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February 27, 2008

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 one’s 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 as a vehicle, business, or place of work.

Twenty states, including Texas, have followed Florida’s 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 intruder intends 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.

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 were still 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 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 general’s office, “before you could use deadly force, you had to retreat. Under the new law, you don’t 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 Allen’s 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 didn’t 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.

“They’re basically giving citizens more rights to use deadly force than we give police officers, and with less review,” said Paul Logli, former president of the National District Attorneys Association.

But others strenuously defend the Castle Doctrine.
“We want to make sure that in America the right to self-defense continues to exist and that the American citizen’s 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 state’s 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 girlfriend’s 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 anyone’s direction,” said Dallas concert promoter Mike Snider who was a friend of Albrecht’s. “[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.

“As a matter of policy, I don’t think most criminal defense lawyers think it’s a very wise statute,” said Robert Batey, a professor at the Stetson University College of Law in St. Peterburg, Florida, speaking about the state’s Castle Doctrine law. “But I’m sure they’re happy to have another argument to make.”

Prosecutors also have serious reservations about the doctrine. Florida’s Leon County State Attorney Willie Meggs, the 2005 president of the Florida Prosecuting Attorneys Associated, called the state’s 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. Horn’s attorney faces the daunting task of trying to apply the Castle Doctrine to a shooting in protection of a neighbor’s 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 neighbor’s 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."

"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, you’re 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 Attorney’s office, said it would be premature to speculate about whether Horn should be indicted.

“One issue is going to be whether the so-called Castle Doctrine law applies to a neighbor’s 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 Southworth’s 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. “Good people make good decisions. That’s why they’re good people. If you’re going to empower someone, empower the crime victim.”

Sarah Brady, chairwoman of the Brady Campaign to Prevent Gun Violence, does not agree. “It’s a license to kill,” she said of the Castle Doctrine laws.

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 homeowners were aware of the new Castle Doctrine law before they pulled the trigger.

“I’m sort of curious about it myself,” he said. ‘”There are a lot of people who go through life and don’t 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. It’s a bill that a high majority of West Virginians have wanted for so long. It’s been the intruder that has been protected by the law instead of the home that he’s 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 rights,” he said, “and they believe it’s 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 their clients.

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Pictured from left to right: Billy Sinclair, Senior Paralegal;John T. Floyd; Chris Choate, Attorney; Chris Carlson, Attorney, John T. Floyd Law Firm, Criminal Defense Attorney Houston, TexasHouston Criminal Lawyer, John T. Floyd Law Firm, Criminal Defense Attorney Houston, TexasPictured from left to right: John T. Floyd;Billy Sinclair, Senior Paralegal; Chris Carlson, Attorney, John T. Floyd Law Firm, Criminal Defense Attorney Houston, Texas