New Language

I can indeed find some new language in this year’s castle doctrine, as opposed to last year, but so far I don’t see anything that should give us cause to withdraw support for the bill or seriously worry ourselves:

(2.3)  An actor who is not engaged in a criminal activity, WHO IS NOT IN ILLEGAL POSSESSION OF A FIREARM and who is attacked in any place where the actor would have a duty to retreat under paragraph (2)(ii), has no duty to retreat and has the right to stand his ground and use force, including deadly force, if:

The section in all caps is new. For most of us who are carrying firearms legally, this isn’t an issue.


This is new in this section. Without context it’s hard to explain, but I will try. In last year’s bill, you could not use the presumption set fourth that deadly force is justified against someone unlawfully and forcefully entering your home if that person was a peace officer performing his official duties. In a way it’s kind of redundant, because presumably a peace officer is lawfully entering a home, and if a peace officer were unlawfully entering a home, then that wouldn’t be part of his official duties, would it? This years bill adds that same provision to anywhere you have a legal right to be. My opinion is this is a feel good provision. Obviously a peace officer who’s in the process of, say, unlawfully raping a woman, isn’t “acting in the performance of his official duties.”

(d)  Definition.–As used in this section, the term “criminal activity” means conduct which is a misdemeanor or felony, is not justifiable under this chapter and is the proximate cause of RELATED TO the confrontation between an actor and the person against whom force is used.

You can see where last year’s language was struck and replaced with the language in caps. This is probably the language being talked about by the DA’s association. My guess is they were concerned about the burden of proving proximate cause, rather than just having to prove a relationship between the crime and the need to use deadly force, which is a clearer standard. I don’t seriously object to this change.

The rest of the bill is identical to last years, including the civil immunity provisions. My feeling is the changes promoted by the DA’s association are relatively minor and are a reasonable concession if in return they drop their opposition to the bill. The DA’s association no doubt came to the table because they realized something was likely going to pass this session, and decided it was better to get some minor concessions than continuing to tilt at windmills.

That has probably been why this bill has moved so quickly and been voted on so overwhelmingly. Without the DA association’s objections to ride on, opponents of Castle Doctrine don’t have much political cover for their opposition, so they caved. I think the changes outlined were small concessions to make in order to get this bill to move quickly and get cleanly through the legislature.

12 thoughts on “New Language”

  1. My read of the bill is that you’re not immune from civil and criminal prosecution if you use deadly force against an angry mob of 10,000 unarmed attackers. Am I missing something here?

  2. So they are statutorily baking in more burden shifting (go back to my rant on this in a prior post of yours) and proximate cause qualifiers to self defense… They are whittling it down little by little.

    At least the “related to” qualifier applies solely to the relationship of the actors to each other. The big problem though is this however. There is a much mushier boundary on the “crime”.

    Lets say X gets into a fist fight with Y at a drunken super bowl party. Both are equally culpable as neither “retreats” (or in modern terms de-escalates the situation). Let’s also say X embarrasses Y by kicking his ass. Mutual combat is a crime in most places, I am sure PA is no different.

    Fast forward to August and X runs into Y on the beach. Y pulls out a knife because he is still butt hurt over the superbowl incident. X puts a two into Y’s chest.

    Under proximate cause, this is covered by the proposed law because a knife fight 6 months after drunken mischief is not a reasonably foreseen consequence. Under this new “related to” standard, this is no longer covered as the two circumstances are “related to” each other. Proximate cause is a legal abortion to begin with, but it at least forces one to show some reasonable expectation that action 1 (fight) would lead to action 2 (knife assault).

    I say this because a plain read of the term “related to” appears to justify this. “related to” is not a term of art so plain meaning guides interpretation and construction of the statute.

    YMMV. I am not a lawyer, I just get to deal with them regularly through our efforts up here in MA (

  3. Also, remember that retreat is de-escalation. But it is being treated as “retreat” more and more these days.

  4. terraformer:

    That sounds plausible to me, but even under current law, in that circumstance, because a knife is involved, the duty to retreat would generally not come into play if the guy was close enough to stab the defender. I agree the other language is better, but I’m willing to live with this to get the bill through, and through clean. We’ll see how the courts end up treating this. Even proximate cause is an uncertain standard.

  5. “Even proximate cause is an uncertain standard.”

    That’s being very charitable… :-)

  6. I guess using 10,000 in my example didn’t make it clear what I was getting at. So allow me to rephrase:

    My read of the bill is that you’re not immune from civil and criminal prosecution if you use deadly force against an angry group of 5 unarmed attackers. Am I missing something here?

  7. mike:

    You are immune from civil prosecution if you’re found to have acted in self-defense. That would mean, for instance, that Eddie DiDonato could not sue Gerald Ung under this standard. But against a group of 5 unarmed attackers, you’d still be required to retreat, provided you could do so and obtain complete safety, before resorting to deadly force.

  8. mike,

    You’re referencing 2.3 iii right?

    I think per statute you’re right, if you are outside your dwelling/car/business AND no “weapon capable of injury is presented” you are going to have to argue why you couldn’t get away, you won’t have the presumption of legality.

    I can see the DA’s being behind this so you don’t have unarmed folks stabbed or shot and self-defense claims made. Anecdotally, we get a couple of those outside bars when fights start going bad for one guy up here every year. Though usually the force user winds up being a prohibited person or in violation of either mutual combat or weapons violations regadless. But DA’s hate having to prove that.

    Read paragraph 3 though, I think it gives the “out” for that kind of situation

    (3) Except as [required by paragraphs (1) and (2) of this subsection,] otherwise required by this subsection,

    a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do or abstaining from any lawful action.

  9. I want to thank Sebastian and the rest of you who dug into the language of the bill. I’m still concerned how the Doctrine will play out in the real world. I’m still not convinced it would have spared Gerald Ung a trial. I hope it’s no sand Castle.

  10. One thing I’ve learned living up here and watching us go from no formal urban concealed carry to Shall Issue in ’94 to Constitutional Carry in ’04 is that getting a pretty good law in place and improving it as the restrictions prove unwarranted seems better, if the choice must be made, then holding out for perfect and getting nothing.

    A new “shoot-first Castle Doctrine Wild West” law is a big deal, once you get it in place, loosening amendments barely make the back page.

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