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Duty to Retreat

The York Daily Record correctly points out that this case has nothing to do with castle doctrine. The guy basically fired a shot into the air, blocked the thief from leaving with another vehicle, and held him at gun point until police arrived. He has not been (and should not be) charged.

This falls pretty squarely under prosecutorial discretion, probably significantly bolstered by the fact that the prosecution is well aware they will have a hard time finding a jury that’s going to convict this guy. In many ways, the civil immunity is the real change Castle Doctrine brings, despite the fact that it also revises the self-defense law. It’s highly unlikely that anywhere in Pennsylvania you’ll be convicted of shooting someone who has broken into your home, no matter what the law may technically say. Dave Hardy recently told of a similar situation in Arizona:

Here in AZ, with real juries, the results are quite different. A prosecutor once told me that he’d urged the County Attorney to stop prosecuting homeowners who shot burglars in the back. They’d just lost three of those cases in a row. Whatever the statute law might be, jurors saw one fewer burglar as a good thing and would not convict a fellow homeowner for having done a good thing.

Trial by jury is one of the most important legal institutions we inherited from English Law. It doesn’t really matter what the Arizona Revised Statutes or the Pennsylvania Consolidated Statutes say, if you can’t find a jury that will convict under those circumstances, the practice is, for all practical purposes, legal. Trial by jury is one of the great checks the people have on their government. Self-defense law is probably one of the areas the people differ most greatly from the officials who serve them. Castle Doctrine doesn’t do much more than bring statutory law into line with what most people think it already is, or should be. It’s not surprising, then, that the law has broad, bi-partisan support. Yet the politicians still don’t really want to vote on it, as the current debacle in the Pennsylvania Senate is showing us.

One Response to “Duty to Retreat”

  1. Laughingdog says:

    I know if I was on a jury, the only part where they’d have some luck with a guilty verdict from me is on that warning shot. Holding him at gunpoint would fit in my “yeah, it’s illegal. But against the law isn’t the same as immoral.” But a warning shot is pretty stupid and reckless.

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