A History of the Castle Doctrine

Although we live in an armed society, self-defense law and practice are often misconstrued. Self-defense case law is but one sliver of study that a general practitioner in the legal field will study. Outside the purview of a small number of legal experts, law and reality are poorly understood and lead to a lack of context that can be found wanting in the courtroom and the newsroom. The Castle Doctrine and “stand your ground” laws are the most talked about. Ergo, they are probably the most misunderstood. Follow along as we dive into the history of the Castle Doctrine and its expansion from inside the home to the public sphere.


The Origins of the Castle Doctrine

The Castle Doctrine could be traced back to ancient Greece, where the man of the home was free from society and able to exercise power in the home, including the arbitration of life and death of his spouse and children. It likely had early roots in Norman and English law before the Castle Doctrine was first loosely described when Parliament, eager to strike against the power of the King, passed the Forcible Entry Act in 1381. The Act provides that no man can force his way into a dwelling, but may enter in a “peaceful and easy manner.”

The Castle Doctrine’s meaning was made clearer for legal historians in Sir Edward Coke’s 1628 work, The Institutes of the Laws of England, where he states, “for a man’s house is his castle and each man’s home is his safest refuge.” This came on the heels of the 1604 Semayne’s Case, in which the Sheriff of London threatened to break into the home of George Berisford after being refused entry. The homeowner was in debt to one Peter Semayne, who opted to take Berisford to civil court instead.  The case would begin a tradition of restricting the scope of law enforcement to strictly criminal matters as it related to entry into the home and establishment for knock-and-announce procedures. Keeping with the “peaceful and easy manner” of the Forcible Entry Act, a sheriff might enter a dwelling if the door is open. Until this point, the origins of the Castle Doctrine were most commonly invoked in cases of police abuse, not in self-defense cases. But the court that weighed in on Semayne’s Case did conclude that the defense of one’s home is not a felony.

In the New United States

The English colonists that transplanted to North America brought this private view of property with them. Three of the first ten amendments to the US Constitution, the Third, Fourth, and Fifth, are tied to the privacy of the home that cannot be violated without the due process of law. The original intent of these amendments, like the Castle Doctrine, was to ward off state intrusions and imply a defense from the homeowner for the law to be exercised.

The individual inside the home was autonomous and it was judged that that autonomy extended outside the home as well, as he or she would be free from wanton arrest. The defense of one’s home was carried over to the defense of oneself outside, where the individual had the legal right to be. Tied to this idea is the concept of “stand your ground laws” in which deadly force can be used in a defensive situation without the need to first seek a retreat. This concept was argued early on in Ervin vs. State in 1876 that a “true man, one without fault, would not retreat.” In a word, to fight a deadly threat is instinctual and preexists law.

The Mannie Hyman Saloon is the location of Doc Holliday's last gunfight.
The Mannie Hyman Saloon is the location of Doc Holliday’s last gunfight. [True West Archives]
One such case that shows us the state of the Castle Doctrine outside the home is the 1885 murder trial of the famous gunfighter and gambler, Doc Holliday. Three years after the Earp-Vendetta Ride out of Tombstone, Arizona, Holliday’s lifelong battle with tuberculosis was now getting the better of him. Increasingly gaunt and frail, he moved to Colorado in hopes the mountain air would save his life. He briefly settled in Leadville, where he made a sparse living as a gambler once again. In August 1884, he borrowed $5 from lawman Billy Allen. Later, Holliday learned that Allen was armed and searching for him to make him repay his debt. When Allen entered the Mannie Hyman Saloon and found his man, Holliday drew a revolver and shot him dead. Allen was allegedly unarmed at the time. Holliday was charged but acquitted because the jury believed Allen was out to do Doc harm that day. (True West Magazine) Although it was not brought up in trial transcripts, the saloon itself was a natural abode for Holliday and it was a place he had a legal right to be, although it wasn’t home.

Changed Meanings in the Twentieth Century

Doc got off because of the attitudes of the time but different states and localities had different interpretations of the Castle Doctrine and how it pertained to standing one’s ground in a defensive encounter. Even the doctrine as it sat in seventeenth-century England was not absolute. What constitutes a break-in and a danger to life and limb? These were answered on a case-by-case basis and, unfortunately, it meant hauling self-defenders to court to make their case. By the mid-20th century, the Castle Doctrine was strengthened and cases such as Miller vs. United States limited the police powers to invade homes unannounced and without warrants that were drafted on suspicion. But in places throughout the country, particularly on the East Coast, a duty to retreat was prevalent.

In 1971, the flaws in the “duty to retreat doctrine” were tested in the public discourse in Commonwealth vs. Shaffer. Roberta Shaffer was the mother of two children who lived with her abusive common-law husband in Sharon, Massachusetts. After an altercation, Shaffer was told to leave the house with her children at a given time. When she did not comply, her husband attacked her. Shaffer ushered her children into a room and locked the door. She picked up a .22 rifle and shot her husband as he broke down the door, killing him. Shaffer was convicted of manslaughter. In 1975, the Massachusetts Supreme Court affirmed her conviction based on a duty to retreat tradition in Mass. case law. Massachusetts governor Michael Dukakis ultimately pardoned Shaffer, but the uproar over a defending mother being thrown in jail caused enough momentum for the Mass. legislature to formally adopt the Castle Doctrine.

A map of the United States. Those in yellow have "stand your ground" laws.
The USCCA’s schematic on “stand your ground laws.” Those in yellow have them, those in red do not. [USCCA]

The Castle Doctrine Today

The Castle Doctrine in the 21st century is both weaker and stronger than it ever has been. Its primary function to deter state interference has been watered down over the course of the War on Drugs, with various exceptions to warranted searches and seizures up to and including no-knock raids. But as it pertains to personal protection, the Castle Doctrine has experienced a renaissance, as duty to retreat laws failed and the modern concealed carry movement commenced.

Duty to retreat laws were increasingly codified with the rise of urban violence in the 1960s in the hope that it would reduce fatal confrontations. But the Shaffer case, among others, changed public perception and today the Castle Doctrine is recognized to some degree in all 50 states. 38 states have “stand your ground” laws. Formal codification began when Florida formally embraced the Castle Doctrine with strong “stand your ground” language in 2005. Therein, “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.” 12 states, as well as the District of Columbia, have duties to retreat, although it is usually limited to public places and not the home.

The Castle Doctrine and “stand your ground laws” are a legal reality in the majority of states, but their exercise does not come without controversy. In general, to invoke the Castle Doctrine and self-defense is an affirmative defense to justify an action, rather than denying one took place. If found to be justified, the defender is held harmless in a criminal court or before a grand jury. However, the preponderance of the evidence is less in civil cases. As such, it is possible for a person to be not guilty of a crime but take the fall in civil court down the road. Beginning in the 1980s with Colorado, states have weighed in on immunity for the justified self-defender and it has invited controversy.

Anti-firearm groups such as the Giffords Law Center and Everytown for Gun Safety believe that these laws increase the number of homicides and allow criminals to commit murder with no recourse, allowing people to shoot when they otherwise might not. Mistakes and malice do, indeed, happen.

In 1994, a Scottish oilman named Andrew de Vries was on business in Houston, Texas. After a night of drinks, de Vries allegedly jumped a fence, and rang a homeowner’s doorbell. When there was no answer, the homeowner saw de Vries loitering near the backyard fence and pounding on the backdoor. The homeowner fired at de Vries in the mistaken belief that he was a burglar. The resident in question was not charged and attempts by de Vries’s family to gain restitution went nowhere.

A more ominous episode was the 2014 case of Markus Kaarma, a homeowner in Missoula, Montana who baited his garage after a string of burglaries. Kaarma shot a seventeen-year-old exchange student who was searching for alcohol and claimed self-defense. The claim was thrown out because his previous comments on his desire to kill burglars coupled with his baiting the scene proved murderous intent.

As terrible as these anecdotes are, they serve as reminders of our own misguided and misinformed expectations. A self-defender’s options are not limitless, and a course of action has to be thought of ahead of time. How you employ deadly force is not only driven by the laws that are on the books but the conscience that is within you and these are finer points you do not want to hash out when you are in potential danger.

Despite the propaganda against the Castle Doctrine and “stand your ground” laws as a “license to kill” or a “shoot first” law, these doctrines were never unlimited. It originated as a means of protection from tyranny in the same vein as the Fourth Amendment, rather than the Second. But in the feeling of security of oneself and one’s home, the theory was never unlimited. From the “easy manner” of the Forcible Entry Act to the “reasonable person” standard of the present, the defender has to be on firm legal ground and a grand jury will have to believe it. Most of all, you have to believe it.

Terril is an economic historian with a penchant for all things firearm related. Originally a pot hunter hailing from south Louisiana, he currently covers firearms and reloading topics in print and on his All Outdoors YouTube page. When he isn't delving into rimfire ballistics, pocket pistols, and colonial arms, Terril can be found perfecting his fire-starting techniques, photographing wildlife, and getting lost in the archives.

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