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
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://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
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?”
- 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.
- Necessity is based on reasonability and reasonability is based on an average person agreeing it was needed (i.e. Jury).
- Your justification in NY State will come down to The People not being able to prove you were wrong, or disprove you were right.
- Remember that your gun is not to be solely used to prevent break-ins, intimidation, or insubordination.
- 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.
- With a proper understanding of NY’s Use-of-Force laws, you should feel more confident in your use of a gun, not less.
