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New York Castle Doctrine and Stand Your Ground Laws Facts and Myths

Since the recent tragedy of Trayvon Martin, and George Zimmerman’s trial, in Florida, there has been a significant reaction to not only the highly controversial philosophy of gun ownership for personal protection, but also the amount of leverage given to those who do by the laws. The laws that seemingly receive the most praise by gun owners and the most scrutiny by the media are those of Castle Doctrine and Stand Your Ground origins. Unfortunately, both sides of the argument base most, if not all, of their belief either for them or against them on a similar pretense. That pretense is a gross misunderstanding of those laws. Those for them tend to believe they offer the gun owner an almost unrestrained legal right to use their gun anytime their life is perceived to be in imminent danger and those against them are so because they believe they offer the gun owner an almost unrestrained legal right to use their gun anytime their life is perceived to be in imminent danger. Today, we hope to bring to light these misconceptions and hopefully arm the gun owner with the tools necessary to make a better informed decision before pressing the trigger. Remember, “knowing when to shoot is just as important as knowing how.” So first, a critical thinking exercise…

Is New York State a Corporal Punishment State?

U.S. Corporal Punishment and Paddling – Statistics by State

31 States (In White) have banned Corporal Punishment in schools

19 States (in red) have laws permitting Corporal Punishment in schools

The above diagram is a representative summary of what the following 10 websites have stated

The above diagram is a representative summary of what the following 10 websites have stated

                                                                                                                                                                                           

According to the top ten Google results (listed below), NY has banned Corporal Punishment:

http://en.wikipedia.org/wiki/School_corporal_punishment

http://www.stophitting.com/index.php?page=statesbanning

http://school.familyeducation.com/classroom-discipline/resource/38377.html

http://www.infoplease.com/ipa/A0934191.html

http://abcnews.go.com/US/spanking-school-19-states-corporal-punishment-legal/story?id=15932135#.UHWDOi7BfW4

http://www.nytimes.com/2006/09/30/education/30punish.html?_r=0

http://www.cnn.com/2008/US/08/20/corporal.punishment/

http://www.time.com/time/nation/article/0,8599,1915820,00.html

http://www.aacap.org/cs/root/policy_statements/corporal_punishment_in_schools

http://www.hrw.org/news/2010/04/14/corporal-punishment-schools-and-its-effect-academic-success-joint-hrwaclu-statement

What does this question have to do with personal protection laws?

Good question. It has to do with it more than you think. Did you know that New York State, by law, is in fact a Corporal Punishment State? In fact, only by the policy of public schools is it not one. The law provides 100% legal right for not just public schools, but private schools, daycare centers, licensed babysitters, church Sunday schools, and yes, even parents, to paddle their children as a disciplinary measure. It is simply the lack of exercise of corporal punishment that has created the belief it is illegal, but that is just an incorrect conclusion. Let’s look at what the laws and the NYS Department of Education says…

New York State Penal Law, Article 35, Section 10, Paragraph 1 states:

A parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one or an incompetent person, and a teacher or other person entrusted with the care and supervision of a person under the age of twenty-one for a special purpose, may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.

These general provisions explains further:

a. The term “school” means and includes any public, private or parochial child caring center, day nursery, day care agency, nursery school, kindergarten, elementary, intermediate or secondary school.

c. The term “teacher” means and includes any school official, which includes but is not limited to school teacher, school guidance counselor, school psychologist, school social worker, school nurse, school administrator or other school personnel required to hold a teaching or administrative license or certificate; social services worker; director of a children’s overnight camp, summer day camp or traveling summer day camp, as such camps are defined in section thirteen hundred ninety-two of the public health law; day care center worker; school-age child care worker; provider of family or group family day care; employee or volunteer in a residential care facility defined in subdivision four of section four hundred twelve-a of this title or any other child care or foster care worker; mental health professional; substance abuse counselor; alcoholism counselor; or all persons credentialed by the office of alcoholism and substance abuse services.

Here is a screenshot of the NYS Department of Education’s public website showing their assumption that Corporal Punishment might be used (as it is lawful) and the policy for handling not the incidents of when it happens but simply the complaints of its use.

 

http://www.p12.nysed.gov/sss/ssae/schoolsafety/CorplPunish/CorporalPunishment.html

 

The point being made here is that much like spanking, hearsay has contributed more to people’s false confidence in, or to the contrary, their unnecessary fear of, the legal right to use a gun to protect oneself or their family. True confidence in the use of a gun comes not only from your developed skill and determination to act, but from the correct knowledge of the laws put in place to protect oneself from any criminal charge whatsoever.

This outline is nothing more than just that, and does not presume to provide all of the necessary knowledge to make an informed decision regarding every possible circumstance that comes to one’s self. It will however hopefully dispel some myths regarding New York’s support of the use of a gun, or any other tool, for protection of life, limb, and property. So let’s get to it.

Is New York a Castle Doctrine State?

Let’s first define what Castle Doctrine is.

Castle Doctrine is a legal treatise that formulates around the philosophy that a “man’s home is his castle.” It provides legal presumption of an intruder’s intent to inflict serious bodily harm or death to the homeowners simply by their unlawful entrance into said home. Castle Doctrine relieves the homeowner from their duty to abandon their home or their obligation to announce their intentions to use deadly force when defending themselves and/or their property.

In summary, Castle Doctrine:

  • Automatically relieves the “victim” of having to leave their property when a break-in happens
  • Automatically proves the attacker’s intent to do harm simply because they broke in

With Castle Doctrine, someone unlawfully entering your property will legally provide proof of your intruder’s intent, but it still leaves the burden of proving their ability and opportunity to do serious physical injury on you. This is normally a very important and essential key to someone’s justification of their use of deadly force in self-defense because in most states your legal defense will consist of having to provide evidence of your attacker’s Ability, Opportunity, and Intent to do serious physical injury to you (or someone else), otherwise known as an Affirmative Defense. We say normally, because while most states put the burden of proving such things on the defendant, New York does not!

Most states consider the use of deadly force in self-defense an Affirmative Defense – not so with New York:

“THE RIGHT TO DEFEND ONESELF OR ANOTHER WAS EARLY CODIFIED IN THIS STATE AS AN INTEGRAL PART OF THE MURDER STATUTES, AND THIS COURT HAS LONG HELD THE PEOPLE HAVE THE BURDEN OF DISPROVING BEYOND A REASONABLE DOUBT A DEFENDANT’S CLAIM THAT HE WAS ACTING IN THE EXERCISE OF THAT RIGHT. ACCORDINGLY, JUSTIFICATION UNDER THE PENAL LAW IS AN ORDINARY DEFENSE RATHER THAN AN AFFIRMATIVE ONE. AS SUCH, WHENEVER JUSTIFICATION IS SUFFICIENTLY INTERPOSED BY THE DEFENDANT, THE PEOPLE MUST PROVE ITS ABSENCE TO THE SAME DEGREE AS ANY ELEMENT OF THE CRIME CHARGED.” PEOPLE V. MCMANUS, 67 N.Y. 2D 541 (1986)

New York State Penal Law, Article 25 defines:

1) When a “defense,” other than an “affirmative defense,” defined by statute is raised at a trial, the people have the burden of disproving such defense beyond a reasonable doubt.

2) When a defense declared by statute to be an “affirmative defense” is raised at a trial, the defendant has the burden of establishing such defense by a preponderance of the evidence.

This means that where most states require the defendant to prove they were innocent, New York leaves the burden on The People (through the discretion of law enforcement and the justice system) to prove that it was wrong for the “victim” to defend themselves with deadly force. The advantage to this however is that it is procedurally more in line with Fifth Amendment protections and its justification is generally more flexible in decree.

“JUSTIFICATION DOES NOT MAKE A CRIMINAL USE OF FORCE LAWFUL; IF THE USE OF FORCE IS JUSTIFIED, IT CANNOT BE CRIMINAL AT ALL. …THE DEFENSE DOES NOT OPERATE TO EXCUSE A CRIMINAL ACT, NOR DOES IT NEGATE A PARTICULAR ELEMENT OF A CRIME. RATHER, BY RECOGNIZING THE USE OF FORCE TO BE PRIVILEGED UNDER CERTAIN CIRCUMSTANCES, IT RENDERS SUCH CONDUCT ENTIRELY LAWFUL.” PEOPLE V. MCMANUS, 67 N.Y. 2D 541 (1986)

Therefore, it is impossible for New York to have a place for Castle Doctrine in their self-defense laws by this alone. Only a state where deadly use of force in self defense is considered an affirmative defense has the necessary leverage for Castle Doctrine. NY does however contain elements of Castle Doctrine in its Use-of-Force Laws as found in…

NYS Penal Law, Article 35, Section 15, paragraph 2:

A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless

(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is

(i) in his or her dwelling and not the initial aggressor;

NYS Penal Law, Article 35, Section 20, paragraph 2:

A person in possession or control of any premises, or a person licensed or privileged to be thereon or therein, …may use deadly physical force in order to prevent or terminate the commission or attempted commission of arson (as defined in Article 150), or

A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary (as defined in article 140).

So while there is a “no duty to retreat when in your home” and the legal protection afforded against “burglary” it is not the same as actual Castle Doctrine and the incorrect interpretation of them has contributed to the myth that New York is a Castle Doctrine state.

Is New York a Stand Your Ground State?

Much like Castle Doctrine, Stand Your Ground Laws are based on the legal treatise which generally relieves any duty or other requirement to abandon a place they have a legal right to be, or give up ground to an assailant, and can use deadly force to uphold it. The main difference between Castle Doctrine and Stand Your Ground is whether the lethal confrontation takes place in one’s home or not.

While this sounds like a “catch-all” for the legal use of a gun in self-defense, it still does not provide the legal presumption of the attacker’s intent to do serious physical injury to the “victim.” Just ask George Zimmerman. What is important to consider however is that Stand Your Ground Laws have a significant deterrence factor, but generally requires a very large amount of responsibility, patience, ability to act cool under pressure, and level-headedness on the part of the gun owner. Remember, there are three ways to deal with a potentially lethal encounter:

  • AVOID
  • EVADE
  • COUNTER

And again, because New York State is not an Affirmative Defense State, there is no legal way to provide for Stand Your Ground Laws. In addition you are under the legal obligation to retreat when not in your own home and it’s safe to do so (for yourself and others).

So the real question is, “What do we do with this information?”

  1. Get a proper appreciation for making sure you know that when it comes to justifying your use of deadly force in NYS it is putting yourself in a position where a jury would believe it was wrong if you didn’t shoot. Remember Necessity and Justifiability.
  2. Necessity is based on reasonability and reasonability is based on an average person agreeing it was needed (i.e. Jury).
  3. Your justification in NY State will come down to The People not being able to prove you were wrong, or disprove you were right.
  4. Remember that your gun is not to be solely used to prevent break-ins, intimidation, or insubordination.
  5. A criminal trial is only one of the many types of damages you will face when using a gun in self-defense, consider this along with your moral and ethical obligations.
  6. With a proper understanding of NY’s Use-of-Force laws, you should feel more confident in your use of a gun, not less.
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  • Adelbert Waldron

    Is New York a Castle Doctrine State? Answer: Yes.
    Is New York a Stand Your Ground State? Answer: No.
    End of article.

    • Johnathan Celso

      Did you read the article?

  • Fla Catman

    The very first sentence of this article, “Since the recent tragedy of George Zimmerman in Florida…….” displays the author’s basic bias that George Zimmerman is the victim, instead of even naming Treyvon Martin, who is dead and lifeless right now. George Zimmerman is alive and being legally tried according to Florida laws.

    It has become clear that the Stand Your Ground laws (as written and sometimes interpreted by gun owners) are far too broad, leading many to believe they are a protective shield for any occasion. In reality, when one carries a concealed weapon a huge responsibility for consequences comes with that privilege.

    When I was a resident of NY state, a course was offered, mostly to LE Officers, concerning the legal ramifications and consequences of using a weapon. I feel that such a course should be taught along with every Concealed Carry course (which takes less than 6 hours total to satisfy Florida requirements).

    • Mickey

      You are in Florida now? Please go back to New York.

      • BC1

        This is not a state issue this is a common sense issue. As an instructor of personal protection and various penal laws standing your ground is among the worst things you can do. A smart person will make an attempt to avoid using force or deadly force until absolutely necessary. The costs and ramifications, as Zimmerman has found, far outweigh the law. George Zimmerman is the poster boy for everything one does not do. You seems to take issue with NY but the laws really aren’t far apart. In NYS one must make an atempt to retreat when not in their own home but once the attack commences that duty to retreat is gone. A duty to attempt retreat is solely for the purpose of de-escalating a situation before it’s out of hand.

        I’m a reswident of both FL and NY. My wife is from West Palm. I teach FL stand your ground law, as well as all of Chapter 790 of the FL state statutes. If you feel you can just stand there and shoot you’ll need a fat wallet for the legal fees. Don’t like NY? Then don’t go there. But it has nothing to do with a common sense approach to self defense. Perhaps your should read “In The Gravest Extreme” by Mas Ayoob. He spells out the aftermath of a justified shooting in very scary terms. And he’s not from NY.

    • http://www.facebook.com/people/Charles-R-Lewis/1355680785 Charles R. Lewis

      good point. While Zimmerman clearly had a right to carry, he exhibited extremely poor judgement in leaving the security of his vehicle and following somebody who he felt was a threat. Gun owners need to do better. Stand your Ground is troubling, because by eliminating the “duty to flee” we open up the possibility that somebody may shoot an enemy, sight unseen, and then argue self-defense successfully. The right to self-defense has always existed, and if you take a life, even in self-defense, it is reasonable that you might have to explain your justification in court.

    • o2psd4me

      “The very first sentence of this article, “Since the recent tragedy of
      George Zimmerman in Florida…….” displays the author’s basic bias
      that George Zimmerman is the victim, instead of even naming Treyvon
      Martin, who is dead and lifeless right now. George Zimmerman is alive
      and being legally tried according to Florida laws.”

      No… George Zimmerman is being RAILROADED! Zimmerman was attacted by Martin, as is obvious in the pictures that the Police took.

      Stand your ground in FL is not too Broad, Please take I-95 North and go back to NY

  • Johnathan Celso

    There seems to be some confusion by the readers regarding who the article is addressing and the point it is making.

    It is addressing residents of New York State only!

    The point being made is many gun owners, regardless of residence, have falsely attributed New York State as a Castle Doctrine State (see the first comment below for an example) because they use regurgitating websites as their final authority rather than the law, case history, and legal council – much like corporal punishment.

    As a result many of my co-citizens in New York State have a false confidence that they can “blow any guy away who breaks into their house.” They are sadly mistaken and it could cost them their life anyways. Both financially and freedom wise.

    Just ask George Zimmerman. He made decisions based on a false confidence in Stand Your Ground laws that came from his misunderstanding of what they are. “Knowing WHEN to shoot is just as important as knowing how.” In some cases, it’s more important. Hopefully this article will encourage its readers to consider just how sure they really are.

    • BC1

      Johnathan, my business partner advised differently on this issue from the perspective of a former DA and criminal defense lawyer. This is not a false confidence. The case law in NY on this is clear. For example, People v. Raymond Zayas, whereby Zayas shot a police officer through the door (Middletown, NY) who failed to announce himself. The case was overturned by the appellate court because the jury was not properly instructed that he had the right to exercise deadly force against a burglar. He eventually went down as he was a pretty bad guy. But the case was overturned. We were unable to find any case where a person was convicted of shooting someone who broke into their home, given that narrow scope. I was advised I was teaching the penal law incorrectly (paralegal program) when I stated you can’t just shoot a burglar.

      • Johnathan Celso

        You can shoot a burglar. The problem is most people think a burglar is someone who breaks into your home. That is not what a burglar is in NY state. A burglar is someone who is in your home “with the intent to commit a crime.” Do you know what a “crime” is in New York State. Are you 100% sure that they are there with the intent to do that. Then and only then are you justified to use deadly force. Castle Doctrine relieves that amount of proper discretion. So People v. Zayas was ruled correctly by the appellate and it doesn’t contradict my argument.

        • BC1

          Yes, Article 140 of the PL defines burglary as requiring intent to commit a crime. What is the standard of intent?
          Consider pattern jury instructions on intent.

          “a person is guilty of an attempt to commit a crime when, with intent to commit a crime, he or she engages in conduct which tends to effect the commission of such crime. Conduct which TENDS TO EFFECT the commission of a crime means conduct which comes dangerously close or very near to the completion of the intended crime.”
          It’s a real grey area and most people don’t understand the difference thus they wrongfully believe they can just “cap” someone. However, we can’t find any case law upheld at the appellate level convicting someone of assault, murder or manslaughter based solely on the shooting of an intruder. State of mind becomes a factor in many of these cases and doubts as to the intent of the intruder have generally inured to the benefit of the victim.
          Great article and discussion. Thanks.

          • Johnathan Celso

            Couldn’t have said it any better. THAT is exactly the difference between a Castle Doctrine state and one that’s not. Castle Doctrine states provide the intent WITHOUT the attempt. NY says you know intent only when you see an attempt. You must wait to shoot until you are sure. It’s the difference between an iron clad defense and a flip of a coin on how the jury feels that day. It would be better for the jury to say, “You would have been wrong if you didn’t shoot.” Then to say, “Well… let’s see their side of the story.” Thank you though for providing great information and facts instead of opinion. For that I respect your message very much!

  • Marry Root

    Julian. I just agree… Richard`s report is something, on monday I bought a gorgeous Renault 4 after having made $6189 recently and even more than $10k this past-month. without a doubt it is the nicest-work Ive ever had. I began this 10-months ago and pretty much immediately startad bringin in at least $82 per hour. I went to this website,, jump15.comCHECK IT OUT

  • golocx4

    Good info and thanks Johnathan. Bottom line truth is “everything in New York is political”
    Your actions will be judged behind closed doors and the decision of justifiable or prosecution pending will be made for political reasons, Either way you will need to hire a lawyer. .

  • dean800

    Liliana. you think Lori`s artlclee is unimaginable… on saturday I got a great new Smart ForTwo since I been earnin $9505 this last four weeks and in excess of $10,000 lass month. it’s realy the most financially rewarding I’ve had. I actually started six months/ago and pretty much straight away made myself over $85 p/h. I follow the details here,, jump15.comCHECK IT
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  • Marlene Wilkes

    Hadley. I agree that Stanley`s st0ry is cool, on thursday I bought a new Land Rover Range Rover after earning $8067 this-past/four weeks and in excess of ten grand this past-month. this is definitely the most-comfortable work I’ve ever done. I actually started six months/ago and immediately started to earn at least $71… per-hour. I use the details on this website, jump15.comCHECK IT OUT

  • Olga Peluso

    Wyatt. I can see what your saying… Jean`s stori is terrific, on saturday I bought a great new Honda NSX since I been making $6681 this-last/4 weeks and-even more than, ten k last munth. without a doubt its the nicest-job Ive ever had. I started this nine months/ago and pretty much immediately started to make minimum $79, per-hr. I use the details on this website,, jump15.comCHECK IT OUT

  • Emily Boyd

    up to I saw the bank draft ov $7059, I have faith that my friends brother woz like actually receiving money in their spare time from there pretty old laptop.. there best friend has been doing this for only about 14 months and as of now repaid the mortgage on their condo and bought a great new Buick. go to, jump15.comCHECK IT OUT

  • becky

    anyone who enters my house who I do not know or who does not have permission to enter my.house is considered an intruder…….if u dont know that person he is there to do some kinda crime……if he/she wasn’t there to do some kinda crime……y would they be there. the normal person dont just go breaking into someones home for no reason