I’m starting what I hope to make a regular feature on this blog (or possible another—we’ll see how it goes). As a lawyer, I’m often dismayed, discouraged, and disheartened at the way the profession is depicted in popular media. But, the usual lawyer jokes aside, there’s also the matter of getting the details right, which can be difficult in that the “answer” is so often a matter of multiple circumstances that require a case-by-case analysis, i.e., basically, we fall back a lawyer’s favorite words: it depends.
In the interest of trying to clarify whatever aspects of the law might be helpful to writers, I arranged an interview with a Maryland attorney to discuss an issue that came up recently among friends who write crime fiction: Is there a requirement to retreat before using deadly force to defend oneself at home when attacked by another person?
The following is my interview with attorney Brad Shepherd.
The castle doctrine being generally known as a “no need to retreat” law. In states that have a castle doctrine, the general thrust of that law is that your home is your castle and you do not need to retreat while in your castle in order to defend your castle.
The laws on self-defense vary from state to state. Maryland does not follow the castle doctrine.
In Maryland, it hinges on whether or not your actions were reasonable, given the circumstances.
In order to convict the defendant of murder, the state has to prove that the defendant did not act in either 1) complete defense of their home or 2) partial defense of their home.
In Maryland, in order to prevail on a claim of complete defense of self-defense, five factors must be met.
1) an individual tried to enter your home;
2) you believe that this person intended to commit a crime that would involve an imminent threat of death or serious bodily harm;
3) you reasonably believed that this person intended to commit that crime,
4) you believed that the force that you used against that person was necessary to prevent imminent death or serious bodily harm;
5) you believed that that force was necessary.
If you have some, but not all of those, that’s imperfect self-defense, and you’re not guilty of murder, but you can be found guilty of manslaughter.
Read the full interview below:
Debbi (00:16): Hi everyone. Today I have with me Brad Shepherd. He’s an attorney up around Baltimore. You’re in Catonsville, is it?
Brad (00:24): My office is in Catonsville. I’m a lifelong Columbia resident. I handle cases all over the state of Maryland. There are 24 jurisdictions in the state of Maryland. I have defended clients in 22 of them. I am missing Garrett County, which is way out on the western edge of Maryland. And I’m also, I believe, missing Kent County, which is on the Eastern Shore. Very small counties. I go all over the state of Maryland.
Debbi (00:50): I’m impressed that you’ve practiced all over Maryland because each place is so different from county to county.
Brad (00:56): They can be. You kind of have to know which arguments or which defenses or which, you know, theories are gonna fly in certain jurisdictions and which jurisdictions are going to be more receptive to this argument versus that argument, because there are very, very different jurisdictions. You’ve got a case where you’re going to accuse a cop of lying. Be great if that case could be in Prince George’s or Baltimore City. You don’t necessarily want to accuse the cops of corruption on the Eastern Shore because they like their cops on the Eastern Shore.
Debbi (01:33): Yeah. There is a little bit of cultural, political stuff going on there, but that’s a little insider tip. So I learned about you through a webinar you gave, basically a presentation you gave on expungement, which I thought was an interesting topic and possibly something we can explore at some time, if anybody’s interested. But what I wanted to talk about now is self-defense, because a lot of times, you know, say somebody is at home sleeping and somebody breaks in, they grab a gun, this person comes right at them and they shoot them or whatever. And I just recall having a discussion with somebody who was in my writer’s group, who said, “I’m not sure you can actually do that. I’m not sure that you’re allowed to shoot a person in your home without trying to get out or something.” And I said, well, what if, I mean, if you’re caught off guard? So perhaps you can tell us about what the elements are there that have to be proved in order for a person to successfully say, “I didn’t commit murder because of this.”
Brad (02:47): Sure. Yeah. So first thing I’m going to say generally is that I am only licensed in the state of Maryland. I know nothing really about any other state’s laws. Before we kind of went live here, you’re asking me specifically about the castle doctrine and whether or not Maryland had one, and Maryland doesn’t have a castle doctrine. The castle doctrine being generally known as the “no need to retreat” law. In states that have a castle doctrine, the general thrust of that law is that your home is your castle and you do not need to retreat while in your castle in order to defend your castle. There is no castle law in Maryland. It’s more generally based, and anytime that you’re making a self-defense argument, you really have to just fall back on, is it reasonable given the circumstances?
In states that have a castle doctrine, the general thrust of that law is that your home is your castle and you do not need to retreat while in your castle in order to defend your castle. There is no castle law in Maryland. It’s more generally based, and anytime that you’re making a self-defense argument, you really have to just fall back on, is it reasonable given the circumstances?
Brad (03:47): So, for example, if in the example that, you know, you just woke up and someone was in your home, can you shoot that person? Well, the answer is unfortunately, maybe. And a lawyer’s favorite standby is it depends. If you’re accused of murder, you have certain defenses available to you. One of which is self-defense and in Maryland, there are jury instructions that are used, all trial lawyers use them. As I’m giving this answer, I’m looking down at what are the Maryland Criminal Pattern Jury Instructions, which would be read by the judge to any jury hearing this, this hypothetical case and say that if you’re accused of shooting someone because they were in your home and you argue self-defense, you don’t necessarily have a duty to retreat nor do you necessarily have the ability to just kind of shoot at will because you don’t have to retreat.
Brad (05:02): In Maryland, it hinges on whether or not your actions were reasonable, given the circumstances so voluntary manslaughter can occur, or can be the result of either a perfect or imperfect defense of your habitation, of your home and what it says in the pattern jury instruction that would be read to a jury by the judge is that voluntary manslaughter is an intentional killing that is not murder because the defendant act in partial defense of his or her home. In order to convict the defendant of murder, the state has to prove that the defendant did not act in either complete defense of their home or partial defense of their home. If the defendant acted in complete defense of their home, your verdict must be not guilty. If the defendant did not act in complete self-defense of their home, but acted in partial defense of their home, the verdict should be guilty of voluntary manslaughter and not guilty of murder.
Brad (05:59): So in order to be found, not guilty, you have to have acted in perfect self-defense, complete self-defense. And in order to be on the level in the state of Maryland and have a complete defense of self-defense, you have to have five factors present. Number one, you have to have an individual who tried to enter your home. And you believe that that person intended to commit a crime that would involve an imminent threat of death or serious bodily harm. That’s two number three, that you reasonably believe that that person intended to commit that crime,and that the defendant believed that the force that you used against that person was necessary to prevent imminent death or serious bodily harm, and that you believed that that force was necessary. So those are the five things. And if you have some, but not all of those, that’s imperfect self-defense, and you’re not found not guilty, but you’re not guilty of murder.
If the defendant acted in complete defense of their home, your verdict must be not guilty. If the defendant act did not act in complete self-defense of their home, but acted in partial defense of their home, the verdict should be guilty of voluntary manslaughter and not guilty of murder.
Brad (07:05): You’re guilty of manslaughter. So, for example, let’s say that a drunk person wandered into your home and was asleep on your couch. Well, you can’t reasonably believe that that person intended to commit a crime that would involve imminent threat of death or serious bodily harm, if he just broke into your house and fell asleep on the couch. So if you just shoot that person, because they’re in your house, you’re probably guilty of something, most likely manslaughter. But that’s not having anything to do with the castle doctrine, right? You’re not, you don’t have to retreat or not retreat. That really doesn’t factor in, in the state of Maryland. Going back to your hypothetical earlier, which is you wake up, there’s someone in your home, you see that they have a gun. Right there, that person has committed a crime, right?
Brad (08:00): The crime of burglary, they are in your home, without your permission intending to commit a crime. That crime could be just simple assault, the simple act of holding a gun in your hand, while in someone else’s home is probably an assault. So you know that they’re there to commit a crime. So we have elements number one and two, because they’ve entered your home. They intend to commit a crime that could involve the threat of death or serious bodily harm. They got a gun in their hands, certainly serious bodily harm could occur. You reasonably believe that they’re there to commit that crime. Well, sure. They’re holding a gun in their hand. And you believe that the force that you used on them was necessary to prevent harm, and you believe that it was reasonable given the circumstances. So in that circumstance, if you have a gun on your bedside table and you pick up the gun and you shoot them, I think that’s perfect self-defense.
Brad (08:58): I think that’s completely legitimate. And you would be found number one, I would hope that a person in that situation wouldn’t even be charged in the state of Maryland, but if they were, their lawyer would have a very, very good argument for perfect self-defense, which would result in a not guilty finding. You’d be found not guilty. So I hope that answers the question about castle doctrine versus not castle doctrine. There is no rule in the state of Maryland that says that you have to retreat, or that you don’t have to retreat. It really more hinges on whether or not your actions and the circumstances were reasonable.
Debbi (09:37): Yeah, it depends on the circumstances. So let’s say that this person breaks into the house and they’re high on PCP and they’re acting like crazy. And they come at you. That would be a reasonable circumstance, probably.
Brad (09:55): Sure. You know, by being in your home and then, you know, by coming at you, certainly that’s an assault, right? Because an assault is, it could be an unwanted touching or it could be placing someone in fear of an unwanted touching. If you and I are sitting right next to me, and I say, I’m going to punch you in the face. And then I pull my fist back, that could be an assault, even though I haven’t touched you because I’m placing you in fear of that assault. So if someone’s in your home and they rush you, they’re certainly placing you in fear of that assault. So the question would be, does that pose a risk of death or serious bodily harm? I don’t know. And that’s the question. And I could see a prosecutor, but I can also see a jury saying, absolutely they’re in your home. They went to attack you, you shot them. So that’s a more interesting hypothetical, I think, because it’s kind of toeing the line.
Debbi (11:06): It’s closer to the line,.
Brad (11:07): It’s closer to the line. Yeah. At the very least you’d have imperfect self-defense all day because they’re in your home, they went to attack you. The only thing that would be missing from your perfect self-defense is whether or not that is reasonably likely to result in death or serious bodily harm to you or to someone else.
Debbi (11:27): It seems like a very fact-specific kind of inquiry at that point.
Brad (11:32): In Maryland. It very much is. And I speculate myself that in states that have the castle doctrine, they were looking to remove that gray area, and say, someone’s in your home, license to kill. You know, and in many states, I believe that is the law is that you don’t have to do anything. They’re in your home, have at it. In Maryland, that’s not the case. So it’s not that you have to retreat or not retreat it’s that your actions have to be reasonable given the circumstances.
Debbi (12:12): That’s very interesting. What if somebody were invited into your home for a party, got roaring drunk and started behaving violently.
Brad (12:23): So, interesting. If they’re invited into your home they’re a guest. That doesn’t give them the right to commit other crimes, just because they’re a guest in your home. You know, certainly if you were to invite me over for dinner, and then I got into my head that I hated you, and I wanted to punch you in the face, I can’t just punch you in the face without any consequences, because I’m a guest in your home. Like, I mean, the laws still apply and if they were to become violent, you know, the question would become, okay, well now what’s reasonable. Right? Generally speaking the rule on self-defense is that you have to, you can only deal out the amount of force that you’re receiving. So for example, let’s say that that person spits in your face, right.
Brad (13:25): Does that merit going to your gun closet and, you know, going to your gun safe, pulling out a gun and shooting that person? No, not really. That’s overkill. That’s meeting the force that you’re receiving with a force that is much, much greater than what you were attacked with. If that person punches you in the face, then you can punch them back. Sure. If that person is 200 pounds heavier than you, and is pinning you to the ground and picks up a candlestick and is getting ready to bash your head in. Now we’re in a different story, right? You know, now we’re in a different scenario where, you know, the facts drive what’s reasonable. Generally speaking, though, you can be the victim of a crime and still be guilty of a crime yourself, if you defend yourself with force that is greater than what you’re receiving.
Brad (14:28): So, perfect example, you know, I walk into to, to a home and, you know, I’m there and you punch me in the face. So I go into my car and I pick up a baseball bat and I chase you around the house with it. Right. You’re guilty of assault because you hit me. And now I’m probably guilty of first degree assault because I’m chasing you around with a weapon. So again, it’s very fact-specific in the state of Maryland, at least in the state of Maryland. It’s very fact specific. Just because someone’s a guest in your home, though doesn’t give them free rein to do whatever the hell they want. They can still very much commit crimes while a guest in someone’s home.
So perfect example, you know, I walk into a home and, you know, I’m there and you punch me in the face. So I go into my car and I pick up a baseball bat and I chase you around the house with it. Right. You’re guilty of assault because you hit me. And now I’m probably guilty of first degree assault because I’m chasing you around with a weapon. So again, it’s very fact-specific in the state of Maryland, at least in the state of Maryland.
Debbi (15:13): Absolutely. And it’s really interesting because, I was doing some just random searching, I mean, just using regular search terms on Google. And I was thinking if you were the average intelligent writer, trying to understand these concepts, you would run into so many different interpretations that it might confuse you even within the state of Maryland. I’ve seen variations on what you just said that were just tiny, but some things are brought out a bit more than others, and it could leave you very confused. So I’m glad you said that, though. It really kind of comes down to fact-specific things and those elements in the jury instructions.
Brad (15:59): And, obviously, I mean, there’s a reason why lawyers exist is because, I mean, you know, defense attorneys are good at their job. The state’s attorneys are good at their job, and we can sit here and argue about, well, what was reasonable given the circumstances, and in cases that we can’t come to an agreement about whether or not a crime has been committed and whether or not a certain offer is appropriate. We go to trial and we either ask a judge if it’s a bench trial or a jury, if it’s a jury trial to settle the argument for us, and say, “Hey, I think that it was reasonable to pick up a baseball bat and hit this guy, because he outweighs me by 200 pounds, and I didn’t think that I was going to live if I just tried to have a fist fight with him.”
Brad (16:52): Right. And the state’s attorney could say, “No, you picked up a bat and that’s too dangerous. So we’re going to charge you.” Right. But I could say, no, no, that’s totally reasonable. If we can’t agree, we kick it to the judge or jury and say, you guys settle it for us. And that’s what happens in courtrooms, certainly all over the state, if not all over all over the world, on a daily basis. Judges or juries are asked to say, all right, well, what’s reasonable? What’s should have happened? What’s reasonable given these circumstances?
Debbi (17:23): Yes, absolutely. And I would emphasize what he said before, what Brad said before, about how the laws change from state to state. I mean, when it comes to criminal law at the state level, as opposed to federal crimes. That’s a whole separate topic,
Brad (17:42): It is. Federal law is a tough area of law to get involved in, most pertinently because I’m a solo practitioner. I’m in my office right now. I am the only one here. If someone calls my office, I’m the one who picks up the phone. And as I’m sure you can imagine, the federal government has a few more dollars at their disposal to investigate and prosecute cases. You know, when you, when you find yourself up against the full weight of the federal government, that’s the FBI, the DSS, DEA, if it’s a drug case, you know, the ATF, if it’s a gun case and the DOJ who handle all the prosecutions, they’re a monster. There’s a reason why the Department of Justice has something like a 95 to 97 percent conviction rate is because if they’re coming after you, your odds are very long at that point in time. State crime, I mean, you could be charged with something and it could be totally bogus. And honestly, and that couldn’t happen at the federal level, but generally speaking, if the feds are on to you, they have a pretty good idea that you did something not right.
Debbi (19:03): Well, this is very instructive, and I hope it’s helpful to other people who are writing about issues of this sort. And wondering about the answers to certain questions. But of course, this is not legal advice. I would not want you to rely on what Brad says as, you know, if you have a legal problem, you should see a lawyer. See Brad, for instance,
Brad (19:26): A hundred percent, a hundred percent. You know, I’m giving answers to anecdotes and hypotheticals at the moment. But the reality of any case, if it’s in the real world is that every case is different, even cases that seem on their face to be incredibly similar, have different variables, that you need a lawyer to actually dissect for you. Something as simple as which jurisdiction you’re in, or which judge or prosecutor you have, could make the difference between an outcome. So you need a lawyer to actually explain to you the differences between certain crimes, certain elements, the specifics of your case that you need to watch out for. So yeah, please don’t watch this and think to yourself that you’re an expert in all things self-defense or something like that, because, everything is fact-specific, as we’ve just said. And since that is the case, every case is different and you need to consult with a lawyer. If you are actually looking for legal advice,
Debbi (20:32): Yes, lawyers are important. And, on that note, I will just say, thank you for answering those questions, Brad. And I hope to have you back for more in future installments. And in meantime, I hope everybody has a really great day take care of yourself and I’ll talk to you later.
Watch the preview of our discussion of My Cousin Vinny, at the end of the video!
