Lately, the news has been filled with the story of Trayvon Martin, a Florida teenager shot dead by a neighborhood watch patrolman. Martin had stopped at a convenience store and was walking home when 28-year old George Zimmerman began to follow him. Zimmerman was convinced that Martin was on drugs and inspecting houses to rob. After an ensuing scuffle, where it was unclear who attacked whom, Zimmerman shot Martin in the chest. Martin died, and Zimmerman claimed self defense under Florida’s “Stand Your Ground” law. Since then, outrage has been building. Evidence suggests that Martin, who had no criminal record, was not the aggressor and was trying to evade Zimmerman. If Zimmerman were the true aggressor, then Florida’s “Stand Your Ground” defense would not apply. Even so, many have pointed out that the mere existence of Florida’s “Stand Your Ground” law has prompted people like Zimmerman to behave more recklessly than they otherwise might have. Could a Trayvon Martin sitation happen in West Virginia?
Roughly 21 states have adopted “Stand Your Ground” laws, including West Virginia. The idea behind “Stand Your Ground” is that the one in danger does not have a duty to retreat before using deadly force against the perpetrator. The duty to retreat has long existed in criminal law, and is often a component to proving that your were acting in self defense. However, the duty to retreat has several exceptions, such as if you were attacked in your home. Many of these exceptions are part of state law, and they are either known as “Stand Your Ground” laws or as “Castle” (as in “your home is your castle”) laws.
West Virginia has a “Castle” law. Section 55-7-22 of the West Virginia Code states: “A lawful occupant within a home or other place of residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the home or residence or to terminate the intruder’s or attacker’s unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence.” The occupant may also use reasonable force if he or she “reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.”
So while West Virginia law does not require retreat within the home, the law does not go any further than that. By contrast, Florida’s “Stand Your Ground” law extends to the open street as well. Since the West Virginia law is more restricted, a Trayvon Martin situation could never happen here — or could it? If Trayvon Martin came to the door to sell chocolates for school, or because he had a flat tire, couldn’t a nervous home occupant shoot him and invoke the “Castle” law? He or she could claim to have “reasonably” apprehended that Martin was going to break in and kill everyone in the house. Even if an investigation cleared Martin of wrongdoing, it would be far too late.
We at the Wolfe Law Firm understand the reasons behind the “Castle” law. Many believe that you should not have to flee an attacker in your own home before using force against him. The “Castle” law has a long history, having first been established in 17th century English common law. At the same time, the “Castle” law, as well as other “Stand Your Ground” laws, makes hair trigger violent reactions much more likely. People frightened in their own homes might not actually be in physical danger, but they might perceive that they are and act accordingly, before they know what is really happening. Any West Virginia criminal defense attorney could tell you that many who seeming fit the profile of a criminal are often innocent. Yet when the law lets perceived victims shoot first and ask questions later, the innocent person ends up just as dead.