Election Day! Who knows what’s going to happen tonight and the next few days. Understand your state’s “Stand Your Ground” law, if it has one. And if not, understand what the self defense laws are in your state. As of January 1, 2020, 34 states have stand-your-ground laws or have expanded castle doctrine to apply beyond the home. Eight states have expanded castle doctrine to motor vehicles or the workplace.

“There is nothing so likely to produce peace as to be well prepared to meet an enemy.”

 – George Washington

“The right of self-defense never ceases. It is among the most sacred, and alike necessary to nations and to individuals.”

 – James Monroe, Second annual message to Congress, November 16, 1818

“Our nation was built and civilized by men and women who used guns in self-defense and in pursuit of peace. One wonders indeed, if the rising crime rate, isn’t due as much as anything to the criminal’s instinctive knowledge that the average victim no longer has means of self-protection.”

 – Ronald Reagan

The criminal does not expect his prey to fight back. May he never choose you, but, if he does, surprise him.

 – Jeff Cooper

“Though violence is not lawful, when it is offered in self-defense or for the defense of the defenseless, it is an act of bravery far better than cowardly submission.”

 – Mahatma Gandhi

CASTLE DOCTRINE

Standard castle doctrine states that a person in his or her own home does not have a duty to retreat prior to using force, including deadly force, in self-defense.

‘STAND YOUR GROUND’ LAW

A stand-your-ground law varies by state, and generally provides that people may use deadly force when they reasonably believe it to be necessary to defend against a threat of death, serious bodily harm, and other serious crimes, differing slightly between states, without there being a duty to retreat before using such deadly force in self-defense. 

It is generally required that the individual who is standing his ground be in a place where he or she is lawfully present. Stand-your-ground laws generally cannot be invoked by someone who is the initial aggressor, or who is otherwise engaged in criminal activity. The exact details vary by jurisdiction.

YE OLD DUTY TO RETREAT

The alternative to stand your ground is “duty to retreat.” In states that implement a duty to retreat, even a person who is unlawfully attacked (or who is defending someone who is unlawfully attacked) may not use deadly force if it is possible to instead avoid the danger with complete safety by retreating.

Even duty-to-retreat states generally follow the “castle doctrine,” under which people have no duty to retreat when they are attacked in their homes, or (in some states) in their vehicles or workplaces.

BREAKDOWN OF STATES

Laws in at least 25 states allow that there is no duty to retreat an attacker in any place in which one is lawfully present.  

(Alabama, Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah and West Virginia.)  

At least ten of those states include language stating one may “stand his or her ground.”  (Alabama, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Oklahoma, Pennsylvania and South Carolina.)

Pennsylvania’s law, amended in 2011, distinguishes use of deadly force outside one’s home or vehicle.  It provides that in such locations one cannot use deadly force unless he has reasonable belief of imminent death or injury, and either he or she cannot retreat in safety or the attacker displays or uses a lethal weapon. 

Idaho’s law, passed in 2018, expanded the definition of justifiable homicide to include not only defending one’s home against an intruder, but also defending one’s place of employment or an occupied vehicle.

Self-defense laws in at least 23 states (Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, Montana, New Hampshire, North Carolina, North Dakota, Oklahoma, Ohio, Pennsylvania, South Carolina, Tennessee West Virginia and Wisconsin) provide civil immunity under certain self- defense circumstances.

Statutes in at least six states (Hawaii, Missouri, Nebraska, New Jersey, North Dakota and Tennessee) assert that civil remedies are unaffected by criminal provisions of self-defense law.

*In 2018, the Ohio House and Senate voted to override the Governor’s veto of House Bill 228. The bill places the burden of disproving a self-defense claim on the prosecution.

WEST VIRGINIA, SPECIFICALLY: 

West Virginia is a “stand your ground state,” and does not require a person to retreat before using force, including deadly force: 

(a) A lawful occupant within a home or other place of residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the home or residence or to terminate the intruder’s or attacker’s unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary. 

(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder or attacker in the circumstances described in subsection (a) of this section. 

(c) A person not engaged in unlawful activity who is attacked in any place he or she has a legal right to be outside of his or her home or residence may use reasonable and proportionate force against an intruder or attacker: Provided, That such person may use deadly force against an intruder or attacker in a place that is not his or her residence without a duty to retreat if the person reasonably believes that he or she or another is in imminent danger of death or serious bodily harm from which he or she or another can only be saved by the use of deadly force against the intruder or attacker. 

(d) The justified use of reasonable and proportionate force under this section shall constitute a full and complete defense to any civil action brought by an intruder or attacker against a person using such force. 

W. Va. Code § 55-7-22(a)-(d). 

WV EXCEPTIONS:

Of course, there are exceptions. The absolute immunity afforded by Section 55-7-22 does not apply in the following circumstances: 

– The person who would invoke Section 55-7-22 was attempting to commit, committing, or escaping from the commission of a felony; 

– The person initially provoked the use of force against himself, herself, or another with the intent to use such force as an excuse to inflict bodily harm upon the assailant; 

– Otherwise initially provokes the use of force against himself, herself, or another, unless the individual withdraws from the physical contact and clearly indicates to the assailant the desire to withdraw, but the assailant continues to use force. 

W. Va. Code § 55-7-22(e)(1)-(3). Case law considering Section 55-7-22 is sparse. See State v. Samuel (No. 13-0273, Mem. Dec.) (Nov. 8, 2013); United States v. Matheny (No. 2:12-CR-00068, S.D. W. Va., May 8, 2012). 

STILL NO BOOBY TRAPS:

Nothing in Section 55-7-22, however, permits the creation of a hazardous condition on or in real or personal property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct (e.g., spring-loaded shotguns). Nor does Section 55-7-22 authorize or justify a person to resist or obstruct a law-enforcement officer acting in the course of his or her duty. W. Va. Code § 55-7-22(g). 

INFORMATION ON THE LEMASTER CASE I DISCUSSED:

Forget what you heard: the reality of the law of self-defense with a firearm in West Virginia. What does “castle doctrine” or “stand your ground” actually mean in WV?