Here's a little thing to blow some minds. BTW: I am not a lawyer and not giving legal advise. I am just pointing out the flow of case law and common law here to come to a logical conclusion.
My statement: The MA castle law is really NOT an affirmative defense.
First, the law.
Section 8A. In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.
It looks like an affirmative defense. Terraformer must be loopy this fine day.
Nope.
Now the definition of an affirmative defense.
A new fact or set of facts that operates to defeat a claim even if the facts supporting that claim are true.
Many states allow elements of the crime to be mitigated by affirmative defenses. But in doing so, they shift the burden of persuasion onto the defendant to prove they acted in self defense or to prove they were insane when committing said crime. MA case law since early on has required that ANY and ALL elements of any crime be proven beyond a reasonable doubt and that affirmative defenses that negate a claim must be proven as fact by the state as untrue or not applicable.
Now the definition of murder which is defined in common law (MA only specifies degrees which makes it a hybrid definition)
common law said:
The elements of common law murder are:
- the killing
- of a human being
- by another human being
- with malice aforethought
and malice is defined as one of the following
- Intent to kill,
- Intent to inflict grievous bodily harm short of death,
- Reckless indifference to an unjustifiably high risk to human life (sometimes described as an "abandoned and malignant heart"), or
- Intent to commit a dangerous felony (the "felony-murder" doctrine).
Aforethought is premeditation.
Assault and battery is defined in common law as well.
common law said:
Assault -- Common law definition
- The apparent, present ability to carry out;
- An unlawful attempt;
- To commit a violent injury;
- Upon another.
Assault with a deadly weapon -- Common law definition (plus definition of a deadly weapon)
Battery -- Common law definition
- an unlawful application of force
- to the person of another
- resulting in either bodily injury or an offensive touching.
There are two common themes in those definitions. Premeditation and lawfulness. Can self defense be claimed if you killed someone in a premeditated fashion? No, self defense is something that is happens at the time of the offense. If you thought out the killing of someone, as have the OP in his little scenario, then it ceases to be self defense. In other words, if the person was truly engaged in self defense, lawlessness and premeditation can not be proved. Additionally, there is no set of extra facts that defeats the claim because the claim is not provable.
Now, since MA uses common law definitions for those crimes, they also use common precedent and there self defense is considered a core human right and is therefore presumptively lawful. This was affirmed in Heller/McDonald when they affirmed that the second amendment is intimately tied to the core natural right of self defense.
To wit:
Heller said:
The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional.
Common Law Self defense is defined as:
Use of force is justified when a person reasonably believes that it is necessary for the defense of oneself or another against the immediate use of unlawful force. However, a person must use no more force than appears reasonably necessary in the circumstances.
Force likely to cause death or great bodily harm is justified in self-defense only if a person reasonably believes that such force is necessary to prevent death or great bodily harm.
And since self defense is a core human right it must be proved beyond a reasonable doubt because of this decision in Snyder v. Massachusetts (which is featured in a chain of decisions culminating in Patterson v. NY).
Snyder v. Massachusetts said:
The Commonwealth of Massachusetts is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness unless, in so doing, it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.
Therefore, it is up to the state to prove beyond a reasonable doubt that the person claiming to have acted in self defense did not do so.
Don't believe me?
Check out the approved jury instructions for self defense.
http://www.mass.gov/courts/courtsan...s/criminal/pdf/9260-defenses-self-defense.pdf
As a result, the ONLY thing needed in MA's castle defense is:
Better MA Castle law said:
Section 8A. There shall be no duty on a lawful occupant of a dwelling to retreat from any person unlawfully in said dwelling.
This here is functionally equivalent to what is there now and would have no impact on any case if this was magically changed to my abbreviated wording today. In my opinion, the way it is written today is making it easy for judges and ADAs to charge people on the day of absent thorough investigations. It is misleading but I suspect Governor King wrote it this way in order to slip it by the legislature. Most legislators don't know the law and they probably thought they were passing an affirmative defense self-defense statute but ultimately they were not. They passed an affirmative defense self defense statute that is overruled by governing case law and then added a SEPARATE clause at the end. That clause, I don't believe, is constructively tied to the "it shall be a defense" language. But even if one disagrees with my opinion there, it doesn't matter. MA criminal procedure is clear that the state MUST PROVE all facts and elements of the crime. Therefore, MA has no affirmative defense statute but simply a self-defense statute that exempts those engaged in self defense from having to retreat.
Think of it this way, affirmative defenses allow someone's culpability to change based on their state of mind. Self defense is not a state of mind, nor is it a justification. It negates elements of the crime thereby causing people to be INNOCENT of the crime and not simply just less culpable (as in the case of insanity defenses). I know this is splitting hairs but until we start talking about SD as a core human right, we will continue to play into the hands of those who seek to negate that right.
The simple act of claiming that SD is a "justification" puts one accused of it on the defensive. This is not insanity, this is a right.
My 2 cents. YMMV.
