Conflicting Rights in the Castle Doctrine by Matthew Benner

I. Introduction

“I’ve got a shotgun; do you want me to stop them?”[2] The words are those of Joe Horn, a Texas resident who called 911 after witnessing a robbery next door.[3] Moments later, he decided to act and went outside and shot both Hispanic robbers dead.[4] Horn was later brought before a Texas grand jury but was not indicted.[5] His actions made national headlines and reignited debates over self-defense and race relations.[6] As a result of the incident, he became a polarizing figure.  Some believe he is a hero—a community member who stood up to crime.[7] Others believe he is a criminal, and wonder whether he would have tried to stop the robbery or used deadly force if the burglars had been white.[8]

Recent expansions of the Castle Doctrine, which gives individuals the right to use deadly force on their property against an intruder regardless of reasonableness and the duty to retreat,[9] may have disturbing consequences for certain minority groups.  This is because there is evidence that the average American is more likely to consider the use of deadly force appropriate when faced with an African-American assailant.[10]

II. The Castle Doctrine

Castle Doctrine laws create a rebuttable presumption that the use of deadly force against an intruder in one’s home is legitimate, circumventing both the duty to retreat and the reasonableness requirements of the self-defense doctrine.[11] The rationale is that the home should be a place of safety, and as such, one should not have to retreat from it.

Although it was originally developed in the 16th century,[12] the Castle Doctrine is alive and well today.  In 2005, Florida passed its “Stand Your Ground” statutes after heavy lobbying by the National Rifle Association.[13] The Florida model has spread to other states in the South and Midwest.[14] In 2006, at least twenty-one states brought Castle Doctrine bills up for consideration and fifteen states adopted statutes.[15] Texas, where the Joe Horn incident occurred, recently enacted sweeping legislation that expands the Castle Doctrine to one’s workplace or vehicle or any other location where one has a right to be.[16] Horn was aware of the changes in Texas law, and believed that they condoned his action.[17]

III. Racial Bias

It is “well-documented” that defendants in ordinary self-defense cases have a tendency to emphasize the race of the assailant, if the assailant is black, in order to make the conduct seem more reasonable to jurors.[18] In other words, one is more likely to consider the use of deadly force appropriate when faced with a black assailant.[19] It follows that if expansion of Castle Doctrine laws increases the opportunity to use force, then there will be more misuse of deadly force due to racial bias.

The fallout surrounding the Joe Horn incident highlights this issue.  Horn, who is white, described the burglars as being “black” to the 911 operator.[20] After the grand jury cleared Horn in the shootings, Quanell X, a local minority rights activist, stated that, “there is not a snowflake’s chance in hell that an African-American man could do what Joe Horn did and get away with it. There is no longer a need for the criminal justice system, police, judge or jury. You can be all of that on your own.”[21] Quanell X has staged protests over the incident, and over the larger issue of whether the Castle Doctrine legalizes racially motivated violence.[22]

This is not the first time that a high profile use of self-defense laws has created racial tension.  Most notable is the Bernie Goetz incident in 1984,[23] which raised the question of whether race affected the jurors’ and Goetz’s belief as to what degree of force was reasonable.[24] Some critics have characterized the Geotz decision as “opening the hunting season on young black men.”[25] Similar accusations were made following the Joe Horn incident.[26]

IV. Contemporary Arguments Supporting the Castle Doctrine

Despite these criticisms, the Castle Doctrine enjoys substantial contemporary political and legal support.  News stories about violence, car-jackings, home invasions, and murders continually fuel Americans’ common desire to be able to defend themselves.[27] People feel safer with a gun in their home.[28] It allows them to be proactive in protecting themselves and reduces their fear of crime.[29]

The United Kingdom is sometimes used as an example of gun control gone wrong.  While United Kingdom has the strictest gun control laws of any democratic nation, violent crime there has steadily increased in comparison with the United States.[30] One is now six times more likely to be mugged in London than in New York City.[31] Some experts say this is because of wide gun ownership in the United States.[32]

V. Federalism as a Solution

What the Castle Doctrine presents, then, is a conflict between rights.  On the one hand, there are the rights of minorities who will disproportionately be affected by wider adoption of the Castle Doctrine.  On the other hand, there are the rights of individuals to protect themselves in the place where they ought to feel most secure.

Courts and legislatures usually deal with a conflicts-of-rights problem using a balancing approach.[33] The value in upholding each of the conflicting rights is compared and whichever is entitled to more weight prevails.[34] This begs the question, who should do the balancing with regard to the conflicting rights involved in the Castle Doctrine?

The United States, unlike other Western nations, employs a federal system of government.  This provides the opportunity to enact different policies serving different values in different localities.  When rights come into conflict, the citizenry in different states should be allowed to legislate according to their values so that they may affect the public policy that they, and not their neighbors, desire.  This is especially true in the case of the Castle Doctrine given the propensity of different voting groups to either highly value self-defense rights or highly value racial equality.

VI. Conclusion

Popular Castle Doctrine laws, which make it easier to use deadly force against an intruder in one’s home, have expanded in states across the nation.  However, the Doctrine has a dark side—the disparate impact it may have on racial minorities by legalizing violence that may partially be motivated by racial misunderstanding.  This conflict between individual rights is difficult to resolve, but federalism provides at least a partial solution by allowing the citizenry of different states to enact legislation that best serves their values.

[1] J.D. Candidate, Cornell Law School, 2011.

[2] Ralph Blumenthal, Shooting Tests Limits of New Self-defense Law, Pasadena J., Dec. 13, 2007,

[3] See id.

[4] See id.

[5] Adam Ellick, Grand Jury Clears Texan in the Killing of 2 Burglars, N.Y. Times, July 1, 2000,

[6] See, e.g., id; Man Kills Suspects While on Phone with 911, CBS, [hereinafter Man Kills Suspect While on Phone]; Bill O’Reilly, The Deaths of Two Illegal Aliens near Houston, Fox News,,2933,315477,00.html.

[7] See Marc Chamot, Texas Man Joe Horn a True HERO?, Marc Chamot Rep. (Dec. 6, 2007),

[8] Jennifer Leahy, Protest over Slain Burglars takes a Confrontational Turn, Houston Chron., Dec. 3, 2007,

[9] Denise M. Drake, 39 St. Mary’s L.J. 573, 584 (2007).

[10] See Jody D. Armour, Race Ipsa Loquitur: Of Reasonable Racists, Intelligent Bayesians, and Involuntary Negrophobes, 46 Stan. L. Rev. 781, 783 (1994).

[11] See id.

[12] See Andrea A. Amoa, Critical Analysis of the Joe Horn Shootings and the Castle Doctrine, 33 Thurgood Marshall L. Rev. 293, 293 (2008).

[13] Christine Catalfamo, Stand Your Ground: Florida’s Castle Doctrine for the Twenty-First Century, 4 Rutgers J. L. & Pub. Pol’y 504 (2007).

[14] 16 States Adopt ‘Stand Your Ground’ Laws Authorizing Use Of Deadly Force, Bnet, Aug. 11, 2006,

[15] See id.

[16] See Tex Penal Code Ann. § 9.31.

[17] Man Kills Suspects While on Phone, supra note 6.

[18] Jody D. Armour, supra note 10.

[19] See id.

[20] Blumenthal, supra note 2.

[21] See Man Kills Suspects While on Phone, supra note 6.

[22] See Leahy, supra note 8.

[23] People v. Goetz, 68 N.Y.2d 96 (1986).

[24] Stephen L. Carter, When the Victims Happen to be Black, 97 Yale L.J. 420, 425 (1988).

[25] Id.

[26] Rack Jite, Local Pasadena, Texas Hero Joe Horn Blows away Two Unarmed Hispanics, Blog (Nov. 19, 2007),,-Texas-Hero-Joe-Horn-Blows-away-2-Unarmed-Hispanics.html.

[27] See Drake supra note 9, at 588.

[28] See id.

[29] See id.

[30] Joyce L. Malcolm, Why Britain Needs More Guns, BBC News, Jan. 15, 2003,

[31] Id.

[32] See id.

[33] See Laura Long, Slapping Around the First Amendment: An Analysis of Oklahoma’s Anti-SLAPP Statute and Its Implications on the Right to Petition, 60 Okla. L. Rev. 419 (2007).

[34] See id.