For the Defense - Vol. 9, Issue 3 - 19

Accordingly,
in comparison to the Castle Doctrine, the
stand-your-ground standard is significantly different and more
difficult to establish. While under the Castle Doctrine, an actor
is presumed to have had a reasonable belief that deadly force
is necessary to protect himself against an unlawful intruder of
a dwelling or occupied vehicle, no such presumption exists for
those utilizing defensive force under the Stand Your Ground
Doctrine. Invoking this defense requires a much more factintensive
inquiry and is still subject to an evaluation of whether
the actor reasonably believed the use of force to be necessary
and whether he initiated or provoked the initial use of force.
Taking
the
requirements seriatim,
the
first
inquiry
is
whether the actor was " engaged in criminal activity or in
illegal possession of a firearm. " Clearly, the Legislature did
not intend for criminals to be able to claim a right to stand
their ground when confronted in relation to a crime, or to
allow one to claim stand your ground, when illegally carrying
a firearm. Or stated slightly differently, a thief confronted
by the person he is stealing from, or someone who starts a
fight by assaulting another, is not entitled to stand his ground
when that victim retaliates against him. " Criminal activity " is
defined by the statute as " conduct which is a misdemeanor or
felony, is not justifiable under this chapter and is related to the
confrontation between an actor and the person against whom
force is used. " Illegal possession of a firearm can be the result
of a few different causes, such as the firearm being stolen,
serial numbers being defaced or obliterated, the possessor
being someone who is prohibited from the possession of a
firearm under a provision of State or Federal law, or the actor
not having obtained a license to carry firearms. If the actor is
engaged in criminal activity or illegally carrying a firearm, the
standard for when defensive force could be used reverts back
to the duty to retreat standard, but self-defense could still be
claimed if the actor had his back to the wall and reasonably
feared that he would suffer serious harm.
Second, and one of the more baffling inclusions by the
Legislature, is that the person claiming the defense must be
" attacked in any place where the actor would have a duty to
retreat. " This can be generally disregarded because someone
attacked in a place encompassed by the exceptions to the
prior duty to retreat, namely, a dwelling or place of work, at
least in relation to a dwelling, is entitled to the much stronger
protections and presumption of the Castle Doctrine. There is
no rational purpose for this provision where, in any event, the
actor would still be relieved of the duty to retreat and would
be entitled to use deadly force to defend himself. As this
author has stated previously, this oversight appears to be the
result of poor drafting by the General Assembly.
Third, whether an actor has a right to be in the place where
they are attacked will usually be clear-cut. The archetypal public
self-defense case will take place on a public street or sidewalk,
or in a business that is open to the public. On the opposite end
of the spectrum, an intruder who breaks in through the back
door of a store is clearly not entitled to the defense. However,
some gray areas may arise if, for example, the business
prohibits firearms on the premises. If an actor uses a firearm
defensively on the premises, does his violation of the business's
policy mean his presence was unlawful? It might be worth
noting here that in Pennsylvania, there is no statute according
" no guns " signs with the force of law. What about the case
of innocent trespass if, for example, a hiker loses the trail
and wanders into unmarked but privately-owned woodland?
Several high-profile cases in other states have involved the use
of deadly force by property owners claiming the protection
of the Castle Doctrine against inadvertent trespassers, which
may also raise tricky questions about whether the victims
could have claimed the stand-your-ground defense if they had
responded with deadly force of their own. As discussed infra,
the reasonable belief of the actor as to the circumstances is
a relevant point in claiming lawful self-defense, but whether
this reasonable belief extends to the actor's lawful presence in
a place is less clear.
As mentioned, unlike the Castle Doctrine, Pennsylvania's
Stand Your Ground law contains no provision that a person
claiming the defense is entitled to a presumption that they
held a reasonable belief in the necessity of deadly force. It
is on this point that many defenses fail. An attacker may do
any number of things that would be considered aggressive or
offensive to a reasonable person, but which do not amount to
a reasonable indication that there is an imminent risk of death,
serious
injury, kidnapping, or forcible
sexual
intercourse.
While the Stand Your Ground Doctrine will not suffice as
a defense based on just any kind of aggression, the statute
provides that the necessity to use force is determined by the
actor according to " the circumstances as he believes them to
be when the force is used. " It makes no difference whether
the aggressor actually intended any harm at all, so long as the
actor's belief was reasonable in the moment. In many cases,
the person claiming the stand-your-ground defense will be
the only immediate witness, and a jury will often have to
determine the reasonableness of the belief based on a wide
array of circumstantial evidence. Courts have also allowed
evidence of past criminal or violent conduct by the person
against whom force was used to determine whether the actor
had a reasonable belief that they were threatened with serious
injury.28
Fourth, the use of deadly force must be immediately
necessary to protect the actor from the threatened harm. Selfdefense
claims often fail because the person using force left
the scene and later returned with a firearm or attacked another
person with deadly force based on that person's threats to do
something in the future. If a defendant successfully retreats
from a threatening encounter and then comes back swinging,
it is very likely that the prosecution will be able to overcome
any defense of justification. Stand-your-ground is designed
to protect people who respond to an imminent harm, not a
distant one, and only in very rare circumstances will it operate
to shield someone who acts preemptively or retaliates after the
fact. The same is true of situations in which an actor provokes or
encourages another into taking actions that would otherwise
allow him to claim justified self-defense. Defenses have been
lost because a defendant communicated something along the
lines of " why don't you come to my house and do something
about it? " and shot the aggressor dead when taken up on the
offer.
Fifth, in relation to the requirement that the person
against whom the force is used displays or otherwise uses
a weapon, the General Assembly's defining of a weapon to
include a replica firearm or a weapon " readily or apparently "
capable of lethal use, further reinforces the statute's focus
on the reasonable belief of the actor. The Legislature cast a
broad net, aiming to protect individuals who use defensive
force from after-the-fact determinations (such as that the
apparently lethal weapon was in fact a realistic water pistol
or a rubber knife). On this point, it is up to defense counsel to
lay the necessary foundation to argue that the actor's belief
Vol. 9, Issue 3 l For The Defense 19
For the Defense - Vol. 9, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 9, Issue 3
