questions regarding what could and should we have done differently.

If there is any positive outcome to these tragedies, it is that neighbors are reaching out to each other and perhaps working harder to be good neighbors. It is my belief that this is one of the most important things we can do as citizens and human beings; look out for each other. If you think there is something suspicious going on nearby, report it. If you do not think you are getting a response, report it again.

I want to share with you an incident in which someone, in fact a City employee, did stand up and speak out when she saw a wrong. She is a Madison Metro bus driver, and last November, she stepped out of her comfort zone and reported child abuse.

The incident happened as the bus passed a mother and her 3-year-old child on a North Pinckney Street sidewalk. The driver, who contacted police, reported that the woman reached into a stroller and struck the young child multiple times while yelling at her to shut up and go to sleep.

The woman was tentatively charged with physical abuse of a child.

I am pleased to say that the driver’s efforts have not gone unnoticed. She is being publically recognized this spring by the South Central Branch of the Wisconsin Chapter of the National Association of Social Workers. Members of the local chapter are honoring the driver for taking responsibility and taking the time to go out of her way to report the abuse rather than look the other way and go about her daily routine.

Of course our bus driver did not know her actions would win her recognition or be reported in the newspaper. She reported the abuse because it was the right thing to do. I know many people have done the same thing without recognition. I applaud anyone who has taken those actions and I applaud our bus driver. It’s people like her who make Madison a wonderful city in which to live.

Enjoy the spring weather!