With the NYPD Demoralized, New Yorkers Turn to Self-Defense
The Castle Doctrine is suddenly back in vogue as crime spikes in cities across the country.
The NYPD is demoralized. Our police have been physically and verbally assaulted by social justice warriors and malcontents. They’ve been arrested, prosecuted, and generally hung out to dry by a left-wing mayor who finds police anathema and craven district attorneys who calculated it was in their electoral interests to surrender prosecutorial decisions to the mob. Over the last 11 weeks, our political class has defenestrated New York’s Finest and defunded them to the tune of a billion dollars.
The effects have been immediate and documented. One video, recorded on June 28, shows multiple NYPD vehicles retreating after numerous young men in Upper Manhattan launched glass bottles at them for having the gall to investigate a shooting. Another June video shows men terrorizing an unidentified New York City housing project courtyard with dangerous fireworks while an NYPD vehicle leisurely rolls by without stopping.
Our dramatic crime increase also reflects the NYPD’s sense of impotence, informed primarily by the current social chaos but also by a misguided bail reform law that took effect on January 1, which requires judges to release back onto the street some of the worst pretrial offenders. From January 1 to July 26 of this year, Gotham saw a 72.9 percent increase in shootings and a 81.4 percent increase in shooting victims in comparison to the same time last year. On July 5, 42 people were shot, nine fatally, in a 15-hour period. With respect to burglary—knowingly entering or unlawfully remaining in a dwelling with the intent to commit a crime—there has been a 45.7 percent increase, 8,384 this year compared to 5,753 last year.
New Yorkers have taken notice. As a lawyer, I’ve recently received inquiries from people wondering how they can obtain firearm licenses and when they would be justified in using force, deadly or otherwise, to defend themselves against dangerous persons. This fear is particularly acute as it relates to the sanctity of their homes. If we are entering a new normal, where leftist activists demand that the police stand down and the police acquiesce, then New Yorkers and other law-abiding residents of disintegrating cities should have a basic understanding of the Castle Doctrine.
The Castle Doctrine holds that when an intruder enters a person’s home, the homeowner has no duty to retreat and can thus neutralize the intruder with deadly force. The rule is premised upon the 17th-century English maxim attributed to Sir Edward Coke: “a man’s home is his castle.”
In 1914, New York Court of Appeals Judge Benjamin Cardozo expounded on the doctrine in People v. Tomlins:
It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed here he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home. …Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in the home.
Like a castle, a home should protect its inhabitants. As a result, the common law granted immunity from prosecution to persons compelled to invoke the doctrine’s deadly writ.
Today, the Castle Doctrine is codified in the penal law of the 50 states. Rather than the common law rule, these criminal statutes, which vary depending on the state, govern the legality of deadly force in the home. (Thus should nothing in this article be relied upon as legal advice. The demands of citizenship compel everyone to educate themselves on the contours of the doctrine in their own states, particularly during moments of civil unrest.)
In New York, the Castle Doctrine is statutorily recognized at Penal Law § 35.15(2)(a)(i): “A person may not use deadly physical force upon another person” unless the actor is “in his or her dwelling and not the initial aggressor.” While there is no duty to retreat in the home, the “initial aggressor” element of the statute is generally relevant in situations where deadly force is deployed between residents of the same home. New York law defines an initial aggressor as “the first person who uses or threatens the imminent use of offensive physical force,” but that does not encompass a person who employs “deadly physical force” where “he reasonably believes it was about to be used against him.” As a practical matter, in the overwhelming instances of burglary and home invasion, where the intruder is not a resident and has no legal right or permission to be there, the king or queen of the castle—to extend the metaphor—is within their prerogative to depose the usurper permanently.
Where feasible, the business of confronting criminals is best handled by the police. Civilized society demands that law enforcement secure “the perimeters of order and justice in the hope that their presence will deter the forces of darkness and chaos, because they are meant to spare the rest of the people direct confrontations with the dreadful, perverse, lurid, and dangerous,” as Professor Egon Bittner, an expert on police-society relations, observed 50 years ago. At the slightest bit of trouble, however, our political leaders have abandoned them, while cowering before the demands of the mob. Commentary recently noted the madness of this approach: “The mob comes only for those who hope to please it. And when it does, no amount of apology will save you.”
With lightning speed, New York is regressing to the bad old days of the ’70s, ’80s, and early ’90s. Since March, Americans have purchased a record-breaking 8.3 million guns. If Mayor de Blasio does not reverse course and instruct the NYPD to enforce the law aggressively, without fear or favor, then some New Yorkers may feel they have no choice but to rediscover their frontier spirit in order to protect their families. If this antisocial reality materializes, the Castle Doctrine will likely be part of a societal shift towards self-help, as some New Yorkers engage, what the Indiana Supreme Court called in 1877, “the tendency of the American mind,” which is “very strongly against the enforcement of any rule which requires a person to flee when assailed.”
As worrisome as this might be, we’re not entirely in uncharted territory. Indeed, in 1974, amid New York City’s crime wave, a former liberal architect turned folk hero asked his son-in-law, after their family had endured a horrific tragedy at the hands of roving thugs, “What about the old American social custom of self-defense? If the police don’t defend us, maybe we ought to do it ourselves.” The folk hero was Paul Kersey, who was played by Charles Bronson, and the city was the New York of “Death Wish.” Let’s pray it doesn’t come to that.
Craig Trainor is a criminal defense and civil rights attorney in New York City. Follow him on Twitter @TrainorLaw.