Is it Legal to Shoot an Intruder?

It's two o'clock in the morning and you're awakened by the sound of breaking glass. You race down the hall with your gun drawn to find a stranger trying to enter your back door. If you shoot him, will a police officer charge you 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 in your own home is called the "castle doctrine." There is also another legal defense 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 if I shoot someone who breaks into my house? The answer depends on whether you were acting in self-defense and whether any of these doctrines apply. This article will address the elements necessary 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 laws provide 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 in a court of law that it was a reasonable response.

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

• Not be the aggressor
• Only use enough force to combat the threat and no more
• Have a reasonable belief that such force is necessary
• Have a reasonable belief that there is an immediate threat
• Have been unable to retreat

The legal doctrine of defense of others is like self-defense. It permits a person to "step into the shoes" of another person who is under attack. If the other person (the victim) can use a certain level of force to defend against an attack under self-defense laws, then the person could also use such force. Defense of others may appear in cases where a person uses deadly force to defend a family member or loved one who faces an immediate threat of great bodily harm from an intruder.

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, including with a deadly weapon. The doctrine is an offshoot of self-defense and eliminates the requirement to retreat. The prime difference between a regular self-defense claim and the castle doctrine is that under the latter, there's no duty to retreat and there's a presumption that deadly force was necessary.

 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 adopted the castle doctrine. States like Vermont have justifiable homicide laws and rely on the courts to determine whether non-deadly force or deadly force was necessary to defend one's home.

If you reside in a state that adopts the Castle Doctrine, the presence of the following facts may permit you to use the defense:

• There was a forceful and unlawful entry into your home (or business or occupied vehicle in some states) by a trespasser
• You were not the original aggressor
• You were not engaged in criminal activity
• You had a legal right to be where you were

There is a split amongst the states as to the use of deadly force. The majority of states hold that the homeowner can use any degree of physical force, including deadly force, to protect against an intruder. But there is a strong minority of states, including Massachusetts, that require the homeowner to have a reasonable belief that the intruder intended to inflict serious bodily injury.

When does the stand your ground defense apply?

Self-defense laws often included a duty to retreat in the past. This duty still exists in several states. The castle doctrine may eliminate the duty to retreat when the attack occurs in a person's home, office, or vehicle, depending on the state. So, where does the stand your ground defense come into play?

In recent years, many states adopted stand your ground laws. The increase in stand your ground provisions coincided with efforts of many states to expand citizens' rights related to the Second Amendment and state gun laws. Stand your ground laws remove the duty to retreat and allow a person to claim self-defense, even if they made no attempt to flee an assault.

Still, states do not support a license to attack another without cause. These cases will often turn on whether the shooter claiming the defense had a reasonable fear of harm from the other person.

The rules related to the stand your ground defense will vary on the ability to use lethal force. For example, in Florida, the stand your ground law provides:

• A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend themselves or another against the other's imminent use of unlawful force. A person who uses or threatens to use such force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.
• A person is justified in using or threatening to use deadly force if they reasonably believe that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to themselves or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use deadly force is not engaged in a criminal activity and is in a place where they have a right to be.

Florida also provides a statute that defines a "forcible felony," which enumerates several felony offenses. Florida's stand your ground law permits someone to use deadly force to prevent the imminent commission of a forcible felony.

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 a person has reasonable belief they are under imminent threat from another.

In Florida, a defendant can raise the stand your ground doctrine before trial and seek immunity from prosecution and civil action. Where the defendant files such a motion in a criminal case, the State carries the burden by clear and convincing evidence, that immunity should not apply.

Not all states that have stand your ground laws permit the defendant to raise the matter before trial. Since these laws can vary, anyone facing charges will want to talk with a criminal defense lawyer to understand their rights.

When Is It Legal to Shoot an Intruder In Your State?

Talk to An Attorney

People don't often plan how they will respond to a break-in at their home. Legal defenses such as self-defense, the castle doctrine, and stand your ground can be difficult to understand and may vary from state to state. You can get legal advice to learn about your rights before law enforcement starts asking you questions. You can also see an attorney after the filing of criminal charges. Consider talking with an experienced criminal defense attorney to discuss your specific situation or general concerns today.