Monday, November 07, 2011

Much ado about Castle Doctrine

I don't have strong feelings about the "castle doctrine." The very thing that makes it attractive cuts against its necessity. Under current law, juries are unlikely to second guess the judgment of people who have had to make split second decisions in the face of a home invasion. Prosecutors, knowing this, may be reluctant to bring charges. But this observation, while suggesting that the need for the doctrine is not great, also undercuts the arguments against it. If no one gets convicted for defending themselves in the event of a home invasion, then it is unlikely that a change in the legal standard will allow more people to get away with murder. (The idea that a change in a legal doctrine that few are even aware of will change people's behavior in a time of crisis is too contrived to take seriously). Recognizing this, the Criminal Law section of the state bar association tries to argue that the doctrine will facilitate spousal murder. The argument is not persuasive. In a floor memo authored by Greg O'Meara, the section says that a husband might now shoot his wife and then falsely claim that there was a home invasion. The reasonableness of his decision to use force cannot be examined and he is more likely to evade prosecution. The memo states that "AB 69 requires a jury instruction in every criminal case that the jury should find that, if the crime took place in the defendant’s home, vehicle, or place of business, the actor reasonably believed that he was the victim of an imminent attack with deadly force and that his own use of deadly force was presumptively necessary." But that's not true. The bill requires that presumption only in the event of unlawful or forcible entry. While, its true, as the section's memo points out, that a defendant might argue that he was reasonably mistaken about the fact of an unlawful or forcible entry but, in order for the new law to be outcome determinative, a the jury is going to have to buy the mistake defense first. In other words, for the section's horrible to come true, we need a case where a jury would accept the defendant's story about a nonexistent home invader or whatever is supposed to have caused him to be mistaken will be accepted by the jury (at least so as to create reasonable doubt), but then conclude that the degree of force against this (actually) nonexistent behavior was unreasonable. Such a scenario is possible but implausible. The perpetrator's story is always going to portray the "invader" as hell bent for mayhem or his mistaken reaction to some indication of an invasion as harrowing. If the jury buys it (or can't dismiss it so readily as to dispel reasonable doubt), it's hard to imagine a a case where it would not also conclude that the use of force was reasonable. Consider the notorious murder of Barbara Anderson by her husband Jesse outside a restaurant at Northridge, Anderson falsely claimed that he and his wife were attacked and that he was wounded and she was killed in the attack. In fact, he killed her. The case doesn't involve a home invasion and the law afforded him no presumption of reasonable force, but I think it's still instructive. Anderson needed to sell - at least well enough to raise a reasonable doubt - that there was an attacker. If he had been entitled to use a presumption of reasonable force, it would have done him no good unless the prosecutor, or if he was charged, the jury gave the story sufficient credit to create reasonable doubt.. Assume they believe him, i.e., they conclude that there was an attacker. How likely is it that they will be able to conclude that his use of force was unreasonable? A more plausible case is the homeowner who kills an invited guest and then falsely claims that he or she entered unlawfully. But in that case as well, the castle doctrine defense is determinative only in a scenario in which the jury buys the fabricated story of an invasion but would have concluded that the use of force in response to that nonexistent invasion was unreasonable. It strikes me as more plausible because there is likely to be physical evidence of what the victim was or was not doing apart from the perpetrator's lie (which both hypotheticals require us to assume that the jury at least does not disbelieve), but still pretty unlikely. I can't help but think the castle doctrine debate is more about ancillary messages that is opponents and proponents want to send. It's proponents want to make a statement about property rights and self defense. It's opponents want to make a statement about subordinating property rights and the dangers of self defense. But i wonder whether the bill is likely to have a great deal of real world impact.

2 comments:

James Rowen said...

Dude: Where is your paragraphing?

John Foust said...

I think what you're saying, Professor, is that if you want to kill your spouse and score that presumption of immunity, be sure to carefully craft a plausible scenario to bolster your reasonable belief that the entry was unlawful and forcible. For example, pile something breakable and noisy near the door where you expect them to enter late at night.

Is that what O'Meara left out? Of course, not all spouse-killers will be so crafty as to find this new safe haven in the law. So why do we need to introduce an exemption for those who are?

James, you're just being picky. I suspected his "enter" key was broken but didn't say anything about it.