Australia vs. the USA; A Castle Doctrine Roundtable

According to a report in the International Business Times, a young dad in Australia has been charged with murder after he confronted an intruder inside his home. The father, Benjamin Batterham, 33, discovered convicted rapist Ricky Slater, 34, near his daughter’s room inside their family home in Newcastle, New South Wales, at 3.30 a.m., IBT reported.

Batterham, along with a 32-year-old friend, confronted Slater, and the resulting skirmish sent Slater to the hospital where he later died of his injuries, believed to include brain damage.

After Slater was taken off life support and subsequently died, Batterham handed himself in at a police station and was charged with murder.

U.S. residents should consider the Batterham matter as a cautionary tale about a place in which castle doctrines have been abandoned. Several politicians have made statements that they would like the U.S. to become more like Australia in terms of gun-law restrictions and change how deadly force can be used to resist robbery, assault, and other crimes.

We at U.S. Law Shield gathered a roundtable of attorneys from across the country to weigh in on how this fact scenario would play out in their respective states.

— Texas —

Michele Byington, an attorney in Texas, said that, “Based on the reported facts, in Texas, not only could that man be justified, but he would be presumed reasonable under multiple theories of law. He could have shot the man for breaking in and been presumed reasonable, he could have shot the man for attempting to rape his daughter and been presumed reasonable, he even could have shot the man for attempting to enter the home. I doubt that case would even make it past the grand jury here.”

— Florida —

According to U.S. Law Shield of Florida’s Independent Program Attorney, David S. Katz, under Florida’s Castle doctrine when an individual, such as the father in this example, knows or has reason to believe that a person has unlawfully and forcibly entered their home, they are entitled to 2 presumptions: 1) The person who uses defensive force was in fear of death or great bodily harm, and 2) the intruder was there for bad purposes (to do illegal things).  With those two presumptions on his side, this father would have been well within his rights to use all force necessary (including deadly force) to protect his family.  Under the facts as presented, Florida’s Castle Doctrine, Stand your Ground, and Immunity Laws would all work in the father’s favor.   It is unlikely this father would have been arrested or prosecuted, but if prosecution was begun, it is likely the father would prevail during an Immunity hearing and the case would be over.

— Oklahoma —

Under Oklahoma Law, the Castle Doctrine will protect the homeowner:

The occupier/homeowner, in Oklahoma, may use deadly force to defend against an intruder and is given a presumption, by the Castle Doctrine, that the homeowner/occupant was in imminent fear of death or had a fear of suffering imminent grievous bodily injury from the intruder.

When the occupant of the house discovered the intruder inside the home at three a.m., it does not matter where in the house the discovery was made.  Thus, the occupant may use deadly force inside the home against an intruder. It won’t matter if the intruder was in the kitchen, or next to a bedroom door, inside a closet or hanging from the bathroom ceiling.  In the present example, the confrontation between the occupier of the house and the intruder led to the death of the home invader/ burglar/ intruder and the hallway location near the daughter’s room was immaterial.

The presumption of imminent fear of death or great bodily injury, according to the Castle Doctrine allows the homeowner to use any force including deadly force to protect himself.  In this case, the intruder did not interact with the sleeping daughter and the rapist / felony status of the intruder was not a factor either for or against the homeowner who acted to protect himself from the intruder.

The fact that the fight started and developed into a deadly force confrontation, leading to the death of the intruder is a factor, but not a prejudicial factor to be considered; because, the homeowner could have initiated the use of deadly force by using a gun, knife, blunt object or his bare hands.

In conclusion: the homeowner may use deadly force against a home intruder so long as the homeowner is not engaged in criminal conduct. As long as the evidence supports the home owner’s story of legal force used to defend against a home intruder, the above story will have a happy ending for the home owner; but not so happy of an ending for the home intruder.

— Virginia —

Based on the facts presented, in Virginia, the right to self-defense is based on the law of necessity, which states in part that any force used must be proportional. Virginia is a stand your ground state; however, it neither has a castle doctrine nor is there a presumption of reasonableness. The father would have a right to stand his ground and defend himself and his daughter, but he would likely have a hard time justifying the use of deadly force. Deadly force would only be justified if he reasonably feared that he (or is daughter) was in imminent danger of being killed or in imminent danger of great bodily harm; and that he used no more force than was reasonably necessary to protect himself and his daughter from the perceived harm.

— Georgia —

According to Georgia attorney Matthew Kilgo, in such a situation Georgia may justify the father’s use of deadly force.  “Regardless of the intruder’s background, if the intruder was not a member of the household and our hero reasonably believed the intruder unlawfully and forcibly entered his home, simply entering the home could be enough: as the king of his ‘castle’, the father could use deadly force to protect his castle from intruders.  If the father reasonably believed the intruder was there to commit a felony, deadly force may be justified; and our hero could always use deadly force to protect his daughter against a forcible felony such as rape.  If used in any of these scenarios, Georgia law would not only justify the use of deadly force, but – if the use of deadly force was reasonable – would provide the father immunity from prosecution.”

— Pennsylvania —

Pennsylvania Attorney Justin McShane stated that:

Pennsylvania law and Australian law differ in major ways. We have the Castle Doctrine. The Castle Doctrine applies not only to the inside space of the home or dwelling (a dwelling is “any building or structure, including any attached porch, deck or patio, though moveable or temporary, or a portion thereof, which is for the time being the home or place of lodging of the actor”), but also covers someone in their car, at work (as long as the object of the force is not a co-worker) and even against those attempting to enter the dwelling. First, if you’re not the initial aggressor, there is NO duty to retreat in those situations. The protections afforded by Pennsylvania’s Castle Doctrine through presumptions are set forth in PA ST 18 Pa.C.S. § 505(b)(2.1). Please look at it for all of the details.

When you are in these locations, and certain circumstances are present, there is a presumption that you have a reasonable belief that deadly force is necessary to protect yourself against death, serious bodily injury, kidnapping, or sexual intercourse by force. As you may recall, that is the very definition of when deadly force is permitted. Therefore, under the following scenarios, the law will presume that use of deadly force was reasonable: (1) Somebody is in the process of unlawfully and forcefully entering your dwelling, residence or car (provided you’re in the car); (2) Somebody has unlawfully and forcefully entered your dwelling, residence or car (provided you’re in the car); or (3) Somebody is or is attempting to unlawfully and forcefully remove you or somebody else —against the will of the individual being removed— from your dwelling, residence or car (If they’re removing you or trying to, it’s safe to say you’re in the car).

Again this is just a presumption of reasonableness and is not an absolute. The fastest way to destroy your presumption of reasonableness is by giving a statement. Another way is if your friend or family member who witnesses or hears some of the events gives a statement. So it is always best to “Lawyer Up and Shut Up.”

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