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The Supreme Judicial Court of Massachusetts rendered a decision this week in the case of Commonwealth v. McKinnon, regarding the so called "castle law." Massachusetts General Laws c. 278, § 8A, provides:

"In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling."

Here is a brief version of the facts of the case: Two brothers went to a party at a private home. They got in a fight and one brother needed stitches. The boys' father was angry about under age drinking, and drove back to the house with his sons at 1:00 AM. He yelled for the occupant of the house, a 20 year old man, to "come out or we're coming in." The occupant, Mr. McKinnon, went onto his porch with a baseball bat. The father went onto the porch and another fight quickly broke out. McKinnon was not involved in the previous fight. McKinnon, was charged with assault and battery and assault with a deadly weapon.

At his trial, McKinnon claimed self defense. He requested a jury instruction incorporating the castle law quoted above, that he did not have any duty to retreat. The trial judge refused to give the instruction on the grounds that the law does not extend to exterior stairs or porch, but only covers the inside of a dwelling.

McKinnon was convicted and appealed. The SJC took the case on its own motion to consider this question, and the SJC affirmed the conviction. The Court reasoned that:

"We do not agree with the defendant that the term "dwelling" should extend to the outside stairs of the house. As discussed, the plain language of G. L. c. 278, § 8A, limits the defense to an occupant who injures someone unlawfully in the dwelling. Open areas are not given the same legal exemptions as the residence or dwelling itself. See Commonwealth v. Peloquin, supra; Commonwealth v. Bennett, 41 Mass. App. Ct. 920, 921 (1996)."

RESULT: In Massachusetts, if you are in your yard, on your porch, or on your steps, and you are being threatened, you have a duty to retreat if you hope to successfully invoke self defense as a defense to an A & B.

What do you guys think of this opinion? Is it reasonable? What if you open the door to somebody who turns out to be a criminal and he pulls you outside? What if you step out on the porch to talk to a "salesman" who turns out to be a criminal?

I would like to read your thoughts on this.

Sincerely,

Norm Abrahamson

Norm,
I can't help but wonder if the facts of the case as you presented them resulted in the SJC reaching the decision they did. The defendant wasn't pulled out of the house nor had he gone to talk to a salesman. He went out armed and seeking confrontation. If he hadn't intended to get involved in a confrontation why did he go out there in the first place. The intelligent, prudent homeowner/occupant would have called the police and waited, armed inside. Actually that did happen to me - I let the perp beat on the door and sat calmly in the kitchen with my S & W 9mm and listened for the approaching sirens.

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It's what we do!

Rising Star:

There was actually a thread on this case on Van's Forum that came off the same post.

You're right, the Defedant wasn't prudent. But he didn't act that unusually either. He was threatened that if he didn't come out, they were coming in. Maybe he thought that he could head things off, brandish a bat, and they would leave. Maybe he didn't think at all, but only reacted. I'm not saying the Defendant couldn't have been smarter. But remember, the victim showed up at his house looking for him. He may have been trying to defend himself, his home and the people in it.

Sincerely,

Norm

This modification, if you will, was brought about by former Governor King.

He "Dumped the Duke" and waved the then then current Massachussets "Retreat" doctrine, and the public's concern about the doctrine as it applied to one's home as a campaign cornerstone.

The 'retreat' doctrine, as far as I know, is still in effect as to "street scenarios" and i should and would have advised any client to make sure a scenario he or she reacted to in the street included "fear for one's life" and "an inabilty to retreat".

The public's reaction, although quite welcome, was based on case where a woman shot an alleged intruder in her home.

Facts at the trial established that she knew the intruder, and that he was in fact her ex husband.

A welcome change in the law by statutory means was thus based based on the public's incorrect interpretation of the decision rendered in that particular case.

A court can only interpret the law as written and based on precedent. To change the law and cut off prior precedent requires legislative action (of course.)

JT

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"All Enlightenment Gratefully Accepted"

PS=

As a former attorney and drafter of some legislative efforts, I truly loath the "retreat doctrine".

I HATE bad law.

All the interpretations here appear correct, so if you take an action to defend yourself, get your ducks in a row quickly, get a good criminal attorney and stay with your story.

JT

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"All Enlightenment Gratefully Accepted"

Virginia does not have a written Castle Doctrine as VA law itself is based on Old English Common Law that establishes the doctrine. However, written into VA firearm laws is the state 'or your curtilage thereof'. That extends the boundary of your home to include your surrounding property. It also includes things such as your workplace or a rented hotel room.

There will be a Richmond case going before a grand jury soon that will test the limits of 'curtilage'.

Rich

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Member of the world's premier gun club, the USMC!

I can understand how one could get 'emotionally 'jacked' _ under the same type of threat of intruders about to 'bust in' and take steps to 'pre-empt' a home invasion.

But this is 'tactically poor' response action for a few reasons:

1. You step out_ you remove initial 'protective cover and concealment' from the enemy.
2. You step out with a bat you are now a wide open target exposed to a ‘pincer’ attack.
3. You are now a wide open target for criminal prosecution and civil action for a number of reasons being outlined here and more.
4. Best to ‘yell back’ _ I have called the police and I have a gun.

Then shut the door, lock it, have your family retreat to the ‘safe room’ while you take up ‘cover and concealment’ position with a ‘Sicilian welcome’ in your hands at a strategic point that covers ‘entry points’ into your home.



It will always come down to what was reasonable under the circumstances.



John, can you tell us more about how this thing developed?

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Van

Van,

At the time I was doing a lot of divorce work and had an office in my home. I was hired by the wife and there was a history of domestic abuse/violence by the husband. I had him served with the Divorce Complaint and a domestic restraining order at his place of employment in order to allow my client and her children to get to a safe location expecting a potentially explosive reaction.

At about 7 AM the next morning the explosive reaction occurred. I heard tires squeal into my driveway and then yelling and his efforts to gain entry into my home/office. Doors were already locked. I called 911 and then, as you suggested above, I occupied a strategic location with my 9mm and 15 rounds of Federal Premiums Personal defense Hydro shock rounds.

The local PD arrived in what seemed like no time - we have a good force. The perp then started to get mouthy with them and the next thing you know he was face down in the driveway, cuffed and away.

He was convicted on a number of charges although he rec'd a suspended sentence. The judge was pretty pissed that the guy went after his wife's divorce atty!

John

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It's what we do!

Yeah...these 'husbands' become total animals at that stage.

'Divorce lawyer' = very dangerous occupation:
Good strategy and good 'bullets' _ I would use a 12 gauge pump as the initial 'persuader' with the unmistakable ‘clacking sound’ _

and the pistol ‘Mexican carry’ as the ‘finisher’ _

Do you guys notify the cops ahead of time of a potential explosive reprisal?

What would the police recommend in such cases?

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Van

Van

For one, I no longer maintain the "home office". That just becomes an open invitation for problems. I had also made sure that my family was in safe locations that night and morning so that if anything happened, i wouldnt have to focus on them and could attend to the situation with total focus.

I have never given a heads up to the police in such cases. My gut is that there isnt much that they could do anyway. If I suspect something might get testy, I try to be ready but this situation was a rarity. Those 'husbands' may be abusive to their spouse but they usually lack the stones to confront someone who will not put up with it.

In my situation, the guy was off his rocker to put it mildly.

John

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It's what we do!

Good points John.

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Van