Right: Bradley Soper, who died after an alleged home invasion during which he was confronted by a home owner in Harrington Park, Queensland. Detective Chief Inspector Shane Woolbank commented to reporters that "generally people are entitled to their home and they're entitled to use reasonable force to protect themselves and their property".
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Arguments opposed to reducing restrictions on the use of force against home intruders
1. Castle law increases the danger associated with home invasions and lifts homicide rates
Critics of castle law argue that it puts homeowners and residents at greater risk and does not act as a deterrent to reduce the likelihood of these offences. Allowing lethal force increases the likelihood of fatal outcomes for both intruders and homeowners. Critics contend that situations may escalate quickly, resulting in unintended deaths that could have been avoided with less lethal means of defence.
It has been suggested that one response to castle law could be that burglars will become more heavily armed and home invaders more violent to counter possible pre-emptive attacks from homeowners and occupants. A 2013 study found that after castle law legislation was passed in Arizona in 2006 there was an increase in armed robbery.
This result was immediate and suggested to the researchers that burglars may have switched from unarmed to armed robbery as a response to castle law.The general advice of government victim support agencies and the police is not to attack a burglar or home invader. The Victorian Government's Victims of Crime advice site recommends, 'The most important thing is to try to ensure your safety and that of anyone else in the house. If you believe an intruder is on your property or if anyone is in immediate danger leave or find a safe place to hide, if possible. Call police...'
Victoria Police offer detailed advice which involves victims of a home robbery remaining passive and co-operative to minimise their risk of injury. The police advise 'Remain calm. Activate an alarm, if safe to do so. Do exactly what the offender says, do not give them any items they did not ask for. Tell the offender before you move, so they aren't surprised. Where possible, keep your distance from the offender. Speak only when spoken to. Avoid eye contact. Make sure the offender can see your hands.' This non-provocative behaviour is intended to minimise the likelihood of being harmed. Professional home security companies generally offer similar advice. Security.org's website advises, 'Don't try to overpower them...You don't know what weapons they might have on them, what training level they might have, or what they intend to do. You can be sure that any type of threat will almost certainly cause the situation to escalate.' Data gathered in Australian jurisdictions suggest that where residents attempt to defend their homes their likelihood of being attacked by an intruder is greater. In a 1989 study conducted by the Australian Institute of Criminology it was found that in 75.5 percent of robberies, victims did as they were told. Where victims did not do as they were told, the most common response was for burglars to physically attack the victim, with two robberies ending in death resulting from use of a weapon.
In more recent United States studies in jurisdictions that have introduced castle law, there was found to be a significant increase in homicides, though the data did not discriminate between the deaths of burgled residents and the deaths of intruders. A 2013 United States study found that in states where castle law had been implemented there was an 8 percent increase in murder and non-negligent manslaughter. The study's researchers concluded, 'The laws induce an additional 500 to 700 homicides per year across the 23 states in our sample that enacted castle doctrine laws.'
One of the most recent United States studies of the impact of 'stand your ground' legislation or castle law arrived at similar findings. Published in 2022, it concluded, 'This cohort study found that the staggered adoption of SYG (stand your ground) laws in US states was associated with increases in homicide and firearm homicide rates across the US. These increases reach 10 percent and higher in several Southern states, while no states had significant reductions in violent deaths, as advocates often argue when justifying these laws. The accumulation of evidence established in this, and other studies point to harmful outcomes associated with SYG laws. Despite this, SYG laws have now been enacted in most states, and the uptake of new SYG bills continues to be popular, unnecessarily risking lives.' Finally, studies have claimed that the introduction of castle law does not deter armed burglars from committing these crimes. A 2012 United States study specifically researched this question. The researchers concluded, 'Results indicate that the prospect of facing additional self-defence does not deter crime. Specifically, we find no evidence of deterrence effects on burglary, robbery, or aggravated assault.'
The Houston findings that castle law deterred residential burglaries has been queried because the effect appeared to be dependent on a follow-up high profile case of two burglars being fatally shot. The same effect was not observed in other Texas cities. 2. Castle law leads to mistaken, ill-judged shootings and innocent casualties
Opponents of castle law claim that it has dangerous and unintended consequences, leading to the shooting of innocent people who were not burglars or home invaders. In high-stress situations, homeowners or occupants may misjudge threats or mistakenly identify innocent individuals as intruders, leading to tragic consequences. Critics argue that the use of lethal force in home defence increases the risk of such mistakes. It is also claimed that many of those claiming the right to use lethal force in self-defence may be unstable and have perceptions of threat that are based on prejudice.
As castle law spread to 45 American states, there have been increasing reports of innocent people being shot innocuous activities. In April 2023, a 20-year-old woman was shot and killed as a passenger in a car which accidentally pulled into the wrong driveway of a house in Hebron, New York.
This incident occurred only days after a 16-year-old African American boy in Kansas City was shot twice in the head by a white homeowner after going to the wrong address to pick up his siblings. Also in the same month, an 18-year-old cheerleader from Elgin, Texas, was shot in the back and subsequently had her spleen removed after one of her friends accidentally tried to enter the wrong car. As the group of girls drove away, the owner of the other car fired into their vehicle. (Under United States law, castle law is often extended to include defence of a person's vehicle.) In September 2022, a 19-year-old Tampa University student was fatally shot when he mistakenly opened the rear door of a car he believed was his Uber ride. Robert Spitzer, professor emeritus of political science at State University of New York, Cortland, has warned of the dangers he believes are created by castle law. Professor Spitzer has stated, 'It means more civilians owning guns and more civilians carrying guns with them around in society...Civilians lack the training, skill, judgment and therefore the likelihood of mistakes or the likelihood of road rage or the likelihood of spontaneous anger resulting in the deployment and firing of a gun by a person carrying it are much greater and the murder statistics bear that out.' United States data suggests that castle law and 'stand your ground' laws encourage gun owners with prejudiced, negative perceptions of young people and/or racial minorities to act on the mistaken belief they pose a threat and kill or injure members of these groups. In December 2019, the peer-reviewed journal Injury Prevention published an analysis of CDC mortality data treating gun-related homicides of Florida adolescents aged 15 to 19 years from 1999 to 2017. The study found a 45 percent increase in gun-related homicides of adolescents in this age group in Florida after the Stand Your Ground law was passed in October 2005. The increase in the rate of homicides of Black adolescents was even greater; there were 52 percent more homicides of Black adolescents reported in the period following the Stand Your Ground law passage compared to before the law.
United States studies have shown that not only has castle law resulted in the deaths or serious injury of innocent people, drawn disproportionately from minority groups, but it has also encouraged people with histories of mental instability, drug addiction and criminal behaviour to take dangerous and ill-judged actions that they then claim were self-defence. A study of Florida's castle and 'stand your ground' laws through 2014 found that the laws' chief beneficiaries were 'those with records of crime and violence'. Nearly 60 percent of those making self-defence claims when a person was killed had been arrested at least once before, one-third had been accused of violent crimes or drug offenses in the past, and over one-third had illegally carried guns in the past or had threatened others with guns. In 79 percent, the assailant could have retreated to avoid the confrontation. In 70 percent of the cases, the person killed was unarmed.
Australian critics of castle law are concerned that such provisions could also see innocent people being mistakenly shot in the name of self-defence. Queensland Law Society president Rebecca Fogerty has stated, 'The proposed legislation...is drafted in exceptionally broad terms, which mean that there is no requirement for there to objectively be a risk. That's a circumstance that's going to create all sort of serious situations where people who are entirely innocent could be killed, and then there's no recourse for the community. There's no recourse for a senseless loss of life, and that's not an acceptable outcome.'
Fogerty further stated, 'KAP's (Katter Australia Party) proposal removes the need to use reasonable force, meaning any person could legally kill another person for being on their property or damaging their property - any time another person feels under threat. This could result in tragic consequences; for instance, if two teenagers ran to their neighbours' house to escape domestic violence, they could be met with unaccountable gunfire.' 3. Castle law undermines the principles of proportionate response and reasonable force in self defence
Critics of castle doctrine and 'stand your ground' laws argue that these provisions encourage excessive responses from people who perceive they are being attacked. Castle law can weaken the principle of proportionality in self-defence. Proportionality in this context refers to the idea that the level of force used in self-defence should be commensurate to the threat faced. This principle is crucial in legal systems to ensure that self-defence does not escalate into unnecessary harm or death.
Opponents of castle law argue that proportionality or 'reasonable force' is a fundamental safeguard required to ensure that a person who believes he or she is under attack does not respond excessively. Proportionality means that an act of self-defence in response to an apparent threat must reflect the severity of the threat itself. The force used in self-defence must be in proportion to the hazard being faced. For instance, using a weapon, such as a gun or a knife, against an unarmed assailant might be considered excessive or disproportionate.
The principle of proportionality allows anyone acting in self-defence to use only the level of force necessary to defend themselves. Opponents of castle law and 'stand your ground' provisions argue that these principles are being used to justify unnecessary force, up to lethal force, by people claiming they were acting in self-defence, without regard for the extent of the threat.Critics claim that these new castle laws or 'stand your ground' laws have distorted the notion of self-defence to the point where it is possible to be excused for actions that would previously have been regarded as crimes. Every Town for Gun Safety, a United States lobby group seeking to reduce the country's reliance on firearms, has stated, 'Stand Your Ground laws upend centuries of traditional self-defence doctrine and threaten public safety by encouraging armed vigilantism, allowing a person to kill another person...even when they can clearly and safely walk away from the danger.'
Brady, a United States lobby group against gun violence, has similarly stated, 'Stand Your Ground laws have fundamentally dismantled the standards for justifiable and proportional self-defence. They allow anyone who believes their life to be in danger to use lethal force on any perceived threat and completely remove the duty to retreat in a public space.' Studies have demonstrated that castle law and 'stand your ground' provisions have been successfully used by defendants in the United States to avoid charges or convictions for murder and manslaughter. The Tampa Bay Times examined the effects of Florida's 2005 stand your ground law in more than 200 cases (about half of them fatal) through to mid-2012. It reported that the law appeared to advantage 'those with records of crime and violence.' Nearly 60 percent of those making self-defence claims had been arrested at least once before; a third of these had been accused of violent crimes in the past; over a third had illegally carried guns in the past or had threatened others with them. In many of these cases defendants appear to have employed what would formerly have been regarded as excessive force. In 79 percent of the cases, the assailant could have retreated to avoid the confrontation and in 68 percent, the person killed was unarmed.
In nearly a third of the cases, The Tampa Bay Times explained, 'defendants initiated the fight, shot an unarmed person or pursued their victim - and still went free'. Overall, 'stand your ground' claims resulted in dismissals nearly 70 percent of the time. Judges appeared uncertain about the boundaries of the doctrine, and court outcomes were inconsistent. Australian critics of castle law argue that, if implemented in Australia, this law would allow people to apply up to lethal force without considering whether this was appropriate. Dan Creevey, senior partner at Creevey Horrell Lawyers, has warned that the castle law bill proposed by the Katter Australia Party is a 'dangerous response to crime in Queensland' and that the amendment 'should be met with extreme caution.' Creevey has stated, 'It is clearly inconsistent with the Criminal Code's detailed interpretation of the use of "reasonable force." For example, the draft laws within the bill will allow a person to use force that is intended to cause death or grievous bodily harm to intruders without the person reasonably believing that the use of the force is necessary to prevent death or grievous bodily harm.'
Creevey further stated, 'Unfortunately, the Bill would permit a form of murder without legal recourse in situations where there may be no direct threat to a person's life. Ultimately, the Bill is a dangerous response to crime in Queensland.' 4. Under castle law, protecting property can be a justification for lethal force
In modern western societies, crimes against property, such as theft, are no longer capital offences for which the offender can be executed. These societies have progressively attached increasing value to human life above possessions.
Critics of castle law argue that there are jurisdictions where this law can be used to justify the homeowner or occupant taking a burglar's life to defend residents' property. Its opponents claim this is morally wrong and that no law should put property rights above human life. Most American states do not explicitly sanction homeowners or occupants using lethal force to defend their property. However, this is allowed in some states, and, in most others, laws allow a resident to kill to defend property in an escalating situation. Eugene Volokh, Senior Fellow at the Hoover Institution at Stanford, and Distinguished Professor of Law Emeritus and Distinguished Research Professor at UCLA School of Law has explained the extent to which United States law allows lethal force to defend possessions. Professor Volokh writes, 'In nearly all states, you can't generally use deadly force merely to defend your property. Texas appears to be an exception, allowing use of deadly force when there's no other way to protect or recapture property even in situations involving simple theft or criminal mischief.' Professor Volokh also notes that in all American states it is legal to use non-deadly force to defend property and if this then escalates into a lethal conflict in which the burglar is killed, then the homeowner will not be prosecuted. In many states it is also possible for residents to move immediately to the use of deadly force if they anticipate that defending their property through less extreme means would expose them to too great a risk.
The Joe Horn case is often presented as an example of the way in which laws such as those operating in Texas allow a resident to kill in defence of property. In November 2007, two months after Texas' new 'castle doctrine' law took effect, a 61-year-old retiree named Joe Horn called the police to report a pair of burglars in the home next to his. Horn explained that he was armed and asked the police dispatcher if he should shoot the burglars. He was told, 'Nope, don't do that. No property worth shootin' somebody over, OK?' After waiting several minutes, Horn went out into his yard, called on the fleeing burglars to stop and when they did not, fatally shot both. Horn had previously told the dispatcher, 'The laws have been changed...since September the first, and I have a right to protect myself. I ain't gonna let them get away with this shit.'
On June 30, 2008, a Harris County Grand Jury elected not to indict Horn for any criminal offence related to the shootings. It determined he had committed no criminal offence as his actions were justifiable given his perception of the threat he faced. Houston Criminal Attorney John Floyd and others have disputed this finding. Floyd writes, 'If that is the way a grand or a petit jury interprets the law of self-defence, then the right to life has succumbed to the value of property.' Opponents of the Katter Australia Party's attempt to introduce castle law in Queensland are concerned that this would elevate property rights to the point where they can be used to justify taking the life of a burglar. Nick Dametto, the deputy leader of Katter's Australian Party (KAP), and the member for Hinchinbrook in the Queensland Legislative Assembly, said in defence of the proposed law, 'Your home should be your sanctuary and if someone intrudes or breaks into your sanctuary, you should have the right to do what's necessary to protect your property, family or yourself.'
Many of those who support the proposed legislation see it as giving homeowners and residents the entitlement to use lethal force in defence of property. One, apparently a former police officer, stated, 'Myself and many other former and serving Police colleagues, believe that anyone should be allowed to use lethal force to protect life AND PROPERTY without the risk of being prosecuted. Give the power back to the victims.' Opponents of these views argue that they have been repeatedly rejected by different Australian courts and parliaments. For example, in 2002, New South Wales introduced new laws extending the right to self-defence. However, the government was careful to ensure that this did not mean that protecting property became a justification for taking human life. It stated, 'There can be no circumstances where it is appropriate to intentionally or recklessly take a human life in the protection of property or to prevent criminal trespass.' 5. Australian law already allows up to lethal force to be employed in self-defence
Critics of the castle law bill put before the Queensland parliament argue that the changes proposed in the bill are not necessary. They claim that the different states, including Queensland, already allow homeowners and residents to act in their own defence should they encounter burglars or home invaders.
Though every Australian state deals with this issue somewhat differently, the overarching principle is that self-defence can be used where a person believes on reasonable grounds that it is necessary to protect themselves, another person or their property. This can be found by reference to section 418 of the Crimes Act 1900 (NSW) and is summarised as follow: 'A person is entitled to use such conduct as he or she genuinely believes is reasonable and necessary for a 'defensive purpose' (that is, in self-defence or in defence of another, or to prevent or end an unlawful imprisonment or protect property).'
When assessing what is 'reasonable' and 'necessary,' the Courts can analyse and accept into evidence, subjective facts about the accused's personal circumstances at the time of the offence. This could include for example, the mental state of the accused and whether his/her perception of danger directly influenced their response.
This means they are not imposing some externally defined standard of reasonable response. Rather they are recognising the nature of the threat as perceived from the victim's perspective.Australian legal experts acknowledge that the approach adopted under Australian law is more conservative than that followed in most of the United States, however, they argue that that does not disadvantage Australian homeowners and residents. In an opinion piece published in The Conversation on March 30, 2016, Marilyn McMahon, Associate Professor in Law at Deakin University, explained the actions allowable under Australian law to homeowners and residents in the event of a burglary or home invasion. Professor McMahon writes, 'Although the laws of self-defence vary across Australia, most laws require in essence that the person believed on reasonable grounds that it was necessary in self-defence to do what they did. And, from their perspective, there must have been reasonable grounds for that belief.'
Professor McMahon further explains, 'The approach generally adopted in Australia differs significantly from the "stand your ground" approach to self-defence that has been influential in the US. "Stand your ground" generally encourages "self-help" by removing any requirement of retreat. It permits a person who is threatened or attacked to stand their ground and claim self-defence even where an avenue of retreat or other means of avoiding the conflict was safely available... Approaches to self-defence in Australia still tend to emphasise reasonable necessity and discourage vigilantism. Police advise Australian homeowners against keeping weapons for protection and instruct them to immediately contact police if they suspect an intruder is in their home.'
Despite Australian law's more conservative response to self-defence, experts argue that Australian homeowners and residents are not disadvantaged so long as they act in the genuine belief that the defence measures they take are necessary. Sydney law firm National Criminal Lawyers have drawn on a recent case of a homeowner sent to trial after the death of a burglar outside his home. This case has been used to demonstrate the operation of Australian law in such circumstances and juries' readiness to support defendants' view of the need for violent action. A man had broken into the home of Ben Batterham and his young family. Mr Batterham discovered the intruder in the bedroom of his seven-month-old daughter, armed with several knives and high on methamphetamines. A struggle ensured which led to Mr Batterham using a chokehold on the intruder in the middle of a suburban street. The intruder subsequently died, and Mr Batterham was tried for murder and found not guilty, despite having pursued the intruder into the street and used a stranglehold. The jury judged that the homeowner's response was reasonable from his perspective.