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Castle doctrine

Derided by detractors as the “shoot-first-and-ask-questions-later” law, or the “make-my-day” doctrine, castle doctrine proposals have been aggressively pushed in state legislatures by the National Rifle Association.

In 2007, a suburban Houston, Texas, resident named Joe Horn spotted a couple of burglars at his neighbor’s home. He called 911 and asked a dispatcher if he should stop them with his shotgun. The dispatcher told him to sit tight.

“Ain’t no property worth shooting somebody over, OK?” the dispatcher said, according to published reports of the 911 call.

That wasn’t OK with Horn, who noted that the “laws had been changed” in Texas, and that he had a right to protect himself.

“I’m gonna kill ’em,” he told the dispatcher.

And he did, with three shotgun blasts to the back as they crossed his yard with a bag of stolen goods. He was never charged with any crime related to the killings.

The law that Horn was talking about is the “castle doctrine” statute, many versions of which are sweeping the nation. The law holds that the home is a castle, and any man or woman can take whatever means they deem fit to protect it. In Texas, the castle doctrine law covers not only the home, but also anywhere a person has “a right to be.”

Derided by detractors as the “shoot-first-and-ask-questions-later” law, or the “make-my-day” doctrine, castle doctrine proposals have been aggressively pushed in state legislatures by the National Rifle Association, which after successfully lobbying to legalize concealed carry of firearms in every state but Illinois, has made the castle doctrine its central focus.

“This really comes down to a question of fundamental American justice and what you believe it should be,” NRA lobbyist Darren LaSorte told Wisconsin’s Assembly Judiciary and Ethics Committee at a public hearing on the proposal in May.

At least 28 states now have some version of the law. In Wisconsin, castle doctrine proposals passed the state Assembly in 2007 and 2010, the latter by a 68-29 margin in a Legislature controlled by Democrats. Both times the proposal died in the Senate. Castle doctrine bills in the Senate and Assembly this year are still being tweaked and have yet to get out of committee, but with Republicans in charge of the Legislature and a Republican governor, some version is likely to become law. 

Castle doctrine laws shield citizens from criminal charges and civil lawsuits if they use deadly force against a home intruder. In some states, like Texas, that protection is extended to places outside the home.

Wisconsin’s proposal in the Assembly, which originally protected residents in their homes, has been amended to include vehicles and businesses. But the NRA wants more.

In some states, laws that require citizens to retreat if possible to avoid a deadly confrontation have been turned back by “stand-your-ground” provisions within castle doctrine bills. Current Wisconsin law doesn’t call for a retreat, but courts decide whether the use of deadly force is reasonable.

“Right now there’s no statutory obligation (in Wisconsin) to retreat if you’re attacked,” LaSorte says in an interview. “But it is used by the courts to consider reasonableness when a person has to act. So we would just like a person who’s being attacked in a very serious manner to not have to look behind them, look to the side to see if they can get away, and stand their ground, if that’s what they deem is appropriate, and fight.”

But critics say the law is unnecessary because no one can show any evidence that any Wisconsin resident has ever been prosecuted for killing someone while being attacked. 

“This is a solution looking for a problem,” says Jeri Bonavia, executive director of Wisconsin Anti-Violence Effort. “We already have the ability to protect ourselves here in Wisconsin, so they’re creating a scenario that just doesn’t exist.”

There are examples of citizens who have used deadly force and not faced prosecution. Take Kala Kornell, who in 2003 gunned down two men, killing them both, on Madison’s north side after they broke into her home looking for drugs. While the castle doctrine proposals pending in the Legislature specifically exempt those engaged in illegal activity from protections against civil and criminal liability, prosecutors determined that Kornell acted in self-defense, despite the fact that she was convicted of drug dealing after police found crack cocaine in her pocket after the shooting.

Dane County District Attorney Ismael Ozanne says that while in some states the burden of proof in cases of homicide in self-defense is on the person who used deadly force, in Wisconsin, the burden of proof is on the state.

The current system, he says, “works out just fine for us.”

Ozanne worries that the bill could be used by homeowners to exact the ultimate punishment on burglars, even if the intruder is trying to escape. 

“If someone’s in your house and they’re running out and there’s no issue with your safety and you shoot them, the castle doctrine would probably give you cover,” Ozanne says. “That may not be the best thing for society.”

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Greg O’Meara, a Marquette University law professor and chairman of the Wisconsin State Bar’s criminal law section, goes even further. He told the Assembly judiciary committee that the law could potentially provide cover to someone who commits premeditated murder.

“What you’re really doing with this bill is building in a defense for someone who might be killing someone in their own home,” he said. “It could be open season for people who commit domestic violence.”

O’Meara said that the State Bar’s criminal law section, comprised of 600 defense attorneys, prosecutors, academics and judges, Democrats and Republicans alike, voted unanimously to oppose the proposals.

Wisconsin, he said, already offers more protections than most states for those acting in self-defense. The castle doctrine, he said, could force judges to presume that execution-style killings or even premeditated murder are reasonable.

“When someone has shot his wife, shot his girlfriend, killed somebody he’s intended to kill for a long time and comes to court and says, ‘I was mistaken, I thought they were a home intruder,’ they get this presumption,” he said.

But state Sen. Van Wanggaard, R-Racine, who introduced the proposal in the Senate, testified that fears about the legal ramifications of protecting oneself or one’s family could mean the difference between life and death when faced with a situation that requires a split-second decision.

“This would remove that psychological impasse that an individual might have to react to protect their family or themselves from imminent danger,” he said.

It did with Horn, the man who gunned down the burglars in Texas in November 2007, only two months after the state enacted its castle doctrine law.

“The laws have been changed in this country since September 1,” he told the dispatcher before killing the men. “You know it and I know it.”