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November 6, 2014 |
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Why Do You Own Or Carry A Gun? |
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Dear Members,
We want to hear your stories and your feedback, tell us: why do you own and/or carry a firearm and what do your Second Amendment rights mean to you? The more responses and feedback we receive, the better we will be able to serve you, our members. We look forward to your responses.
Sincerely,
Dave Donchecz
Vice President of Member Services
To answer Dave’s question, simply click here or the photo above and respond in the comment section. Remember, you may need to be signed into your Facebook account to share your response. If you aren’t following U.S. Law Shield on Facebook, now is a perfect time to do so, simply click the “Like” button at the top of the U.S. Law Shield page for daily content regarding gun news and law changes across the country. We appreciate that some members don’t feel comfortable posting publically that they own firearms; please feel free to still share what it is you think the Second Amendment means or is intended to do or email Dave Donchecz at dave@uslawshield.com.
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Oklahoma Gun Law: The Castle Doctrine |
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For a man’s house is his castle, and each man’s home is his safest refuge – Sir Edward Coke 1628 (Institute of the Laws of England)
Dear Members and Friends:
If you have watched the news on TV or read a newspaper, you may have heard the phrases “Castle Doctrine” and “Stand Your Ground” in reference to self-defense laws. There has been considerable debate about just what these laws are and how far they allow someone to go in protecting themselves, their homes, and their family. Unfortunately, not every news outlet or blog writer is as informed about these legal concepts as they could be.
The purpose of this article is to introduce these important legal concepts to you, and explain them clearly enough that you will be better prepared in case you ever need to protect your family, home, or self from danger.
What is the Castle Doctrine in Oklahoma?
The phrase “Castle Doctrine,” is a simple description of a complicated state law. However, the phrase is not actually found in the applicable state statutes. The concept of the Castle Doctrine comes from the philosophy that every person is the King or Queen of their home, and as such, is entitled to certain privileges that others are not. In the context of firearms self-defense law, it generally means that a person is presumed to be reasonable if they lawfully use force or deadly force against an unlawful intruder. Title 21 Oklahoma Statute §1289.25 is Oklahoma’s version of the Castle Doctrine, and the first section of the law does a good job of describing this philosophy: “The Legislature hereby recognizes that the citizens of the State of Oklahoma have a right to expect absolute safety within their own homes or places of business.”
Oklahoma’s Castle Doctrine law affords you legal protection while inside your “castle” by allowing you to use defensive force or deadly force against an unlawful intruder under certain circumstances. In effect, if you know or have reason to believe that an unlawful and forcible entry or act is occurring or had occurred, and you use force, including deadly force, when someone is in the process of unlawfully and forcefully entering or has entered a residence, occupied vehicle, dwelling, or place of business, then Oklahoma law gives you the legal presumption that the fear of imminent peril of death or great bodily harm to yourself or another was reasonable. This also applies if someone unlawfully and forcefully removes or attempts to remove you or another person against their will from a residence, occupied vehicle, dwelling, or place of business.
Note that the definitions of “dwelling,” “residence” and “vehicle” are relatively broad as they apply to the statute. A dwelling is defined as a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people. A residence is a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest. Lastly, a vehicle is a conveyance of any kind, whether or not motorized, which is designed to transport people or property. As you can see, Oklahoma’s Castle Doctrine is far-ranging, applying to everything from your family home, to a mobile home, to even a tent!
When You Are Not Covered By the Castle Doctrine
While Oklahoma’s Castle Doctrine is expansive, it is not unlimited. There are a number of situations in which you may not use deadly force against a person intruding into your residence, occupied vehicle, dwelling or places of business. These situations include when: (1) the person whom you are using defensive force against has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, and there is not a protective order from domestic violence in effect or a pretrial supervision order of no contact against that person, (2) the person(s) sought to be removed is a child or grandchild, or is otherwise in the lawful custody or guardianship of the person against whom the force is used, or (3) you are engaged in an unlawful activity or are using the dwelling, residence, occupied vehicle, or place of business to further an unlawful activity.
This means that you will not be justified in using deadly force against someone if they have the legal right to be in the vehicle or dwelling you are in, and you do not have a protective order against them. You may also not use deadly force against a parent or legal guardian attempting to remove their own child from your home. Lastly, you will not be justified in using deadly force against a person intruding into your home or place of business if it is being used as a place to conduct illegal activity, such as manufacturing drugs.
Does Oklahoma’s Castle Doctrine Law Apply To Mere Trespassers?
No. As discussed above, it is presumed that fear of imminent peril or death or great bodily harm was reasonable only if someone is in the process of unlawfully and forcefully entering or has entered a residence, occupied vehicle, dwelling, place of business, or they unlawfully and forcefully remove or attempt to remove you or another person against their will from those places.
This list excludes trespassers who merely step onto your property without permission. Further, just because an intruder unlawfully enters into your detached garage or shed, you are not necessarily free to use deadly force to get them to leave, unless the building is being used as a residence. Be sure that you do not fall victim to the common misconception that the Castle Doctrine gives you carte blanche to use deadly force against someone just because they are on your property! This could result in both criminal charges and a civil lawsuit, things you would be better off without!
You do have a legal right to exclude or remove trespassers from your land, however, you are limited to using non-deadly force to do so. Title 21 Oklahoma Statute § 643(3) states that if a person trespasses or is unlawfully interfering with your real or personal property in your lawful possession, you may use force (though not more than is sufficient) to prevent the offense. You are not justified in using deadly force in this case!
What If A Trespasser Starts Committing Other Crimes?
If a trespasser has more nefarious motives for being on your property, a mere criminal trespass or interference with your property may turn into a more serious crime where you could be justified in using deadly force to protect your premises or property. Title 21 Oklahoma Statute § 1289.25 and § 733 allow the use of deadly force against a person who goes beyond being merely present or interfering with real or personal property. Specifically, if a trespasser commits or attempts to commit the more serious crimes of robbery, burglary, or any other forcible felony (any felony which involves the use or threat of physical force or violence against any person), then the use of deadly force against that trespasser may be legally justified against that trespasser.
Once again, however, if a trespasser comes onto your property, refuses to leave, and is not committing or has not committed any of the serious crimes listed above, you are likely not justified in using deadly force to remove the trespasser from your property. You may be justified in using reasonable and appropriate physical force if the trespasser is trying to steal something or commit criminal mischief, but you may not be justified in shooting your firearm at the trespasser!
Can You Be Criminally Prosecuted Even If You Were Justified?
Title 21 Oklahoma Statute § 1289.25(F) states that a person who uses justified force or deadly force against an intruder in the circumstances above is immune from criminal prosecution and civil action for the use of such force. “Criminal prosecution” is defined broadly, including both being charged and prosecuted. This means that if your use of deadly force is justified, you cannot be charged with a crime or prosecuted for your use of force. Additionally, section (G) states that while a law enforcement agency may investigate your use of force, they may not arrest you for your use of deadly force unless they determine that there is probable cause that the use of force or deadly force was unlawful and therefore unjustified.
Remember, this immunity is not a “get out of jail free” card. If you are arrested, charged or prosecuted, you will need your attorney to assert and prove your justification. We see this situation unfold across the country, where persons acting in self-defense spend months or years in the legal system before the judge or jury ever hears or rules on their justification. Also remember, in the civil context, anybody can sue anyone for anything. It is up to you to assert and prove your defense to try to get out of the lawsuit – the courts do not automatically kick-out cases, no matter how frivolous the claims may be.
If you do happen to be sued by a trespasser who is trying to collect damages from you resulting from your use of force or deadly force while they were in the locations covered under the statute, and you are found immune from prosecution because your use of force was justified, Title 21 Oklahoma Statute § 1289.25(H) allows you to recover reasonable attorney fees, court costs, compensation for any loss of income, and all expenses incurred by your defense of the suit from the other party.
Oklahoma’s Stand Your Ground Law
Unlike many states, the phrase “Stand Your Ground” is found in Oklahoma statutory law. Oklahoma law tells us that there is no duty to retreat if faced with a situation where you have to use force or deadly force to protect yourself or another. Even if by retreating you could avoid the entire confrontation, you are not required to do so under the law. Title 21 Oklahoma Statute § 1289.25(D) states that in defending yourself or another person, you have no duty to retreat and have the right to stand your ground and meet force with force or deadly force if: (1) you are not engaged in an unlawful activity, (2) you are in a place where you have a legal right to be, and (3) you have a reasonable belief that force or deadly force is necessary to prevent death or great bodily harm or to prevent the commission of a forcible felony.
Although this statute is classified as a “Stand Your Ground” law, it is better understood as a “No Duty to Retreat” law. Under these very limited circumstances, a prosecutor or law enforcement officer cannot argue that you had a reasonable escape route or that you should have had to fall back before justifiably using force or deadly force. If you are facing a criminal charge, qualifying under this statute could mean the difference between a conviction or not!
Use of Force or Deadly Force and The Duty to Retreat
There are many situations in which you might need to use force or deadly force against another person. Title 21 Oklahoma Statute § 643 lays out the situations in which a person can use force against another. You are legally justified in using force against an individual when: (1) you or another person is about to be injured by that individual, (2) you are preventing or attempting to prevent an offense by the individual against another person, or (3) the force is committed against a person trespassing or engaging in unlawful interference with real or personal property in your or another person’s lawful possession.
You are justified in using deadly force against another person only if: (1) you reasonably believe such force is necessary to prevent death or great bodily harm, (2) you know or have reason to know that the person is in the process of or has unlawfully and forcefully entered a dwelling, residence, place of business, or occupied vehicle (under the Castle Doctrine above), (3) they have, or are attempting to unlawfully and forcefully remove you or another against their will from a dwelling, residence, place of business or occupied vehicle, or (4) you have reasonable belief that deadly force is necessary to protect yourself or another person from the commission of a forcible felony. You may ask yourself, "What exactly is a forcible felony?" A forcible felony is defined as any felony which involves the use or threat of physical force or violence against any person. The courts have treated home invasion robbery, burglary, carjacking, and murder all as forcible felonies; unfortunately, however, there is no definitive list in the Oklahoma statutes of what crimes are or aren't forcible felonies in Oklahoma.
Meeting one or more of the above conditions may give you a legal justification for the use of force or deadly force, but this does not necessarily mean that you are may take advantage of “No Duty to Retreat” protection! This protection exists under Title 21 Oklahoma Statute § 1289.25(D) only if you meet all three parts of the statute – not being engaged in unlawful activity, being in a place where you have a legal right to be, and having a reasonable belief that force or deadly force is necessary to prevent death or great bodily harm or to prevent the commission of a forcible felony. For example, suppose a person is illegally buying drugs and uses deadly force to protect himself from an attempted robbery. The person may be justified in using deadly force, because they had a reasonable belief that deadly force was necessary to protect against the commission of a forcible felony, (the robbery). However, because they were engaged in criminal activity at the time, they could not take advantage of the “No Duty to Retreat” protection.
An important restriction is that you may only use a degree of force that is sufficient to prevent one of the offenses above. As an example, suppose that you are at baseball game, enjoying a nice day out at the ballpark with your family, when an intoxicated fan, angry at the fact that his team just got scored against, begins yelling obscenities from his seat behind you. When you turn around and politely ask the man to stop cursing, he gets belligerent, starts threatening to “whoop” you, and pulls back his fist as if to cold-cock you. In this case, you may be legally justified in using physical force against the man, but you would most likely not be justified in pulling out a firearm and taking a shot at him barring other circumstances.
In a different scenario, suppose that you are in a convenience store buying a soda late at night. A masked man wielding a sawed-off shotgun kicks open the door of the store, fires a shot at the clerk, and points his shotgun at you as if to shoot you. In this case, you would probably be justified in using deadly force against the criminal for two reasons. You would undoubtedly have both a reasonable belief that deadly force was necessary to prevent death or great bodily harm, and a reasonable belief that deadly force is necessary to protect yourself from the commission of a forcible felony, in this case murder.
Conclusion
As you can see, the Oklahoma versions of the "Castle Doctrine" and "Stand Your Ground" laws are extremely complex and cannot be summarized with simple catch phrases. These topics consume thousands of pages of legal treatises and continue to be a huge part of many lawyers' careers, so obviously this article is only a brief overview. We hope, however, that this newsletter provides you with a better understanding of both of these legal topics. If you have any questions about these or other Oklahoma firearms laws, please do not hesitate to contact us, and we will be happy to help.
DISCLAIMER
Members and friends please keep in mind that each circumstance may be different and although this is a general discussion of the law, it should not be considered legal advice for you or any other situation. If you have any legal questions make sure you contact a licensed lawyer, or, members better yet, if you have a question we can get you in contact with one of our independent firearms program attorneys who will be happy to answer your firearms questions.
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Featured Seminars: Members, Join Us and Bring a Friend |
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U.S. Law Shield is proud to host informative Gun Law Seminars and Workshops all over the State of Oklahoma. Come join us as our independent program attorneys and firearms experts separate legal fact from fiction.
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OKLAHOMA CITY
Big Boy's Guns & Ammo
Tuesday, November 11, 2014
7 p.m. to 9:30 p.m.
Cost: $5 Members, $10 Non-Members
Sign up here!
WEATHERFORD
Defensive Training Center
Thursday, November 13, 2014
7 p.m. to 9:30 p.m.
Cost: $5 Members, $10 Non-Members
Sign up here!
FORT GIBSON
American Legion Post 20
sponsored by Gold Wing Road Riders Association
Thursday, November 20, 2014
7 p.m. to 9:30 p.m.
Cost: $5 Members, $10 Non-Members
Sign up here!
MOORE
SOR Training Center
Thursday, December 4, 2014
7 p.m. to 9:30 p.m.
Cost: $5 Members, $10 Non-Members
Sign up here!
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To view a complete list of seminars and workshops in your area, please go to www.GunLawSeminar.com. We hope to see you at one of our next events!
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