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47 Harv. J. on Legis. 523 (2010)
A Defensible Defense: Reexamining Castle Doctrine Statutes

handle is hein.journals/hjl47 and id is 527 raw text is: NOTE A DEFENSIBLE DEFENSE?: REEXAMINING CASTLE DOCTRINE STATUTES BENJAMIN LEVIEN* I. INTRODUCTION On the night of Wednesday, August 9, 2006, John White, a fifty-three- year-old asphalt company laborer shot and killed seventeen-year-old Daniel Cicciaro Jr. on the front lawn of White's house in suburban Miller Place, Long Island.' While the events that precipitated the shooting remain clouded in con- troversy, it is uncontested that earlier that evening Cicciaro had argued vio- lently with White's teenage son, Aaron.2 After learning from a friend's sister that she thought Aaron intended to rape her, Cicciaro had gone into a drunken rage, had threatened Aaron over the phone, and had driven with four friends (one armed with a baseball bat) to White's house.3 The elder White left his house armed with a pistol and shot Cicciaro after a heated, profanity-laced exchange.4 There was no allegation that Cicciaro produced a weapon,5 and, unlike more than twenty other states,6 New York does not have an expansive cas- tle doctrine of self-defense on which White could rely. In other words, in New York, the fact that Cicciaro threateningly entered White's property without permission did not grant White a prima facie right to resort to deadly force.7 As a result, White's defense rested on convincing a Suffolk County * B.A., Yale University, 2007; J.D. Candidate, Harvard Law School, Class of 2011. Many thanks to Carol Steiker for her comments on earlier drafts and invaluable support throughout the writing process, as well as to Janet Halley for her suggestions and advice. I am also thank- ful to Harvard Law School, which funded this project through its Summer Academic Fellow- ship Program. ' For a detailed account of the facts (both disputed and undisputed) of the shooting, see Calvin Trillin, The Color of Blood: Race, memory, and a killing in the suburbs, NEW YORKER, Mar. 3, 2008, at 30-39. 21 d. at 31-32. 3Id. at 33. 4See id. at 34. See id. at 32. 6 Cf National Rifle Association (NRA) Inst. for Legislative Action, Nebraska: Castle Doctrine, Feb. 17, 2010, http://www.nraila.org/News/Read/InTheNews.aspx?ID = 13415. 7 New York does recognize a weak form of the common law castle doctrine, but unlike more expansive recent castle law statutes, it still requires proof that the home dweller's fear of the intruder's imminent violent behavior was reasonable. See N.Y. PENAL LAW § 35.15 (Mc- Kinney 2004). Further, it does not presume a threat of imminent violence based on the intru- sion alone. See § 35.15.

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