There is an interesting case out of Leroy, Alabama where Nathanial Johnson, 68, is facing an investigation after subduing and trying a burglar to a tree.  By the time, he returned with the police, the man, Cleveland Jones Gully, 31, was dead and Johnson could go from the victim to the accused in a criminal case.

Johnson admitted that he was hiding in waiting for the burglar after being the victim in prior burglaries.  He parked his car at a neighbor’s house and turned off the light.  When someone knocked around midnight, he did not answer.

Johnson’s mobile home about 60 miles north of Mobile.

The man went to the back of the house and broke the lock.  Johnson sprang out of hiding and tackled the man, who fell off the back steps.  Gully lives nearby and has a history of burglaries.  He then put duct tape over the man’s mouth and tied him to a tree with a mix of electrical wire, rope from a clothesline and masking tape. He then went to his neighbor’s house to contact the police and insists that Gully was alive when he left him.  However, he was very much dead when he returned with the police.

Washington County Sheriff Richard Stringer says that he does not believe that there was any intent to harm and that Johnson merely wanted to capture and hold Gully.

Johnson was held for 72 hours but not charged pending an autopsy on Gully.
This falls into a long controversial area of torts. The common law does not allow the use of force calculated to cause serious bodily injury or death in protection of property. In famous cases like Bird v. Holbrook, 4 Bing. 628, 130 Eng. Rep. 911 (1825), courts have ruled that “[n]o man can do indirectly that which he is forbidden to do directly.” Not only are such devices viewed as immoral (because human life is more valuable than property), but dangerous because such devices cannot tell the difference between friend and foe. The case however also has been cited for the long-standing rule that no property is viewed as more valuable than a human life. That does not mean you cannot take steps to protect your property and a case of protection of property can become protection of self (with the right to use higher levels of force) when the suspect resists or attacks.

However, there are Castle Doctrine laws or Make My Day laws. I have been a long critic of Castle Doctrine laws. The title refers to the old adage that “a man’s home is his castle,” which is not a common law doctrine of criminal law or torts but rather an aspirational statement. The Castle Doctrine is a generally a reference to the modern trend of legislatively empowering homeowners to use lethal force solely on the basis of a home invasion.

Under the common law, there was not “fear of prosecution or civil action for acting in defense of themselves and others” so long as you acted in reasonable self-defense or even “reasonable mistaken self-defense.” In the case of Courvoisier v. Raymond, 23 Colo. 113 (1896), a man chased a group out of his home only to fire when a man approached him outside his home from the stone-throwing mob. It turned out to be a deputy sheriff but the court found that Courvoisier could rely on reasonable mistaken self-defense.

The common law has long offered ample protections even for reasonable mistakes. These laws are based on an urban legend that people are routinely prosecuted for defending their homes from intruders. The laws have produced perverse results as in the infamous case of Tom Horn in Texas. Yet, the popularity of these laws have spawned “Make My Day Better” laws that extend the privilege of lethal force to businesses and cars. Montana’s law had been invoked in workplace shootings.

Alabama is a castle doctrine state and the law is included below. Johnson’s laying in wait is not a violation of the conditions of the law nor is his initial use of force. The question will be whether, after subduing Gully, Johnson used the tape or restraints to effectively smother or strangle Gully. This would turn on a question of intent, which would likely be hard to prove. The law gives Johnson significant protections and the sheriff’s public statement undermines allegations of intentional harm. There could also be a question of preexisting conditions that would be unknown to Johnson.

Section 13A-3-23
Use of force in defense of a person.
(a) A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he or she may use a degree of force which he or she reasonably believes to be necessary for the purpose. A person may use deadly physical force, and is legally presumed to be justified in using deadly physical force in self-defense or the defense of another person pursuant to subdivision (4), if the person reasonably believes that another person is:
(1) Using or about to use unlawful deadly physical force.
(2) Using or about to use physical force against an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling.
(3) Committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree, forcible rape, or forcible sodomy.
(4) In the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered, a dwelling, residence, or occupied vehicle, or federally licensed nuclear power facility, or is in the process of sabotaging or attempting to sabotage a federally licensed nuclear power facility, or is attempting to remove, or has forcefully removed, a person against his or her will from any dwelling, residence, or occupied vehicle when the person has a legal right to be there, and provided that the person using the deadly physical force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring. The legal presumption that a person using deadly physical force is justified to do so pursuant to this subdivision does not apply if:
a. The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;
b. The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used;
c. The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
d. The person against whom the defensive force is used is a law enforcement officer acting in the performance of his or her official duties.
(b) A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground.
(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force if:
(1) With intent to cause physical injury or death to another person, he or she provoked the use of unlawful physical force by such other person.
(2) He or she was the initial aggressor, except that his or her use of physical force upon another person under the circumstances is justifiable if he or she withdraws from the encounter and effectively communicates to the other person his or her intent to do so, but the latter person nevertheless continues or threatens the use of unlawful physical force.
(3) The physical force involved was the product of a combat by agreement not specifically authorized by law.
(d) A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.
(e) A law enforcement agency may use standard procedures for investigating the use of force described in subsection (a), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force used was unlawful.
(Acts 1977, No. 607, p. 812, §610; Acts 1979, No. 79-599, p. 1060, §1; Act 2006-303, p. 638, §1.)

Kudos: Michael Barry