Delaware Castle Doctrine and Stand Your Ground Laws

Delaware Castle Doctrine and Use of Force

Delaware imposes a duty to retreat before deadly force outside your dwelling and your place of work. If you know you can avoid the need for deadly force with complete safety by retreating, the deadly force is not justified. That is the plain command of 11 Del. C. § 464(e)(2). Delaware is not a stand your ground state in the way that phrase is used elsewhere. Section 464(e)(2) writes exactly three exceptions into that duty, lettered a. through c.: your dwelling, your place of work, and force used by a public officer or by a person assisting an officer, making an arrest, or preventing an escape. None of the three runs to any place you happen to have a right to be.

The rules live in Title 11, Chapter 4. Section 461 is the gateway: justification "is a defense" in "any prosecution for an offense," and the sections that follow in Chapter 4 supply the definitions.

When deadly force is justified at all

Ordinary force is justifiable when you reasonably believe it is immediately necessary to protect yourself against the use of unlawful force by the other person on the present occasion (§ 464(a)).

Deadly force is narrower. Under § 464(c), it is justifiable only if you reasonably believe it is necessary to protect yourself against one of four things:

• Death
• Serious physical injury
• Kidnapping
• Sexual intercourse compelled by force or threat

Property loss is not on that list, and neither is fear alone.

Non-deadly force carries no retreat duty. Section 464(b) reads: "Except as otherwise provided in subsections (d) and (e) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as the person reasonably believes them to be when the force is used, without retreating, surrendering possession, doing any other act which the person has no legal duty to do or abstaining from any lawful action." Subsections (d) and (e) are the only carve-outs from that permission. Subsection (e), the one that carries the retreat limit, opens "The use of deadly force is not justifiable under this section if," so it reaches deadly force only (§ 464(e)). The split follows: the retreat duty described below applies to deadly force, while § 464(b) states the opposite rule for non-deadly protective force.

For anyone who is not a law enforcement officer acting officially, "reasonably believes" means "holds a belief that is reasonable from the viewpoint of a reasonable person in the defendant's situation under the circumstances" (§ 471(e)(1)).

The retreat rule, stated exactly

Everything in this part is about deadly force. Section 464(e)(2) removes the deadly force justification when you know the necessity of using deadly force can be avoided with complete safety by any of three things: retreating, surrendering possession of a thing to a person asserting a claim of right to it, or complying with a demand that you abstain from an act you are not legally obligated to perform.

The subsection lists three exceptions, and they are written narrowly. Here they are in full:

• Dwelling. "The defendant is not obliged to retreat in or from the defendant's dwelling" (§ 464(e)(2)a.). Subparagraph a. carries no initial aggressor limit of its own. Do not read that as a blanket permission at home, because § 464(e)(1) is a separate bar that is tied to no place at all: deadly force is not justifiable if "The defendant, with the purpose of causing death or serious physical injury, provoked the use of force against the defendant in the same encounter." Being freed from the duty to retreat in your dwelling under § 464(e)(2)a. does not free you from § 464(e)(1).
• Place of work. "The defendant is not obliged to retreat in or from the defendant's place of work, unless the defendant was the initial aggressor" (§ 464(e)(2)b.). That initial aggressor carve-out is attached to the workplace exception and does not appear in the dwelling exception.
• Officers, arrests, and escapes. "A public officer justified in using force in the performance of the officer's duties, or a person justified in using force in assisting an officer or a person justified in using force in making an arrest or preventing an escape, need not desist from efforts to perform the duty or make the arrest or prevent the escape because of resistance or threatened resistance by or on behalf of the person against whom the action is directed" (§ 464(e)(2)c.). By its terms it reaches officers, those assisting them, and arrests or escapes. It says nothing about force used in self-protection.

Read the trigger carefully. The duty attaches when you know retreat can be made with complete safety. Both words are doing work. Do not treat that as a loophole to plan around. If a safe exit is available and you know it, the deadly force justification is gone outside the three § 464(e)(2) exceptions above.

Section 471(b) defines "dwelling" as "any building or structure, though movable or temporary, or a portion thereof, which is for the time being the defendant's home or place of lodging." The operative nouns in that definition are "building or structure." Whether a camper, a motorhome, or a hotel room qualifies turns on those words and on whether the place is your home or place of lodging at the time. Chapter 4 sets out no separate vehicle exception and does not say whether an ordinary passenger vehicle is a "building or structure" under § 471(b), so do not assume your car carries dwelling status.

What counts as deadly force

Section 471(a) defines deadly force as force used with the purpose of causing, or which you know creates a substantial risk of causing, death or serious physical injury, and it expressly includes a chokehold as defined in § 607A. It adds that "purposely firing a firearm or projectile weapon in the direction of another person or at a vehicle in which another person is believed to be constitutes deadly force."

The same subsection carves out a threat: "A threat to cause death or serious bodily harm, by the production of a weapon or otherwise, so long as the defendant's purpose is limited to creating an apprehension that deadly force will be used if necessary, does not constitute deadly force." A threat that is not deadly force is not subject to the § 464(e) retreat limit, because § 464(e) reaches only "the use of deadly force."

Section 469: the occupant and intruder defense

Delaware has a separate provision aimed at the home. Section 469, captioned "Justification - Person unlawfully in dwelling," reads:

"In the prosecution of an occupant of a dwelling charged with killing or injuring an intruder who was unlawfully in said dwelling, it shall be a defense that the occupant was in the occupant's own dwelling at the time of the offense, and:

1. The encounter between the occupant and intruder was sudden and unexpected, compelling the occupant to act instantly; or
2. The occupant reasonably believed that the intruder would inflict personal injury upon the occupant or others in the dwelling; or
3. The occupant demanded that the intruder disarm or surrender, and the intruder refused to do so."

The occupant must be in the occupant's own dwelling, and at least one of the three circumstances must be present. Section 469 sits alongside § 464 rather than replacing it.

Protection of property

Section 466(a) allows force you reasonably believe is immediately necessary to prevent criminal trespass or burglary "in a building or upon real property" in your possession, to prevent entry upon real property in your possession, or to prevent theft, criminal mischief, or any trespassory taking of tangible, movable property in your possession. All three branches reach property "in the possession of another person for whose protection the defendant acts" as well as property in your own possession.

Section 466(b) adds a further requirement. You must first request the person to desist, unless you reasonably believe the request would be useless, that making it would be dangerous to you or another person, or that substantial harm would come to the property before it could effectively be made.

Deadly force for property is tightly limited by § 466(c). It is justifiable only if you reasonably believe either:

1. The person is attempting to dispossess you of your dwelling otherwise than under a claim of right to its possession; or
2. The person is attempting to commit arson, burglary, robbery, or felonious theft or property destruction, and either (a) that person had employed or threatened deadly force against or in your presence, or (b) under the circumstances existing at the time you reasonably believed that force other than deadly force would expose you, or another person in your presence, to the reasonable likelihood of serious physical injury.

Prong 2 is a felony attempt plus one of two aggravating conditions. A burglary standing alone does not satisfy it.

Civil immunity, and its limit. Section 466(d) provides that where a person has used force for the protection of property and has not been convicted of any crime or offense connected with that use of force, that person "shall not be liable for damages or be otherwise civilly liable to the one against whom such force was used." That immunity is written for force used for the protection of property. Section 464, the self protection section, contains no comparable civil immunity clause.

A defense, not immunity from prosecution. The § 466(d) bar is narrow. It covers only force used to protect property, only where the person was not convicted of a connected offense, and it bars civil liability, not prosecution. Chapter 4 creates no pretrial immunity and no immunity hearing for a person who used force in self-protection. What the chapter gives you is a defense raised in a criminal case: § 461 provides that justification "is a defense" in "any prosecution for an offense," and § 469 uses the same construction, "it shall be a defense." Section 475 is captioned "Immunity as an affirmative defense" and will surface if you scan Chapter 4 for that word, but it is about something else. It makes it an affirmative defense "that the accused was granted immunity from prosecution for that offense by the Attorney General or a Deputy Attorney General or by court order pursuant to § 3506 of this title." That is immunity conferred by a prosecutor or a court, not immunity arising from the fact that force was justified.

Defending another person

Under § 465(a), you may use force to protect a third person when all three are true: you would have been justified under § 464 in using that force to protect yourself against the injury you reasonably believe is threatened to that person; that person would have been justified in using the protective force under the circumstances as you reasonably believe them to be; and you reasonably believe intervention is necessary.

The retreat rules shift here. Under § 465(b), even where you would have been obliged under § 464 to retreat, surrender a thing, or comply with a demand, you have no obligation to do so before using force to protect another, unless you know you can thereby secure the complete safety of the other person. Under § 465(c), if the person you are protecting would have been obliged to retreat or comply, you must try to cause that person to do so first, but only if you know complete safety can be secured that way. Under § 465(d), neither of you is obliged to retreat when in the other's dwelling or place of work to any greater extent than in your own.

Limits that defeat the defense

• Provocation. Deadly force is not justifiable if you, with the purpose of causing death or serious physical injury, provoked the use of force against yourself in the same encounter (§ 464(e)(1)).
• Resisting arrest. Force is not justifiable to resist an arrest you know or should know is being made by a peace officer, whether or not the arrest is lawful (§ 464(d)).
• Reckless or negligent belief. Under § 470(a), if you are reckless or negligent in forming the belief that force was necessary, or in acquiring or failing to acquire knowledge material to justifiability, the justification is unavailable in a prosecution for an offense where recklessness or negligence suffices for culpability. Section 470(b) does the same where you recklessly or negligently injure or risk injury to innocent persons. Both subsections of § 470 are written to apply to "§§ 462-468 of this title." That range stops short of § 469, so by its terms § 470 does not reach the § 469 occupant defense.
• Excluded rationales. Under § 472(a), a defendant is not justified in using force based on the discovery of, knowledge or belief about, or the potential or actual disclosure of the victim's actual or perceived sexual orientation, sex, gender, gender identity, or sex assigned at birth.

Two practical notes

Delaware's CCDW training must include "Instruction regarding the laws of this State pertaining to the use of deadly force for self-defense" (11 Del. C. § 1441(a)(3)i.).

Section 464 carries amendment history through 83 Del. Laws, c. 73, § 1, and § 471 through 84 Del. Laws, c. 525, § 2. Confirm current text on the Delaware Code before relying on any wording here. One numbering point worth fixing in your head: § 467 is captioned "Justification - Use of force in law enforcement," and defense of your home and property runs through §§ 464, 466, and 469.

One thing to be clear about

This page is general legal information, not legal advice, and it cannot tell you whether a particular use of force was justified. If you have used force, or you are facing charges or a lawsuit over it, get a Delaware criminal defense lawyer on the phone before you talk to anyone else.