Doug Berger's Misguided Castle Doctrine

I am by no means an opponent of the 2nd Amendment, and have studied the Founding Fathers' reasoning behind its inclusion in our Constitution and concluded they had all citizenry in mind when they referenced the Militia, and not a tight select group as some of my fellow Liberals have concluded. With that clearly stated, I also believe the possession and use of firearms should be sensibly regulated, and the enforcement of our laws should be reserved for those we have given the responsibility to do such. Any effort to erode these common sense ideals should be scrutinized closely and potential consequences explored, or we may find ourselves one day living under the aura of vigilante justice again.

A bill was introduced last month by (believe it or not) Democratic Senator Doug Berger, titled the Castle Doctrine:

AN ACT to clarify when a person may use defensive force to protect against the unlawful and forcible entry into the person's dwelling by another, to prevent the removal of a person against his or her will from the person's dwelling, to provide that a person who is in a place where the person has a right to be has no duty to retreat, and to provide that a person is justified in using defensive force in these circumstances and so is immune from criminal prosecution and civil action for the use of such force.

A handful of other states have enacted such legislation, against the express wishes of a vast majority of law enforcement officials. But I'm not going to get into civilian legislators ignoring the wisdom of those whose experience and knowledge should be the primary resource for making such decisions. Okay, I guess I just did get into it. But I'm not going to belabor it.

First of all, the misleading nature of the title. A castle, except for the one in, "Robin Hood: Men In Tights", is a stationary structure. It ain't movin'. Even the phrase, "A man's home is his castle", which is where the title of this bill originally came from, refers to the man's home. But as far as this bill is concerned, a man's castle follows him wherever he goes:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be

So that's driving down the road, shopping in a mall, walking in a park, sitting in a restaurant, drinking in a bar, marching in a protest rally or observing said protest rally. And the list goes on.

Here's the conclusion of that paragraph:

...has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Reasonably believes it is necessary. Not "show proof" or "demonstrate" it is necessary. Just believing it is necessary will suffice.

And the gate swings even wider with, "to prevent the commission of a forcible felony." Let's see what falls into that category:

Forcible felony. – Treason; murder; manslaughter; rape, sexual offense, sexual battery; robbery; burglary; arson; kidnapping; aggravated assault; felonious stalking; malicious use of explosive or incendiary device; and any other felony which involves the use or threat of physical force or violence against any individual.

Treason? Did you actually type that word and not ask yourself, "Have I lost my mind or something?" Does a man's castle now encompass the entire nation? What the hell, everybody should have the legal right to use deadly force against those we "believe" are guilty of:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere

Felonious stalking? I don't really know what constitutes that, and I'm not going to look it up. I'm going to be gracious and estimate that 5% of the population understands what legally constitutes felonious stalking, and most of them are cops and lawyers. But apparently cops and lawyers aren't enough to guarantee public safety, so I'm going to have to step up. "I believe" that scruffy-looking guy following that mom and her toddler down the sidewalk is up to no good, and I'll be damned if I'm going to let him hurt those two. If he gets any closer than ten feet, it's hasta la vista, baby.

Luckily for me, if I miss and accidentally shoot the mom (or the toddler), I don't have to worry about any pesky frivolous lawsuit, because I have immunity:

A person who uses force as permitted by this section is justified in using such force and is immune from criminal prosecution and civil action for the use of such force

Senator Berger, for the most part, I am a fan. You do some good work. This is not good work, this is...well, this is some crazy shit, actually. I am at a loss. Please remember your own words when we were discussing the proper leadership for our party:

Holding positions so diametrically opposed to policies at the heart of the Democratic Party justify his rejection as Party Chair.

Comments

Amen

It's about time people recognized this type of legislation for what it is - irresponsible and childish.

I'm all for gun ownership, hunting and of course self-protection.

But lately it seems like legislators' new plan to fight crime is to arm every citizen and let them carry their guns everywhere.

Citizens are not, and should not be, law enforcement. You don't need to be a police officer to know why that's a bad idea.

Cowboys needs to stay on the silver screen.

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NCGV

There is a process whereby law abiding citizens

can be lawfully licensed to carry a concealed weapon. Unless the Sheriff who taught the course I attended misrepresented the conditions under which one could lawfully use deadly force, much of the above is simply a clarification of situations already legal but currently with some nebulous/troubling lack of detail. Without fully understanding the details of "felonious stalking" it's hard to say much without presenting the opportunity to look a fool.
So, I can't comment. OTOH, it's currently lawful to use deadly force to stop someone from entering your home but not legal once they are inside...unless some other circumstances exist...such as stopping a sexual assault, etc.

I think these laws DO require clarification and this may be a step in that direction.

Most (I'll guess 99.99%) citizens who own a firearm, including a handgun, will never commit a crime with that firearm. Just like most people who own an auto won't go out and drive drunk and hurt somebody.

So, that leaves us with criminals, a few nut-jobs, and a very few decent people who make a bad judgement call or have a bad hair day or whatever...and the actions of those people should not deprive the rest of society of their rights.

I don't consider myself as anything more than a private citizen that has the right to defend my family and their lives. I'd be hard pressed to use deadly force on someone stealing a TV. In the bigger picture, that's a nit. OTOH, if some Dumb F is breaking into my home, threatens me with a weapon, attempts to assault, or any of a host of other nasty things, then I will defend myself and my family. That ought to be legal....and the details need to be spelled out so innocent folks don't get afoul of the law for no just reason.

I think you've said some things very well....and you've also come to conclusions without knowing what you're talking about. That's not helpful...and it's the kind of stuff that makes it easy and attractive for wingnuts to attack us "libruls."

Stan Bozarth

Fixing flaws in current legislation, sure

Opening the door to armed superheroes ... that doesn't seem very wise.

If I did do this:

you've also come to conclusions without knowing what you're talking about.

that only further highlights the potential danger of this bill. That's why I kept referring to, "I believe", because these immunities are based on what is going through the mind of the individual (reasonably believe), not what the actual laws state.

You might say, "You can't expect the average layperson to be versed in criminal statute", but if they aren't, they have no business enforcing, especially with deadly force, those statutes.

Read it again, Stan. This law is extremely broad, and sets a very low bar to achieve immunity from prosecution. Which means a whole lot of other laws we rely on as a society are overwritten.

OK....I read it again.

and I agree with most of what it says. I agree with it because of my training and because I know there can be situations where the current law is vague. (Treason IS a new one on me...so no comment there!)

I could go into a long discussion about such things as your right to remove /eject someone from your property and how one must go about it to be within the law. Even not involving firearms it's a complex and difficult set of rules dealing with the escalation of force and who does what to whom when.

If YOU are a law-abiding and decent person and someone else is threatening you, your life, your property....and so on, it just might be that you won't be able to say" Oh, wait a minute before you rob/stab/rape/strangle/assault me so I can call the police and go hide in the closet....OK?" And it doesn't matter whether it's in your home or in the Walmart parking lot. The law should be CLEAR about when it is appropriate to use deadly force.

I think you overstate the situation when you say something about citizens "enforcing" these statutes. Normal people don't go around looking for a chance to shoot someone or act as an enforcement officer. Normal people do have the right to protect themselves...and they have a right to know that if they are acting rationally in self defense they won't be charged with a crime. . That seems to me to be what this is all about.

Stan Bozarth

Come on, Stan

it just might be that you won't be able to say" Oh, wait a minute before you rob/stab/rape/strangle/assault me so I can call the police and go hide in the closet....OK?"

Stop with the, "cowardly man" innuendo, okay? You like the bill, fine. But my dislike for it has nothing to do with any personal fear of either weapons or confrontation. You can take that to the bank. But you know what? The fact that you would even go down that road simply illustrates the psychology behind a great deal of the gun ownership in this country.

There was/is no innuendo and my comment had nothing to do with

"manliness" or "cowardice." I did not intend to nor did I imply anything about you or your feelings about firearms or confrontation. I did not intend to "go down that road" nor was my comment intended as personal. I might have thought it out better. I should have used "one" for "you." Sorry.

Stan Bozarth

Seems like some serious tightening is in order

As in tightening down to zero. This legislation isn't necessary. What problem is it solving?

More likely it's creating a problem.

What does soon-to-be Senate candidate Roy Cooper say about the need for this law? I don't mind walking slippery slopes, but running with scissors is kind of stupid.

PS Roy. Here's a good answer.

We already have the laws we need to protect the right to bear and use arms. You can count on me to stay focused on what matters most, not on theatrics.

I guess it's a matter of perspective, James.

I don't see anything encouraging "superheroes" and inflammatory / superfluous comments only serve to make others, who think differently, resentful. If you are an expert on the proper and lawful use of deadly force and current laws on the books, then make your case. If not. maybe you're just expressing a deeply held conviction that others don't necessarily share.

I've already said I'm not such an expert...but it also appears that what I do know implies that some clarification might be useful.

Stan Bozarth

Stan

If some Dumb F is breaking into my home, threatens me with a weapon, attempts to assault, or any of a host of other nasty things, then I will defend myself and my family. That ought to be legal.

It is legal. It's called self-defense. You're innocent until proven guilty.

What this bill does it make it so if some Dumb F looks at you the wrong way and you feel a bit frightened (or claim so) and shoot him down, the police will have a hell of a time holding you accountable for the murder.

Since my middle name is "Dumb F" this law puts my life at risk. That's how I feel about it - this law increases the likelihood that I will be shot.

This law makes it virtually impossible, in some circumstances, to prove that a murderer is guilty.

Break into other people's houses often Jerimee?

Point. You.

Swing and a miss.

I just looked you up and realized something Jerimee. When I give money to the North Carolina Democratic Party, it's apparently to pay your salary so you can attack Democrats like Senator Doug Berger on BlueNC.

Am I missing something here or does that about sum it up?

Attack?

Does voicing a thoughtful opinion about a piece of crappy legislation really qualify as an attack on its sponsor?

Seems like you're over-reacting.

No

Seems like I'm paying his salary to promote Democratic Senator Doug Berger while he criticizes Democratic Senator Doug Berger's legislation.

The NCDP doesn't need to call me any more if this is how they spend my money.

Yup!

And you can say that.

As far as I know, nobody calls me begging for money to let you trash Sen. Berger's legislation.

Jerimee is allowed to have a private life

and his own opinions. You do not get to dictate what Jerimee does on his own time and I don't give a flying fuck how much you give the NCDP.



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Vote Democratic! The ass you save may be your own.

Nope

Never even heard of him until BlueNC and the paid spokesman of the Democratic party attacked his legislation.

Chill

Seems like we run a website so you can exercise your 1st Amendment rights criticizing someone else exercising his 1st Amendment rights. There are other sponsors of this bill. Are we not to criticize any Republican bill that has even one Democratic sponsor or co-sponsor? This is not a Democratic Party blog and it's not a venue for personal vendettas. If you've got something to say about this issue, say it. If you want to get personal, you can do it at your own venue. If you've got a Democratic Party problem, take it up with the Democratic Party. There aren't many users who sink to the level of "intolerably obnoxious" and even fewer who do so as rapidly as you appear to be.

Your attack on Jerimee is resonant of the rantings of Gene Messick, whose anti-progressive diatribes have recently been filling email boxes of accounts associated with Democratic databases.

I read what you wrote

Regarding breaking into other people's houses, no obviously I don't.

I have knocked on on at least ten thousand doors in the past four years campaigning for Democratic candidates. This legislation makes that work unnecessarily more dangerous.

I read what you wrote too

Against Sen. Berger.

I read what he wrote

And he didn't say anything about Sen Berger

Would you rather that the Dem party walk in lock step

and give a wink and a nudge instead of holding our legislators responsible? Then you are in the wrong party!

No, I'm actually not

Jerimee's just in the wrong job.

What you seem to be overlooking

is that Jerimee doesn't just work for elected Democrats, he works for all members of the Democratic Party in North Carolina. Regardless of who wrote the bill, it's a bad bill, and I'm glad he's got the guts to say so.

I respectfully disagree Mr. SR

and if you had been reading BlueNC or the NCDP website or Jerimee's facebook page or his emails, you would know that Jerimee is in the exactly right job and I for one am grateful that our side has him.

Five hours

Not many new users to BlueNC can stir up a mess in only five hours. Congratulations to S. Reserve. This might be a world record.

Be nice, please. I don't want to have to come out there.

In all honesty James,

I knew this diary would stir up a shitstorm. I'm not trying to excuse anybody's behavior, I'm just saying it's not unexpected.

And I want Senator Berger to know that I am aware of the many good (and progressive) things he's done, and I'm sure we'll see more. But this thing is a mistake, and it needs to be seriously amended or put to rest.

I did too

and I'm always up for a good shitstorm. I'd just rather have it be about the substance of the legislation, not the employment of the commenters.

Berger is a good guy. He's informed, smart and capable, which is a rarity in the General Assembly, in my view. You didn't go after him in this post, you focused on the shortcomings of this "Get Out Of Jail Free" legislation.

I'd like to hear what judges and DA's have to say about what's wrong or missing in current law that warrants any new laws in this area.

This legislation would be fine...

for any homeowner who also has a moat around his/her castle.

Otherwise...it's just nuts.

We'll see

This bill is going before the Judiciary II Committee tomorrow it will be interesting to see who supports it. Particularly now that it looks the Chiefs of Police and the DA's oppose it.

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NCGV

Is the Committee

actively seeking their input, Roxane?