North Carolina Castle Doctrine Law

From journalpatriot.com, 28 November, 2011 by Jule Hubbard via http://www.freerepublic.com/focus/f-news/2813483/posts

North Carolina’s new “Castle Doctrine” law, which addresses certain circumstances under which a person can legally shoot or use other deadly force against another, takes effect Thursday, December 1, 2011.

North Carolina’s current Castle Doctrine only applies to homes, but under the new law it also applies to vehicles and places of work. The Castle Doctrine, rooted in English common law, expresses the belief that one should be safe from illegal intrusion in one’s home.

The new law is much longer and clarifies when deadly force can be used.

New Law More Specific

The new law defines a person’s home as any property with a roof where the person lives and also includes “curtilage,” which is the area immediately around a home. It defines a person’s workplace as any property with a roof used for commercial purposes. It says a home or workplace can be temporary or permanent and specifically says either one can be a tent.

Under the new law, the lawful occupant of a home, motor vehicle or workplace isn’t required to retreat prior to using deadly force.

The new law presumes that a person who unlawfully and by force enters or attempts to enter one of these locations intends to commit an unlawful act involving force or violence.

The new law presumes that a lawful occupant of a home, motor vehicle or workplace reasonably fears imminent death or serious bodily harm to himself, herself or another when using defensive force likely to cause death or serious injury if:

• the person against whom defensive force was used was unlawfully and forcefully entering or had already entered a motor vehicle, or workplace, or if the person had taken or was trying to take another person against his will from the home, motor vehicle or workplace;

• the person using defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

When Deadly Force Is Not Lawful

The new law says presumption of lawful use of deadly force does not apply when:

• the person against whom the defensive force is used has the right to be in or is a lawful resident of the home, motor vehicle, or workplace, and there is no written injunction or order prohibiting contact;

• the person sought to be removed from the home, motor vehicle or workplace is a child or grandchild or is in the lawful custody or under lawful guardianship of the person against whom defensive force is used;

• the person using defensive force is using the home, motor vehicle, or workplace to further any criminal offense that involves the use or threat of physical force or violence against anyone;

• the person against whom the defensive force is used is a law enforcement officer or bail bondsman in lawful performance of his official duties, and the officer or bail bondsman identified himself or herself or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer or bail bondsman;

• the person against whom defensive force is used has discontinued efforts to unlawfully and forcefully enter the home, motor vehicle or workplace and has exited those locations.

Defense of Self or Others

The new law also modifies rules of self-defense and defense of others.

It provides a person using non-deadly force with immunity from civil and criminal liability if the person using it reasonably believes it’s necessary for defense against imminent unlawful force.

It says a person can use deadly force without first retreating if the person reasonably believes it’s necessary to prevent imminent death or great bodily harm to himself or another person or under circumstances permitted under the state’s revised Castle Doctrine.

It says a person using non-deadly or deadly force in accordance with the new law is protected from civil or criminal liability unless he used it against a law enforcement officer lawfully performing his duties and the officer identified himself as required or the person using force knew or should have known that the person was a law enforcement officer lawfully performing his duties.

Defensive force isn’t justified for people committing or escaping after committing a felony or who provokes the use of force.

The new law says a person attempting to commit, committing, or escaping after the commission of a felony isn’t justified in using defensive force.

The new law says a person who provokes use of force against himself is justified in using defensive force if he believes he is in imminent danger of death or serious bodily harm and has no reasonable way to escape. It says this person is also justified in using defensive force if he clearly indicates he wants to withdraw from physical contact and the other person continues use of force.

Old Law Much Shorter

The much shorter law being replaced says, “A lawful occupant within a home or other place of residence is justified in using any degree of force that the occupant reasonably believes is necessary, including deadly force, against an intruder to prevent a forcible entry into the home or residence or to terminate the intruder’s unlawful entry if the occupant reasonably apprehends that the intruder may kill or inflict serious bodily harm to the occupant or others in the home or residence, or if the occupant reasonably believes that the intruder intends to commit a felony in the home or residence.” It also says, “A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder in the circumstances described in this section.”

§ 14‑51.2.  Home, Workplace, and Motor Vehicle Protection; Presumption of Fear of Death or Serious Bodily Harm.

(a)        The following definitions apply in this section:

(1)        Home. – A building or conveyance of any kind, to include its curtilage, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed as a temporary or permanent residence.

(2)        Law enforcement officer. – Any person employed or appointed as a full‑time, part‑time, or auxiliary law enforcement officer, correctional officer, probation officer, post‑release supervision officer, or parole officer.

(3)        Motor vehicle. – As defined in G.S. 20‑4.01(23).

(4)        Workplace. – A building or conveyance of any kind, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, which is being used for commercial purposes.

(b)        The lawful occupant of a home, motor vehicle, or workplace is presumed to have held a reasonable fear of imminent death or serious bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or serious bodily harm to another if both of the following apply:

(1)        The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a home, motor vehicle, or workplace, or if that person had removed or was attempting to remove another against that person’s will from the home, motor vehicle, or workplace.

(2)        The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(c)        The presumption set forth in subsection (b) of this section shall be rebuttable and does not apply in any of the following circumstances:

(1)        The person against whom the defensive force is used has the right to be in or is a lawful resident of the home, motor vehicle, or workplace, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person.

(2)        The person sought to be removed from the home, motor vehicle, or workplace is a child or grandchild or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used.

(3)        The person who uses defensive force is engaged in, attempting to escape from, or using the home, motor vehicle, or workplace to further any criminal offense that involves the use or threat of physical force or violence against any individual.

(4)        The person against whom the defensive force is used is a law enforcement officer or bail bondsman who enters or attempts to enter a home, motor vehicle, or workplace in the lawful performance of his or her official duties, and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties.

(5)        The person against whom the defensive force is used (i) has discontinued all efforts to unlawfully and forcefully enter the home, motor vehicle, or workplace and (ii) has exited the home, motor vehicle, or workplace.

(d)       A person who unlawfully and by force enters or attempts to enter a person’s home, motor vehicle, or workplace is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(e)        A person who uses force as permitted by this section is justified in using such force and is immune from civil or criminal liability for the use of such force, unless the person against whom force was used is a law enforcement officer or bail bondsman who was lawfully acting in the performance of his or her official duties and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties.

(f)        A lawful occupant within his or her home, motor vehicle, or workplace does not have a duty to retreat from an intruder in the circumstances described in this section.

(g)        This section is not intended to repeal or limit any other defense that may exist under the common law. (2011‑268, s. 1.)

How Does North Carolina’s Version of the Castle Doctrine Compare to Those of Other States?

http://www.civitasreview.com/public-safety/how-does-ncs-version-of-the-castle-doctrine-compare/

From Civitas Review Online, a Weblog of the Civitas Institute of North Carolina, Taylor Holgate

Plenty of states, including North Carolina, have laws that give citizens the right to use deadly force against intruders that invade their homes or other property. This concept–the Castle Doctrine– protects your right to protect your own “castle.”

Though NC does have some Castle Doctrine protection,  currently the mix of common and statutory law leaves too much gray area that can leave crime victims who protect themselves in a legal mess.  Florida’s Castle Doctrine is written with less ambiguity and gives citizens more freedom to defend themselves in the event of an attack or intrusion.

Here is a quick comparison of how North Carolina measures up to Florida when it comes to Castle Doctrine protections.

  • Duty to retreat– In Florida a person who is attacked has a right to meet force with force, whether they are attacked in their home or a public place. In North Carolina you have a right to use force in the case of an attack or intrusion into your home, but there a duty to retreat if the attack occurs outside of your home like in a car or in public.
  • Presumption of intent to commit a felony or violence and fear of death or serious injury– In Florida there is a legal presumption that an intruder or attacker entering a home has the intent to commit a felony and that the victim has a reasonable fear of death or injury. In North Carolina, occupants must prove that they had a reason to believe the intruder planned to commit a felony and that they feared that the intruder was going to harm them physically.
  • Immunity from criminal prosecution and civil liability – If a question about whether force used was justifiable arises in Florida, the burden is on the state to prove that force was excessive. In North Carolina the victim of a crime must prove that the force they used was justified.

The most recent attempt to update the North Carolina Castle Doctrine, SB928, passed the state Senate but failed to make it out of committee in the House.  Sen. Andrew Brock (R-Davie, Rowan), a co-sponsor of the bill, says that it  would have given an individual “a right to defend themselves if they [felt] that their life [was] in danger.” The bill would have expanded Castle Doctrine protection to include vehicles.

Legislation to clarify and strengthen the Castle Doctrine in NC is a realistic plan to include more rights for citizens who want to defend themselves.

Police officers cannot be in all places at all times. Expanding the law would not mitigate duties of officers. Rather it would provide supplemental support in rare, extreme cases. With tight budgets, law enforcement could be  subject to scrutiny and funding cuts like any other government agency.

North Carolinian’s should have a right to protect themselves and others should a public attack like the one in Tuscon, Arizona ever happen in NC.

Published on March 13, 2012 at 11:08 am  Comments (1)  

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