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Is it Legal to Shoot an Intruder?

It is two o'clock in the morning, you're awakened by the sound of breaking glass. You race down the hall with your gun drawn to find a stranger crawling through your bathroom window. If you shoot him, will you be criminally charged with assault or murder? Could the intruder sue you for wounding them? The answers depend on the state you live in and on your circumstances. So, what legal protection might you have if you shoot an intruder?

The prime legal protection you may have for shooting an intruder is called the "Castle Doctrine". There is also another doctrine called "Stand Your Ground" that may provide some protection depending on the state you live in. Both of these doctrines fall under the broader umbrella of self-defense.

So is it illegal to shoot an intruder? The answer depends on whether you were acting in self-defense and whether any of these doctrines apply. This article will address the elements that are needed to establish self-defense and, more specifically, the Castle Doctrine and the Stand Your Ground Doctrine.

Is It Self-Defense If I Shoot an Intruder?

The law gives everyone the right to defend themselves with a reasonable response. Self-defense is an affirmative defense to a charged violent crime. This means that if someone is charged with murder or assault, self-defense can be a legal excuse for the conduct if they can prove it was a reasonable response in a court of law.

In order to use self-defense as a shield against a charge for a violent crime in most jurisdictions, you must:

  1. Not be the aggressor;
  2. Only use enough force to combat the threat and no more (i.e. you can't bring a gun to a fistfight);
  3. Have a reasonable belief that force is necessary;
  4. Have a reasonable belief that an attack is imminent; and
  5. Retreat (if possible).

What Is the Difference Between the Castle Doctrine and Self-Defense?

The Castle Doctrine stems from old English Common Law that holds that your home is your castle and that you have a right to defend your castle. The doctrine is an offshoot of self-defense and eliminates the requirement to retreat. Most states have some variation of the Castle Doctrine in their laws.

The prime difference between self-defense generally and the Castle Doctrine is that there's no duty to retreat and there's a presumption that deadly force was necessary.

Typically, state laws can allow for the use of deadly physical force and it's legally presumed to be justified if an intruder is in the process of unlawfully and forcefully entering a dwelling or residence. Some states even allow the use of deadly force if there is an unlawful and forceful entry into a business or occupied vehicle.

However, not all states have codified the Castle Doctrine. States like Vermont have justifiable homicide laws and then rely on the courts to determine if force was necessary to defend one's home.

The general elements that would allow protection by the Castle Doctrine are:

  1. There was a forceful and unlawful entry into your home (or business or occupied vehicle in some states);
  2. You were not the original aggressor;
  3. You were not engaged in criminal activity; and
  4. You have a legal right to be where you are.

There is a split amongst the states as to whether or not deadly force can be used. The majority of states hold that any degree of physical force, including deadly force, can be used by the occupant to protect against an invader. But there is a strong minority of states, including West Virginia, that requires a reasonable belief that the intruder intended to inflict serious bodily injury.

Duty to Retreat or Stand Your Ground?

In many states, there's a duty to retreat to safety, if possible, before using force. However, in many other states, there are "Stand Your Ground" laws that remove the duty to retreat and allow a person to claim self-defense, even if they made no attempt to flee. However, even in "Stand Your Ground" states there is no license to attack without cause, and the rules vary on the ability to use lethal force.

Stand Your Ground differs from the Castle defense, as it can be used in more places than just a person's home, business, or automobile. While the Castle Doctrine holds that there is no duty to retreat within one's home, the Stand Your Ground doctrine eliminates the duty to retreat wherever you may feel threatened.

Is It Illegal to Shoot an Intruder Where You Live? Get Answers From a Lawyer

Self-defense, the Castle Doctrine and Stand Your Ground are powerful defenses that can prevent criminal charges or civil lawsuits from being filed, but not in all cases and not in all states.

Even in the states that do allow for these defenses, there can be circumstances that sometimes make it difficult to determine if these defenses apply. If you're facing criminal charges and you believe you acted in self-defense, it's in your best interest to speak with an experienced criminal defense attorney to discuss your specific situation.

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