PA Bill Number: SB1198
Title: In plants and plant products, providing for plant and pollinator protection; conferring powers and duties on the Department of Agriculture and ...
Description: In plants and plant products, providing for plant and pollinator protection; conferring powers and duties on the Department of Agriculture and .. ...
Last Action: Referred to AGRICULTURE AND RURAL AFFAIRS
Last Action Date: May 17, 2024
Stand Your Ground: The Ancient History Of The Castle Doctrine :: 09/29/2016
A local man who authorities say killed an attacker at his own home is not facing murder or manslaughter charges.
On Aug. 10, 2016, authorities say Dustin Burkhart shot Joseph Beeman after Beeman showed up at the Burkhart residence with a gun. Beeman refused to leave, fired shots at Burkhart, and Burkhart returned fire, according to court documents. Four days later, Beeman died of the gunshot wounds.
Burkhart is a felon, with a 2007 Class C Felony drug conviction in Camden County.
As a felon, he barred from owning or possessing a firearm. As a result, he has been charged with Unlawful Possession of a Firearm — the only charge stemming from the Aug. 10 gun battle. But now he claims the state law that prohibits him from owning a gun violates his constitutional right to keep and bear arms.
Should felons be restricted in their right to defend their home? Does the 2nd Amendment—the right to keep and bear arms—apply even to felons, who though prohibited by state law from owning a firearm, seek to defend their home or loved ones from an attacker?
Among the legal issues is Burkhart’s right to protect himself from eminent danger.
Missouri, like most states, allows citizens to carry a firearm for protection — one way in which the State upholds the Second Amendment — but citizens understand there are a few exceptions to the legal right to carry a firearm. One of those exceptions in Missouri became the focus of a 2016 Missouri Supreme Court decision about a 2014 vote by the people. The Missouri General Assembly referred Constitutional Amendment 5, also known as “Missouri Right to Bear Arms” to the citizens. It was placed on the August 5, 2014 primary election ballot and passed with 60.95 percent voting yes.
Almost immediately, the language of the new law caused problems. The new amendment restricts those who have been convicted of a “violent felony” from owning or possessing a firearm. But standing Missouri law prohibits firearm possession by any convicted felon, whether the felony was a violent one or not. Prosecutors anticipated challenges in prosecuting those convicted of lesser, non-violent felonies for firearm possession. Furthermore, Amendment 5 set a very high bar for any statute limiting the new “unalienable” right by requiring “strict scrutiny” of any measure restricting it.
The high court reversed lower court rulings that had overturned convictions for possession of firearms by persons having been previously convicted of non-violent felonies. Even the principle sponsor of the amendment, Sen. Kurt Schaefer, R-Columbia, stated that the measure was never intended to give any convicted felon the right to possess a firearm.
However, one of the main justifications for Amendment 5 was that citizens must have the right to protect themselves and family members within their own homes from eminent danger posed by others during the commission of a serious crime. These “serious” crimes must be potentially violent in nature and involve illegal entry into the home.
This right to self protection is not codified normally, but is a legal doctrine based upon case law from previous court rulings. This right is more commonly known as the Castle Doctrine, a concept of self-help as opposed to state-help. Castle Doctrine uses phrasing as ancient as the Roman Empire and codified in English Common Law brought with those who settled this country. That phrasing states that a person’s “home is their castle,” and they should feel safest in their home. However, as early as 1381, the Forcible Entry Act in English law required a homeowner to retreat and placed criminal sanctions upon breaking into an abode through use of force or threat of force. These provisions in the law insured the crimes would be handled by civilized means within the court system rather than by the homeowner.
Even then there was debate about the idea of a citizen solving his own problem in this regard, but William Blackstone in his Commentaries on the Laws of England explained that English laws were specific and regarded a man’s house as his castle, referencing works from ancient Rome citing the doctrine. English law held it to be of such importance that not even agents of the Crown were allowed to break open doors to serve civil process. The 4th Amendment to our U.S. Constitution derives from that aspect of the Castle Doctrine and grants the people the “…right …to be secure in their…houses…against unreasonable searches and seizures…” without a warrant.
In the frontier days of American expansion, the idea of retreating from a confrontation that someone else started seemed foreign to the American mind. In 1885, the legendary Doc Holiday actually used this as a legal defense after shooting a man over a gambling debt. Holiday owed $5 to Billy Allen and was told that Allen was armed and looking for him to collect. Although Allen was unarmed when he and Holiday met, Holiday’s attorneys argued at trial he had the right to defend himself from Allen. The jury agreed and acquitted Holiday. Historical narratives suggest the concept of a man not backing down from a fight he did not start weighed heavily in jurors’ minds.
Closely linked to the Castle Doctrine, the so-called Stand Your Ground laws are also based on the concept that one should not be required to flee from an area where there exists a legal right to occupy the space. Currently expressed in state laws, these spaces include a person’s workplace, such as an office, as well as their personal vehicle. Missouri law currently specifies an individual does not have a duty to retreat from real property he or she owns.
The term “make my day,” popularized by Clint Eastwood’s Dirty Harry character in the movie Sudden Impact became attached to laws granting civil and criminal immunity to a homeowner who uses force, including that force which is likely to result in death or great bodily harm when confronted by someone invading his home by force with criminal intent. The first of these laws was passed in Colorado. Granting this level of legal immunity to a citizen while protecting those in his or her home recognizes the presumption of extreme danger from someone willing to break into an occupied dwelling at night when those living there are asleep and most vulnerable.
Central to the issue of invading the space of another is the crime of trespassing. A trespass occurs when someone intentionally physically invades the property of another or refuses to leave when ordered to leave. The crime of trespass requires intent. Accidentally entering the property of another where no boundary (such as fence or sign) exists does not immediately constitute a trespass. Refusing to leave after being informed would constitute a trespass, and according to information currently available, on Aug. 10, Burkhart ordered Beeman to leave the property.
A constructive trespass occurs if someone has been invited onto the land, but refuses to leave when told to do so. The Colorado “make my day” law specifically applied to those making criminal entry into the building, but not to persons who simply remain unlawfully within the structure.
Also, the culpability of the intruder is often a factor, as these laws were not meant to be a justification for shooting someone who enters a dwelling accidentally or in good faith. The intruder must have a culpable mind, known by the Latin phrase, mens rea. In other words, the intruder must have a “guilty mind;” he must “knowingly” break in through a door or window. This is usually an element of the crime indicating the person is culpable as they knew the act was wrong. A drunken neighbor trying to get his key into the wrong front door lock would not illustrate culpability or intent to violate a law. On the other hand, a man wielding a crowbar to break through the window or door lock mechanism by brute force does illustrate intent of a guilty mind.
These laws generally grant a degree of legal immunity, both civil and criminal, to a person acting in self defense within the bounds of the law as intended for protection from violent criminal action. However, the use of force which causes injury or damage to someone nearby who was not acting in a criminal manner would definitely not be immune from criminal or civil action. The innocent bystander, commonly referred to as “collateral damage,” if injured or killed by the use of force while protecting oneself from a violent attack, could result in criminal charges being filed as well as a civil suit for the injury regardless of the Castle Doctrine.
Since the most common method of availing oneself of these legal rights and protections in self defense is a firearm, the possibility of missing the intended target with one or more stray bullets is high. In addition, the drywall in a modern house will do little to stop a stray bullet from entering an adjoining room or even exiting a house in some cases. Nationwide, police officers with hundreds of hours of training average somewhere around a 20–40 percent hit ratio in shots fired at perpetrators. These statistics include the fact that most gunfights involving an officer take place at less than 25 feet. An NYPD statistical evaluation from 1994 – 2000 indicated that 89 percent of police shooting incidents took place at 21 feet or less. The hit ratio by distance from that study showed from 0-2 yards, 38 percent of the police bullets actually hit their intended target. From three to seven yards, 17 percent hit their target.
Another legal point affecting charges against Burkhart that law enforcement has weighed is the duty to retreat. In states where the Castle Doctrine applies, there is no duty to retreat even before the use of deadly force. In some states, this applies to the area outside the home such as the yard or driveway. In Missouri, the specific statute language is found at MRS 563.031 and defines the “castle” or home as “…any building, inhabitable structure, or conveyance of any kind, whether the building, inhabitable structure, or conveyance is temporary or permanent, mobile or immobile which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night, whether the person is residing there temporarily, permanently or visiting, and any vehicle.” Other statutory language removes the duty to retreat when a person is outside the building or structure on property owned or leased by him.
In Missouri, Castle Doctrine does not require the homeowner to retreat in the face of a threat, especially one in which the homeowner ordered the trespasser to leave. Information thus far suggests that Beeman fired first, indicating an intent to cause bodily harm, but there must also be specific facts to support such belief within the totality of the circumstances beyond all reasonable doubt. This is the highest level of proof in our criminal justice system. This level does not mean there can be no other explanation, but that any other explanation would be so unreasonable as to be totally unbelievable. Central to the decision whether or not to prosecute is the rights of a person to protect his own home within the bounds of the law.
Thus, Burkhart’s alleged fatal shooting of Beeman is not being prosecuted. Rather, Burkhart’s alleged crime was possession of a firearm by a felon. He contends, however, that his right to defend himself by keeping and bearing arms is not and should not be negated due to his prior felony conviction.
It will be up to the court to decide whether his argument has any merit.
