"A Solution to A Problem That Doesn't Exist"

Why prosecutors oppose 'castle doctrine' legislation

The Pennsylvania Law Weekly
December 14, 2010

The Pennsylvania General Assembly passed House Bill 1926, which included a 'castle doctrine' provision. Support for the bill was overwhelming. It passed the state Senate, 45-4, in October and the state House of Representatives, 161-35, in early November.

Pennsylvania legislators were certainly not the only lawmakers to move in the direction of providing greater rights to defend a home, car or person. Pennsylvania's bill was similar in many respects to the 31 states with some form of a castle doctrine, "stand your ground," or "make my day" law.

The bill started out with an obligatory preamble found in similar legislation in other states:

• It is proper for law-abiding people to protect themselves, without fear of prosecution or civil liability.

• The measure is a common law doctrine of ancient origins that declares a home is a person's castle.

• The state Constitution provides the "right of the citizens to bear arms in defense of themselves and the state shall not be questioned."

The measure established that a person shall not be required to retreat in the face of intrusion or attack outside the person's home or vehicle. It further established that a person is presumed to have a reasonable belief that deadly force is immediately necessary to protect himself, or other innocent persons, from the threat of death, serious bodily injury, kidnapping or rape.

The state Senate did something a bit unusual when it passed its version of the Castle Doctrine, however.

Originally known as HB 40, the Senate turned the castle doctrine into an amendment to another piece of legislation, HB 1926. The Senate combined the castle doctrine with legislation intended to close a loophole in Megan's Law. Sex offenders with lifetime registration responsibility for crimes in other states are required to notify authorities in Pennsylvania when they move into the state. However, there is no penalty if the sex offender does not register.

Why did the Senate combine the two pieces of legislation?

Some might suggest that the castle doctrine may have been a little more palatable with the sex offenders legislation attached. More simply, some thought Gov. Edward G. Rendell may have been less likely to veto a bill that included legislation he supported, closing the Megan's Law loophole.

Nonetheless, Rendell vetoed the castle doctrine and the Megan's Law amendment went down with it. And the governor did not mince words when he explained his rationale.

"The bill as passed encourages the use of deadly force, even when safe retreat is available, and advances a 'shoot first, ask questions later' mentality," Rendell said in his veto statement. "I do not believe that in a civilized society we should encourage violent and deadly confrontation when the victim can safely protect themselves."

In spite of the legislature's overwhelming support for the bill, it wasn't without opponents.

The Pennsylvania District Attorneys Association, the Pennsylvania State Police and a number of mayors and police chiefs opposed the bill.

"Pennsylvania already has a strong castle doctrine," Dauphin County District Attorney Edward M. Marsico Jr., president of the District Attorneys Association, told The Philadelphia Inquirer . "Citizens already possess the right to defend themselves in their homes."

In fact, Rendell, a Democrat, said in his veto statement that he sought the input of Marsico, a Republican.

Rendell said Marsico "told me that 'this bill is proposing a solution to a problem that doesn't exist' and that, if approved, it would create 'great opportunities for defense lawyers of violent criminals.' I agree."

So, why were Rendell, a former prosecutor, the state's district attorneys association, and prosecutors around the country opposed to the castle doctrine or similar self-defense legislation?

Prosecutors were concerned that the law would be used by criminals to attempt to justify violent criminal conduct. And, in some states, the concerns of prosecutors have been realized.

In Ohio, where prosecutors opposed the castle doctrine, Pike County Prosecutor Rob Junk recently told The Columbus Dispatch newspaper, "It was not made to protect drug dealers from drug dealers, but that's how it's being used."

In Pike County, a man who was robbed by a drug dealer was later shot and killed after he broke a window in an attempt to enter the car of the thief. Defense attorneys contended that the man acted lawfully. A jury convicted the thief-turned-killer of reckless homicide rather than murder.

In Franklin County, Ohio, a man fatally stabbed an acquaintance that pushed his way into the defendant's home during an argument. His attorneys said the law granted him an absolute right to defend himself with deadly force. According to the Dispatch , the prosecution countered that the law "is not a license to commit murder."

In Texas, a jury acquitted Jose Gonzalez of murder. According to the Associated Press, Gonzalez had endured several break-ins at his trailer when four boys, ranging in age from 11—15, broke into the mobile home. Gonzalez went into the trailer and confronted the boys with a 16-gauge shotgun.

Both sides agreed about what happened next. Gonzalez forced the boys, who were unarmed, to their knees. They were begging for forgiveness when Gonzalez hit them with the barrel of the shotgun and kicked them repeatedly. Then one boy was shot in the back at close range. Two mashed Twinkies and some cookies were stuffed in the pockets of his shorts.

In Houston, this past summer, Joe Horn was cleared by a grand jury for killing two men he suspected of burglarizing his neighbor's home. According to the Associated Press, Horn called 911 and told the dispatcher he had a shotgun and was going to kill them. The dispatcher pleaded with him not to go outside, but Horn confronted the men with a 12-gauge shotgun and shot both in the back.

In Montana, prosecutors decided not to file charges in a case where two men got into an argument over an extended break while working at Wal-Mart. According to The Billings Gazette newspaper, Craig Schmidt was punched and shoved by Danny Lira. Schmidt apparently feared another blow could cause serious injury or kill him. He pulled out a pistol and shot Lira.

A bullet struck Lira in the forehead, but did not penetrate his skull.

"At the point he decided to draw his gun, Mr. Schmidt could retreat no further," District Attorney Dennis Paxinos told the Gazette . "He was almost on his back with his feet off the ground, and he believed he would be severely beaten."

Last month, a Cascade County, Montana, man was free after a jury could not decide on a verdict. Clay Dunbar allegedly shot through his front door and killed a former Montana state champion wrestler.

Dunbar claimed he had the right to protect himself pursuant to Montana's castle doctrine.

According to the Missoulian newspaper, after six days of testimony and almost two days of deliberations, the jury was split 7-5. The judge asked the jury if more time would bring about any consensus, but jury insisted they had reached an impasse.

Rendell's veto does not end the issue in Pennsylvania.

State Rep. Scott Perry, R-York, said there are already plans to re-introduce a castle doctrine measure during the next legislative session.

"Almost immediately it will be re-introduced," he told The York Dispatch newspaper. "We did a lot of work on it to get it to what we thought was perfect. We don't see any reason to change it at this time."