The Common Law “Castle Doctrine”
Within the past month, there have been several incidents in which homeowners who shot intruders were cleared of any wrongdoing, because of the “Castle Doctrine.” The Castle Doctrine is a common law rule that allows a person to use deadly force to defend an attack in or intrusion into his dwelling. (The word “castle” in the name of the doctrine is a reference to the saying “an Englishman’s home is his castle.”) In one recent case, an 18-year-old woman in Oklahoma shot an intruder because she feared for the safety of her child and herself. Similar events occurred in South Carolina and Pennsylvania.
In order to correctly comprehend the Castle Doctrine, it is necessary to understand the context in which it applies. Generally, self-defense is a justification to a charge of homicide. One who is threatened with death or serious bodily injury may use deadly force in order to defend himself. However there are various views regarding whether or not one must first attempt to retreat (if possible).
In a number of American jurisdictions, a person threatened with deadly force is not required to retreat. He or she may defend with deadly force regardless of where the attack takes place. In such states, there is no need for the Castle Doctrine, because even outside of the home there is no obligation to retreat.
However, some jurisdictions do not allow the use of deadly force in defense of an attack unless retreat is first attempted. In those states, there is usually a codification of some form of the Castle Doctrine, which sanctions the use of deadly force when defending oneself in his home, without requiring retreat. For example, in New Jersey, the law states:
[T]he use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
The use of deadly force is not justifiable . . . if . . . [t]he actor knows that he can avoid the necessity of using such force with complete safety by retreating . . . except that [t]he actor is not obliged to retreat from his dwelling, unless he was the initial aggressor.(1)
Ba BaMachteres: The Halachic Castle Doctrine?
Jewish law also has a special rule regarding self-defense in the home, but it functions differently than the Castle Doctrine.
There are two laws in the Torah that sanction the use of deadly force in defending oneself. The first is the law regarding a rodef, an assailant who is attempting to kill someone. The second is the law regarding a ba bamachteres, an intruder (literally, someone tunneling [into a house]). Just as it is necessary to understand the Castle Doctrine within the context of the general American law of self-defense, so too one must look at the Torah’s approach to a home intruder over the backdrop of the general law of rodef.
Someone pursuing another with the intent to kill is considered a rodef.(2) In order to save the victim, a bystander can and must kill the rodef. However, if it is possible to stop the pursuer by injuring him instead of killing him, the bystander may only injure, not kill, the pursuer.(3) Obviously, the victim himself may attempt to kill the rodef, but whether or not the he must first try to injure the pursuer is subject to dispute.(4)
Besides for the law of rodef, the Torah specifically discusses a case of a thief secretly entering the home of another. The Torah gives explicit permission for the homeowner to kill the intruder.(5) The Talmud explains the reason for this as follows: There is a presumption that a person will not stand idly by while someone else takes his property. Therefore, the thief knows that it is likely that the homeowner will stand up against him. If in fact the homeowner does try to defend his property, the thief intends to use even deadly force to take it. The Torah generally allows one to defend himself (or another) against a threat to his life with deadly force (cf. the law of rodef). Thus, the homeowner may kill the intruder.(6)
The question then arises: why does the Torah need to discuss the specific situation of an intruder, since it apparently is no different from the general situation of a rodef? Unlike the Castle Doctrine in American law, which provides an exception to the requirement of retreat, in Jewish law there is seemingly no need for a special rule regarding an intruder, since even outside of the home the victim need not retreat before he uses deadly force in self-defense.
According to the Divrei Yechezkel,(7) there are two fundamental differences between the law regarding a rodef and an intruder. First, killing a rodef in order to save one’s life is not only permitted, it is an obligation. However, an intruder is only expected to kill the homeowner if the he attempts to protect his possessions; if the homeowner simply hands over the property, the thief would not harm him. Thus, since the homeowner essentially has a choice––hand over the money or be threatened with death––killing the intruder is only permissible, not necessary. Second, one may only kill a rodef if he is certain that the rodef intends to kill, not if he is in doubt. In contrast, one is entitled to kill an intruder unless he is certain that the intruder will not harm him.(8)
For more on this topic, see J. David Jacobs, Privileges for the Use of Deadly Force against a Residence-Intruder: A Comparison of the Jewish Law and the United States Common Law, 63 Temp. L. Rev. 31 (1990).
(1) N.J.S.A. § 2C:3-4.
(2) Sanhedrin 73a.
(3) Sanhedrin 74a.
(4) See Mishne LaMelech, Hilchos Chovel U’Mazik 8:10 (stating that the victim need not warn the pursuer or first try to injure him); Rashi, Sanhedrin 74a, s.v. VeYachol (implying that the victim must first try to injure the rodef).
(5) Shemos [Exodus] 22:1.
(6) Sanhedrin 72a.
(8) See Sanhedrin 72a-72b.