Gun Control: Brady Misfires on Castle Doctrine

The proposed Castle Doctrine law being considered in the Texas legislature is getting the typical Brady Campaign treatment. An examination of their tactics is a good study for any state considering the law.

Brady came out against Castle Doctrine because of its impact on criminals:

“The law only changes things for the bad guy,” Mr. Ragbourn said. “The good guys already had the law on their side.”1

If Castle Doctrine “only changes things for the bad guy,” a reasonable person would support it, so why is Brady complaining? They continue with misleading partial-truths in an attempt to convince us this law is unnecessary, when Mr. Ragbourn states: “case law already allows people to defend themselves.”2

Under current law, citizens usually have the “right” to defend themselves, but that does not preclude overly-aggressive prosecution or being robbed a second time via civil suit.

After ordering a home invader–on probation from a prior offense–to leave, Michael Rainiero shot him once, wounding him. The district attorney ruled it justified self-defense, but the criminal sued him in civil court for “severe and permanent injuries, relentless pain, and loss of earning capacity.”3

When a criminal entered their place of business and threatened them with a gun, Eli Crespo and Jerry Vega attacked and disarmed him. The aggressor “pleaded guilty to first-degree robbery and was sentenced to 18 years in prison as a repeat violent felon.” That didn’t stop him from suing the store and employees, accusing them of “intentionally inflicted emotional distress.”4

The best-case scenario in the above stories is that the defender pays a large legal bill. Castle Doctrine law would protect defenders from such frivolous law suits, forcing the consequences of such action back upon the criminal:

It is an affirmative defense to a civil action for damages for personal injury or death that the defendant, at the time the cause of action arose, was justified in using force or deadly force…

A defendant who prevails in asserting the affirmative defense…may recover from the plaintiff all court costs, reasonable attorney’s fees, earned income that was lost as a result of the suit, and other reasonable expenses.5

But since Castle Doctrine changes the legal environment “for the bad guy,” Mr. Ragbourn dislikes it.

The Big Lie About Castle Doctrine

Contradicting his previous statement, Brady’s Ragbourn continues:

All that’s changed is there is now an extra defense for somebody who shoots somebody.

The castle doctrine laws are so broad…that they allow people to kill someone and then tell law enforcement they were afraid for their safety at the time.6

Not ignoring an opportunity to talk to the press, Brady’s Peter Hamm chimes in as well:

It’s not Castle Doctrine. That’s in the home and you have a right to defend the home…This is the Kingdom Doctrine and you can kill someone anywhere in public. That’s a far cry from the home.”7

The Texas legislation specifies precise criteria for justifying deadly force:

[W]hen and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other’s use or attempted use of unlawful deadly force; or

(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.8

Furthermore, such force is justified only if the aggressor :

(1) unlawfully entered, or was attempting to enter unlawfully, the actor ’s habitation, vehicle, or place of business or employment;

(2) unlawfully removed, or was attempting to remove unlawfully, the actor from the actor’s habitation, vehicle, or place of business or employment of the actor; or

(3) was committing or attempting to commit an offense described [above].9

Being “afraid for [one’s] safety” is a very vague reason for justifying deadly force, likely to entangle somebody in the criminal justice system.

Hamm states: “you have a right to defend the home.” Richard Dixon had no such right. This Navy veteran shot and wounded a “career burglar” with a “14-page rap sheet” who broke into his family’s New York City home that he worked seven days a week to pay the mortgage for. Dixon used a handgun he had legally purchased before moving to NYC, and was in the process of registering it as per NYC law. Because the gun was unlicensed, he was charged with a crime.10

Counter to our legal system’s presumption of innocence, NYC’s 1911 Sullivan Act assumes anybody with a handgun is a criminal or intends to commit a crime. As judges noted in the New York State Appeals Court in 1913:

…Legislature has now picked out one particular kind of arm, the handy, the usual, and the favorite weapon of the turbulent criminal class, and has said that in our organized communities, our cities, towns, and villages where the public peace is protected by the officers of organized government, the citizen may not have that particular kind of weapon without a permit… If he has it in his possession, he can readily stick it in his pocket when he goes abroad.11

Despite judges’ admission that the law against concealed carry “did not seem effective in preventing crimes of violence,” the court restricted civilian ownership anyway, ignoring the fact that the very features which made handguns the “favorite weapon of the turbulent criminal class” also made it the tool of choice for the law-abiding citizen seeking to protect their lives and livelihoods from this same criminal class. Instead, the court sought to reassure us (or them?) that the “public peace is protected by the officers of organized government.” This is a very curious statement, because United States higher court rulings consistently conclude the police are under no legal obligation to provide protection to any particular citizen.12

Brady gave New York a B+ in their 2005 report card, indicating support for the state’s restrictive gun laws.13 Yes, Peter, it’s not about Castle Doctrine: It’s about gun confiscation.

Mr. Hamm is long on bombast and short on scholasticism: an internet search of “Kingdom Doctrine” brought zero results.

“[Y]ou can kill someone anywhere in public.” This sounds remarkably blood-thirsty for somebody whose organization claims to promote civility. One should understand law-abiding citizens before condemning them.

Criminal firearm murders increased 13.6% between 2001 and 2005, while civilian justifiable homicides using firearms decreased 21.9%.14,15 Between 2001 and 2005, the number of states with shall-issue concealed carry laws increased from 32 to 38 while justifiable homicides using a handgun decreased 16.8%. This indicates responsible use and highlights the psychological difference between criminals and peaceable citizens.16 Who is focusing on killing here?

Mr. Hamm couldn’t resist gloating when the New York State Rifle Association campaigned for right-to-carry:

“Oh yeah, that’s going to happen when hell freezes over…”17

Considering that New York state is in the midst of record snow fall, could he be getting his wish?18

Howard Nemerov is a frequent guest on NRA News. He can be reached at HNemerov [at sign] Netvista.net.

Endnotes

[1] Brandon Formby, Bill to seek ‘castle doctrine’ crime protection, The Dallas Morning News, October 13, 2006. http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/DN-castle_13wes.ART0.North.Edition1.3e193c8.html

2 Ibid.

3 Accused Burglar Sues Homeowner Who Shot Him, Yahoo! News, September 28, 2006. http://news.yahoo.com/s/wisn/20060928/lo_wisn/9950016

4 Associated Press, Foiled burglar sues for emotional distress, Star Tribune, June 10, 2006. http://www.startribune.com/484/story/485319.html

5 H.B. 284 A BILL TO BE ENTITLED AN ACT relating to the use of force or deadly force in defense of a person, Texas Legislature, section 4, page 4. http://www.capitol.state.tx.us/tlodocs/80R/billtext/pdf/HB00284I.pdf

6 Brandon Formby, Bill to seek ‘castle doctrine’ crime protection, The Dallas Morning News, October 13, 2006.

7 Jim Vertuno, Bills filed in Austin to shoot first, retreat later in self-defense, Houston Chronicle, February 12, 2007. http://www.chron.com/disp/story.mpl/headline/metro/4547130.html

8 H.B. 284 A BILL TO BE ENTITLED AN ACT relating to the use of force or deadly force in defense of a person, Texas Legislature. http://www.capitol.state.tx.us/tlodocs/80R/billtext/pdf/HB00284I.pdf

9 Ibid.

10 Patrice O’Shaughnessy, Hero dad under the gun, New York Daily News, January 19, 2003. http://www.nydailynews.com/front/story/52803p-49473c.html

11 Darling v. Warden, 154 App. Div. 413, 139 N.Y.S. 277 (1913)http://www.guncite.com/court/state/139nys277.html

12 See examples:

DESHANEY v. WINNEBAGO CTY. SOC. SERVS. DEPT., 489 U.S. 189 (1989) http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=489&invol=189
Warren et al v. District of Columbia, 444 A.2d 1 (D.C.App. 1981)http://www.healylaw.com/cases/warren2.htm
Riss v. City of New York, 22 N.Y.2d 579 (1968) http://www.healylaw.com/cases/riss.htm

John D. Brophy, Public Safety: Fact or Fiction? August 14, 2003. http://famguardian.org/Subjects/Crime/Articles/PublicSafetyFactOrFiction.htm

13 Brady Campaign State Report Cards Show State Legislatures Are Failing to Protect Kids from the Dangers of Illegal Guns, The Brady Campaign to Prevent Gun Violence, April 2006. http://www.bradycampaign.org/bradyreport/2006/april/reportcards/ (Use drop-down list to select each state’s 2005 grade.)

14 Expanded Homicide Data Table 7: Murder Victims by Weapon, 2001-2005, Federal Bureau of Investigation. http://www.fbi.gov/ucr/05cius/offenses/expanded_information/data/shrtable_07.html

15 Expanded Homicide Data Table 14: Justifiable Homicide by Weapon, Private Citizen, 2001-2005, Federal Bureau of Investigation. http://www.fbi.gov/ucr/05cius/offenses/expanded_information/data/shrtable_14.html

16 Right-to-Carry 2007, National Rifle Association Institute for Legislative Action. http://www.nraila.org/Issues/FactSheets/Read.aspx?ID=18

17 Matthew Chayes, N.Y. Gun Enthusiasts Call for Automatic Issuing of Permits, New York Sun, September 7, 2006. http://www.nysun.com/article/39238 Page 2. http://www.nysun.com/article/39238?page_no=2

18 William Kates, More Snow Expected in Midwest, N.Y., My Way, February 13, 2007. http://apnews.myway.com/article/20070213/D8N8PUTG1.html