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Thread: The Castle Doctrine - does your state have a fake "castle doctrine" statute?

  1. #1
    Accomplished Advocate user's Avatar
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    The Castle Doctrine - does your state have a fake "castle doctrine" statute?

    Let me observe, first, that I am an attorney only in Virginia; any opinion I have about other states' laws is mere personal opinion.

    The "castle doctrine" has become a big issue in Virginia this year, and I've had an opportunity to weigh-in on the subject. What I've discovered is that well-meaning legislators, not only here, but throughout the U.S. have proposed bills to enact what they had been told are "castle doctrine" bills. I looked at the statutes of all the states that had enacted such legislation in formulating my response to what's going on in Virginia.

    Without exception, each and every one of these so-called "castle doctrine" statutes fails to enact the common law castle doctrine - even the best of them, e.g., Texas and Utah, have deficiencies. The castle doctrine has been incorporated into our law in a couple of different ways. Because the original 1604 case enunciating that principle was about what was in effect, the execution of a "no-knock warrant" by the local sheriff, it forms the basis of the "knock and announce" rule that applies to entry into a home by law enforcement. It is also implemented in the affirmative defense called, "defense of habitation", which applies in both civil and criminal cases.

    I've come to the conclusion that Virginia common law comprises the best set of personal defense laws in the country, and I've written up a proposal for a codification of personal defense law as it exists today. The main problem we've had is that people have had the idea that because there is no statute on the subject, then there is no law on the subject. States vary widely in the extent to which they incorporate English common law, but Virginia adopts English law back to 1066, "lock, stock, and barrel", unless it is inconsistent with the laws of the Commonwealth otherwise expressed in the Constitution or Code. So the law of Semayne's Case, the 1604 Court of King's Bench opinion is good law in Virginia right now, but probably not in Louisianna or some of the states that were formerly Spanish possessions. But it is clear that the castle doctrine is an English common law concept, and what I've found is that the states that have enacted "castle doctrine" statutes have not incorporated that doctrine, and have as a result, actually lost rights they would have otherwise had, by the enactment of those statutes.

    Here's my proposal for comprehensive codification of Virginia's personal defense law with a fairly extensive commentary with case excerpts from Virginia courts explaining the basis of it. I suggest that if your state's statute does not incorporate most of what I've put into this thing, particularly as to the defense of habitation rule, you need to modify your state's statute. And states that lack the English common law foundation for their legal systems should enact this proposal entirely. Whether or not it incorporates the pre-existing law of your state, I think it's what the law ought to be throughout the U.S.

    I suppose I sound presumptuous in saying so, but let me point out that I didn't make this stuff up, all I did was to compile a thousand years of legal history into a seven-page proposal. The contents are the result of centuries of painful experience in actual litigation on a case-by-case basis and opinions by authoritative courts. See what you think; please download this file and read it locally - if you open it in your browser it may look fuzzy:

    Personal Defense law proposal with commentary
    Last edited by user; 02-23-2012 at 08:16 AM.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

  2. #2
    Regular Member ncwabbit's Avatar
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    Thanks for the excellent research done and articulating it well...

    wabbit

    ps: glad you clarified the fuzzy wasn't my eyes...
    Last edited by ncwabbit; 02-25-2012 at 02:04 PM.

  3. #3
    Herr Heckler Koch
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    Thank you very much for the obvious scholarship!

    That's copied and I will put it on my KINDLE for study while traveling. And I will cite this thread in the Wisconsin sub-forum.

  4. #4
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    Quote Originally Posted by user View Post
    States vary widely in the extent to which they incorporate English common law, but Virginia adopts English law back to 1066, "lock, stock, and barrel", unless it is inconsistent with the laws of the Commonwealth otherwise expressed in the Constitution or Code. So the law of Semayne's Case, the 1604 Court of King's Bench opinion is good law in Virginia right now, but probably not in Louisianna or some of the states that were formerly Spanish possessions. But it is clear that the castle doctrine is an English common law concept, and what I've found is that the states that have enacted "castle doctrine" statutes have not incorporated that doctrine, and have as a result, actually lost rights they would have otherwise had, by the enactment of those statutes.
    user, do you know if there is a reasonable method to determine what basis of law is for a given state? You reference the basis for VA law, how would I find basis (or adopted law such as the VA English Common Law) for statute in Nevada, or Montana for instance?
    "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." Benjamin Franklin

  5. #5
    Herr Heckler Koch
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    Quote Originally Posted by wrightme View Post
    user, do you know if there is a reasonable method to determine what basis of law is for a given state? You reference the basis for VA law, how would I find basis (or adopted law such as the VA English Common Law) for statute in Nevada, or Montana for instance?
    The Wikipedia is a good place for lay folk to start and in this instance too. It has a number of on point citations and concludes that Louisiana specifically hews to the Napoleonic Code. You can start there.

    ETA;going on a bit due to my large lunchtime gin: I honor a co-worker, a senior, that had a placard above his desk that advised, "Ask your own questions. Find your own answers."

    As I recall from thirty years ago, he was assigned to the crew that died at the SL-1 event and would have died too but for calling in sick. In our work we were taught to never ask a question to which we didn't know enough of the answer to detect a lie.
    Last edited by Herr Heckler Koch; 02-25-2012 at 04:28 PM.

  6. #6
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    Most states have constitutions or codes that specifically identify pre-existing law to be incorporated by reference. Those that have none (I think that basically covers states governed under the "Field Codes" authored in the Nineteenth Century) are self-contained civil law states. I would think that the states that were carved out of the original English colonies would be common law states, but I'm not sure about that (One of the main purposes of David Dudley Field II's code was to cut off the effect of prior law; it's been enacted in some form by about half the states, if I recall correctly).

    For example, in Virginia, there's a "general stuff" sort of title, that includes two statutes that say the common law of England is the law of Virginia, and that all the statutes, edicts, decrees, etc. by the kings and parliament of England are in effect in Virginia. I'm thinking there's such a reference, if one exists, in either the constitution or code of every state. If you can't find it, then there may be a statute that says that "stare decisis" applies (decisions of appellate courts have the force of law and govern future interpretations), or some other rule that gives courts the authority to determine law. If there is no such rule, and given the separation of powers doctrine, the decisions of courts from one day to the next can be different, and there is no basis for the application of prior law. In such states, the constitution and code is all there is. I wouldn't live in such a state, myself. As Gran'ma Joad said in The Grapes of Wrath, "How will we know it's us, without our stuff?" Legal history provides an anchor and compass, and anyone without a solid grounding in established legal history is just bouncing around on the waves of judicial whimsy, in my presumptuous opinion.

    If your state's law of personal defense doesn't include defenses against both criminal and civil charges, including those arising out of defense against the unlawful acts of law enforcement personnel, then you've got problems if you believe you have to defend yourself in good faith. (The real problem for cops, in my experience, is that they usually have no legitimate concern for "officer safety", but that they lack the training to know where the line is that they, themselves, cannot cross. And that's because we, the American public, are not willing to pay for the training. That is a positive evil, in my opinion. If we can't afford to train our cops properly, we can't afford to fix potholes or even to provide free health care. Law enforcement is a legitimate state function, one of the primary reasons we have states at all - other stuff we spend lots of money on is just "nice to have".)
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

  7. #7
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    Finally found something for Nevada:

    ARTICLE. 17. - Schedule
    Sec: 2.  Territorial laws to remain in force.  All laws of the Territory of Nevada in force at the time of the admission of this State, not repugnant to this Constitution, shall remain in force until they expire by their own limitations or be altered or repealed by the Legislature.
    http://www.leg.state.nv.us/Const/NVConst.html#Art17Sec2
    Last edited by wrightme; 02-25-2012 at 07:24 PM.
    "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." Benjamin Franklin

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