‘Castle law’: right to use force, does it include killing the intruder?

2013-06-02T01:00:00Z ‘Castle law’: right to use force, does it include killing the intruder?By John Grant Emeigh of The Montana Standard Montana Standard

That old adage that a person’s home is their castle is something that Montana law treats as sacred.

The lengths that a person can go to protect one’s home stretches much further than what one can do on a public street. This goes as far as using deadly force inside the home, even at the slightest hint of harm.

It’s sometimes referred to as Montana’s “castle law,” which essentially gives people the right to use deadly force to protect themselves or anyone else inside their homes. Butte Chief Deputy County Attorney Samm Cox said it’s been common law in Montana since the beginning of statehood that people can protect their homes by any means necessary.

“In Montana, you don’t have to retreat and you don’t have to call the police,” Cox said.

This principle was applied recently when an East Helena man shot and killed an intruder he found in his home. After an investigation, law enforcement determined James Stiffler, 66, was within his rights to shoot Henry Thomas Johnson III, 37, of Helena.


While the law concerning the defense of one’s home may have been coin of the realm for more than a century, it wasn’t until 2009 that this distinction was made into statutory form. It’s this law that Cox explained puts clear distinctions between legally defending one’s home and defending one’s self on the street.

A person who finds an intruder in their home has the right to use deadly force to protect themselves or anyone else in the residence by having “reasonable belief” that harm is about to be done, Cox explained. Example: Finding a masked man in your home in the middle of the night with some kind of object in his hand could be enough reasonable belief that you are in danger. It would be within your rights to shoot this masked intruder without any legal repercussions.

Reasonable belief doesn’t apply on the street, according to Montana law. If people use deadly force to protect themselves while walking down Main Street, Cox explained that they better be able to prove there was an “imminent threat” of major injury or death.

If a person is in his or her home, even a misdemeanor assault is enough to warrant a deadly force.

Cox explained that the distinction is there, because Montana law views the home as hallowed ground.

“The way the law looks at it is that you should feel safe in your home. That’s a place that no one should be allowed to invade,” Cox said.

Outside the home, a person must prove a justifiable use of force.


In 2008, Jason Schmidt was sentenced to 40 years in the stabbing death of a man during a fight outside a Butte bar. Schmidt’s attorneys tried to argue that Schmidt was acting in self defense. The defense argued Schmidt believed his life was in danger, because he was being beaten by a stronger man who was on top of him, so Schmidt stabbed him several times. James Correia died from the stabbing.

Cox, who prosecuted that case, said the jury didn’t find Schmidt had cause to use deadly force.

“The jury decided that you don’t bring a knife to a fist fight,” Cox said.

A person can use deadly violence to save themselves or the life of another person while one the street.

“I’m a big proponent for justifiable use of force and self defense; it’s a God-given right,” Cox said.

Montana law does require a thorough investigation if deadly force is used inside the home.


Butte police Capt. George Skuletich said it’s his department’s policy to investigate any kind of home defense fatality.

“You treat everything like a crime scene until it isn’t (a crime scene),” he said.

Evidence would be collected, all parties interviewed and stories would be checked out. Police want to make sure that this was a legitimate home defense scenario and not just two buddies arguing over a hand of poker that escalated into violence.

As an officer of the law, Skuletich says human life is more valuable than property and would prefer people avoid deadly force.

“If you can get out of that situation (without resorting to violence), then do it,” he said.

— Reporter John Grant Emeigh may be reached via email at john.emeigh@lee.net or phone at 496-5511. Follow him at Twitter.com/@johnemeigh.

Copyright 2015 Montana Standard. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

(13) Comments

  1. GlenHorn50
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    GlenHorn50 - June 11, 2013 7:36 am
    Certainly all persons involved in defense of their lives are JUST , in stopping the threat . Extending the Castle doctrine is interesting and further bringing a CONTROVERSIAL CASE , as IN SCHMIDT vs COX is even furthered as in Interest to JUST and PROPER Adjudication. What comes to mind is and should be defined properly, is the Procedural original charging Document ; to whit , DELIBERATE HOMICIDE. To this CHARGE . Schmidt was found INNOCENT. What transpired after that point IS ? ? ? very ? ? ? See Demontiny vs Montana...
  2. Elklover
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    Elklover - June 05, 2013 2:53 pm
    Interesting. I've never thought of it that way. One wouldn't think that trying your best to avoid taking someone's life would be frowned upon like that. Center of mass it is.
  3. jhburton
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    jhburton - June 05, 2013 9:41 am
    We are definitely on the same page, though.
  4. jhburton
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    jhburton - June 05, 2013 9:40 am
    I understand what you're saying.

    I'm simply saying that you very likely might end up seeing yourself prosecuted for failing to be in compliance with the statute by taking that course of action.

    If one is going to say that one is in fear for one's life, then attempting to wound a suspect by aiming at a part of his/her body in order to attempt to incapacitate him/her doesn't jive with being in fear for one's life.

    Police officers aren't legally empowered to use deadly force to wound.

    I realize a civilian isn't a police officer, but he (a civilian) would have to answer the same basic question of "Were you in fear for your life?"

    If you feel you don't need to kill the alleged suspect, then you can't possibly be in fear for your life.

    And, let's say you take the course of action of wounding the alleged suspect and he dies from his injury.

    If you weren't in fear for your life as a result of the alleged suspect's actions at the time, but still deploy deadly force by shooting only to would him and he (alleged suspect) dies as a result of the injury, then you very well might find yourself prosecuted.

    It's just how the law works.

  5. Elklover
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    Elklover - June 05, 2013 8:18 am
    I think you misunderstand my statement. My "shoot to wound" wasn't to teach a lesson, it was meant only to "prevent an assault upon the person". I don't think they will be able to do much to you with a .45 cal. slug in their knee. You don't have to kill someone to use necessary force to prevent an assault. All I meant was that if it came down to it, and the opportunity presented itself to wound the intruder instead of kill him/her, I would try to take that route.

    "(2) A person justified in the use of force pursuant to subsection (1) is justified in the use of force likely to cause death or serious bodily harm only if:" - Sounds to me like this would cover 'kneecapping' someone as long as either (a) or (b) were met. Which is what I've been saying all along. I think we are on the same page here.

  6. jhburton
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    jhburton - June 04, 2013 12:47 pm
    45-2-101. General definitions. Unless otherwise specified in the statute, all words must be taken in the objective standard rather than in the subjective, and unless a different meaning plainly is required, the following definitions apply in this title:

    (24) "Forcible felony" means a felony that involves the use or threat of physical force or violence against any individual.
  7. jhburton
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    jhburton - June 04, 2013 12:44 pm
    45-3-103. Use of force in defense of occupied structure. (1) A person is justified in the use of force or threat to use force against another when and to the extent that the person reasonably believes that the use of force is necessary to prevent or terminate the other person's unlawful entry into or attack upon an occupied structure.

    (2) A person justified in the use of force pursuant to subsection (1) is justified in the use of force likely to cause death or serious bodily harm only if:

    (a) the entry is made or attempted and the person reasonably believes that the force is necessary to prevent an assault upon the person or another then in the occupied structure; or

    (b) the person reasonably believes that the force is necessary to prevent the commission of a forcible felony in the occupied structure.

    I don't believe shooting someone in the kneecap is a viable alternative, Elklover.

    The statute doesn't give one permission to "shoot to wound."

  8. Elklover
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    Elklover - June 04, 2013 11:16 am
    If you pull a gun on someone in your home, you better be prepared to use it. Once you pull a gun on a home intruder, if he/she doesn't turn and run your life is immediately in danger. If you intend to just scare the intruder and they call your bluff, you are in a real predicament. The ball is now in the intruder's court, and there's a decent chance that your gun might be in his/her hands shortly.

    If you break into my home, you will see the dangerous end of my .45. If you don't immediately turn and run, you will get one in the knee cap, or if I feel that the situation has come down to either your life or my life, you will get two in the chest. This is how it should be.
  9. Slicemaster19
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    Slicemaster19 - June 03, 2013 8:36 pm
    Wait, somehow there seems to be a misunderstanding going on here. Castle Law (or Castle Doctrine) is not about defending your home, it is about DEFENDING YOURSELF while you are in your home.

    The doctrine is that if someone is in your home, without your permission, you have a reasonable right to believe they mean to do you or someone else harm. Now maybe this intruder picked up a flat screen TV or some jewelry while he was in there, and you CAN'T shoot him for that. But just because he has something in his hands also doesn't mean he is not a danger to you still. You CAN shoot him because you are in fear for your life or of grave bodily harm.

    If you own a gun, you need to make the choice WAY BEFORE someone breaks in about what you intend to do. If someone in in your home without permission, and in any way you feel you are threatened, you owe this intruder NOTHING and he should have thought about that before he broke in. However, if you stumble across him without your gun, run to retrieve it and shoot him as he is headed out the back door, you are probably going to jail.
  10. ButteAmerica
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    ButteAmerica - June 03, 2013 1:50 pm
    Leave it to JOhn Amy to stir the pot and rile up controversy just to boost readership.
    True Montanans understand the notion of Castle Doctrine and why it is important to retain.
    Transplants and former residents of more liberal states may subscribe to the "property is less than important than life" but to those of us who make a living with our property, the theft of our equipment can become a life or death matter for our family.
    There is an unwritten understanding that begins at the threshold of another's home, that crossing without permission implies risking ones own life in the commission of a violation against the owner.
    The laws are fin as-is. I applaud and support anyone who defends their home, property, family, or friends, by immediately and affirmatively ending the discussion of "should he just let it happen?" and am offended by this newspaper's attempt of twisting the core values of Montanans with the hurt feelings of predatory criminals who don't respect others anyway.
  11. trainer
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    trainer - June 02, 2013 9:00 am
    Kudos for Montana and all Montanan's for being able to defend themselves, their families and property. We all work very hard what we have and we should feel safe in our homes (castles). If anyone should come to bring harm to my family or I or destroy our property, we will defend it as needed.
    I have an idea, if you do not want to get shot, don't break into peoples homes, (castles).
    Butte life..
  12. srvdmytym
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    srvdmytym - June 02, 2013 8:51 am
    OK.....let me see if I can figure this out....some jerkwad either breaks into my home in the dark of the night or intrudes into my home at some other point....either case; he/she is not invited for tea! This individual has made a choice .....yes....they have made a choice, once again, to break the law. Now, I will make a choice...1. they are here illegally to rape, pillage, steal and murder....2. Their reason for being in my home illegally does not come into play....they are there illegally! 3. Now, I will make a choice....and it ain't gonna be good for the law breaker! 4. Chances are, if I'm physically able, Mr./Ms. lawbreaker are gonna "ride the lightening!"....and will leave my property in a bag! Quite honestly, i'm tired of the whining, wimping, namby pamby B.S. of the liberals who want everyone to believe that the problems of the world are my fault! It's about choices folks....and if you choose to break into my home and i'm here....you have made a real bad choice! Semper Fi!
  13. elkguy
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    elkguy - June 02, 2013 8:49 am
    "Our houses are protected by the good Lord and a gun,,," Laws like this are the only thing keeping us all from being victims in our own homes. Some states allow an injured intruder to sue a homeowner for injuring them during the course of protecting himself or his family. Now that's some stupid obama/biden bs there.

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