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Accomplished Advocate
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
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
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