Our legislature has continued to take the ridiculous approach of using a fire axe to open an unlocked door as opposed to merely using a more nuanced and slight adjustment to correct a perceived flaw in the current law. Before we discuss what the new law will do, we need to first attempt to understand what it’s trying to correct.
As it stands, self defense is an issue in the state of North Dakota because the law is nebulous as to what constitutes self defense. It’s unclear whether or not duty to retreat exists even in the home.
As a result, if your home is being invaded, it is unclear if you must first attempt to hide from the robber, call the police are clear to fire whenever able. This creates great difficulty in the law, since proof is essentially impossible, and creates a problem when the armament of the assailant is unknown.
As an example, if an unarmed nutjob breaks into your home and tries to take your TV in the middle of the night, and you attempt to stop him with your fire arm, it is debateable whether it is considered self-defense or not.
Under the castle doctrine it’s self-defense. The second an invader enters your home, you are allowed to assume he is armed and have no duty to retreat, but under current law it’s very vague because you have not attempted to retreat, and have rather proceeded to go on the offensive.
This is just the first of two problems in current self-defense laws in our state. The second comes to who is the aggressor and who is the defender.
Let’s go back once again to our theoretical scenario, only you have retreated and he continues to advance (you have knowledge that he is armed). The second he attempts to retreat, you could theoretically be no longer able to utilize your weapons for self-defense, and you would become the accidental aggressor.
In the heat of the moment this creates great issues. For example, if he sees you with a shotgun and moves back behind the wall, he has temporarily retreated and you could not shoot him as he is ducking behind the corner, but could once he peeks his head back out to shoot at you. As a result, where and when you can defend yourself becomes very questionable at best, arbitrary at worst, and even as he retreats, there is nothing stopping him from quickly turning to engage in a firefight. This means the homeowner could shoot him accidentally in the back or as he was retreating and no longer be protected by self-defense laws.
Once again, this runs contrary to the castle doctrine in a far more problematic way than the unarmed wackjob, as the invader has the permanent advantage and is more protected under law than the person whose home is being invaded or robbed. The state legislature with all do credit, recognized this potential issue and decided to write a new law expanding the principles of the castle doctrine, but perhaps went a bit too far.
As it stands right now, being written, you are allowed to engage in direct fire with no duty to retreat (so far so good) regardless of the positional orientation of the criminal, (again good) but it has greatly expanded the definition of what is considered your castle and what constitutes an invader/intruder.
Unfortunately, the law uses the words “reasonable belief,” which basically means if you would have any reason for such a belief, you can use lethal force.
As an example of things which would now be covered as an invader, who you could potentially be free to shoot: a high-schooler egging your house, a disgruntled ex-girlfriend keying your car, a person painting graffiti on a building you own, an illegal solicitor trying to sell you pots and pans, a person who has swerved off the road and ran over some of your corn or soybeans or a person attempting to escape an assailant of their own who is running through your property.
While we can debate whether or not these people are criminals and what the punishment should be for these people, we can all agree shooting them with a shotgun is not self defense. This is yet another classic example of what happens when ideas get too extreme, they start off well-intentioned and with the potential to do great good, but as a result of negligence, incompetence or an overly literalist interpretation of a word (in this case invader/intruder), we are left with another bizarre law that does more harm than good.
I hope I don’t have to write another one of these articles this semester, and our legislators begin to proofread their laws for unintended consequences as opposed to relying on people such as myself and Rob Port to point out the problems with them days before a vote. This is once again indicative of a greater need for legal understanding within our legislature, and the return of a “look before you leap” mentality, greatly lacking in our current political climate.
Dave Owen is an opinion writer for the The Dakota Student, he can be reached at [email protected]