The Phillips & Associates Oklahoma Law Blog


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By Dustin Phillips on
April 15, 2013
February 5, 2020

The shooting of Trayvon Martin stirred criticism of Stand Your Ground laws around the country. The violent massacre at Sandy Hook Elementary in Newtown, Connecticut, revived the controversy and debate surrounding gun rights and weapons bans.

In Oklahoma, the Jerome Ersland case made people take a closer look at just how far one can go in "self-defense," when he was convicted of murder for killing a robber after, prosecutors say, the threat was neutralized.

Eighteen-year-old Sarah McKinney in Blanchard, Oklahoma, on the other hand, demonstrated the reasons for the Castle Doctrine, or "Make My Day" law, when she shot and killed an intruder in order to protect herself and her 3-month-old son.

Recent Cases Renew the Self Defense Debate

With gun control in the national spotlight, a weekend Associated Press article run on Yahoo! News investigated a decline in the use of guns in self-defense. The article shows that overall crime has decreased in recent years, as well as the use of firearms for self-defense. Though the number of gun owners listing "protection" as the primary reason for gun ownership has increased dramatically, the number of self-defense shootings has decreased.

What those statistics indicate, according to the article, is debatable. Some people say that because crime has declined, gun owners have fewer opportunities to draw a weapon in self-defense. Others argue that the Castle Doctrine (Make My Day) and Stand Your Ground laws which allow people to defend themselves serve as a deterrent to violent and property crimes. It seems to be a chicken-or-the-egg conundrum for researchers.

The article also describes a gun owner who bought a firearm for protection, but when confronted with a burglar in his home at night, didn't shoot. The author of the article says that the owner did not use his gun in self-defense, but that is an arguable assertion. When the burglar entered his bedroom, the man pulled the gun and pointed it.

He did not shoot because he was afraid the bullet might penetrate a wall and injure an eight-year-old child sleeping in another room. However, the burglar saw the gun and fled. The homeowner gave chase, and when the burglar tripped and fell, he held his gun on him until authorities arrived. The homeowner did not shoot in self-defense, but he certainly used the gun to defend himself, his loved ones, and his property.The outcome could have been markedly different if he did not have a weapon to frighten the intruder.

Likewise, as pharmacist Jerome Ersland knows, the outcome of the case would have been dramatically different had he shot the fleeing intruder after he was no longer a threat. Ersland and George Zimmerman, who shot Trayvon Martin allegedly in self-defense, know first-hand that Make My Day and Stand Your Ground laws do not provide carte blanche for killing someone you might perceive to be a threat.

For Ersland and Zimmerman, a jury determines whether the threat was real and justifiable homicide or whether the killings were murder, overreactions to a minor or neutral threat. So what does Oklahoma law say about gun ownership, self-defense, and justifiable homicide? The Oklahoma Criminal Defense blog will explore the specific state statutes and their implications tomorrow in part two of this article.

The Castle Doctrine

The Castle Doctrine is an almost universally accepted principle that a person has the right to defend his or her home and family by any means necessary, including the use of deadly force. The idea of the sanctity of the home is ancient, as is the belief that a person has the right to defend that sanctity. In the 18th century, a Presbyterian minister wrote the words that led to the laws governing the defense of the home being known as the Castle Doctrine:

  • A man's house is his castle, and God's law, as well as man's, sets a guard upon it; he that assaults it does so at his peril. - Matthew Henry, Commentary on Exodus 22

In 1983, Clint Eastwood as Dirty Harry uttered the words, "Go ahead. Make my day." Only a couple of years later, the laws allowing the use of deadly force in self-defense became known as "Make My Day" laws.

Nineteen states, including Oklahoma, have an additional "Stand Your Ground" clause that extends the right of deadly force self-defense outside the home.

Oklahoma's "Make My Day" Law

The use of deadly force against an intruder is allowable under 21 O.S.§ 1289.25. This statute begins, "The Legislature hereby recognizes that the citizens of the State of Oklahoma have a right to expect absolute safety within their own homes or places of business."

That recognition allows Oklahomans the right to use defensive force, including deadly force, to defend themselves, their loved ones, and their property under two conditions:

  1. The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, occupied vehicle, or a place of business, or if that person had removed or was attempting to remove another against the will of that person from the dwelling, residence, occupied vehicle, or place of business; and
  2. The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

In other words, breaking and entering, carjacking, and attempted kidnapping are all situations in which a person is allowed to used defensive force to protect himself, herself, or others who may be harmed by the criminal actions.  Defensive force in these situations may lawfully include force which is likely to cause serious injury or death to the intruder or attacker.

Exclusions to the Law

There are, however, exclusions to the law. Under certain circumstances, a claim of "self-defense" will not be upheld, and any resulting injury or death is not considered justified:

  1. 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, lessee, or titleholder, and there is not a protective order from domestic violence in effect or a written pretrial supervision order of no contact against that person;
  2. The person or persons sought to be removed are children or grandchildren, or are otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
  3. The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, occupied vehicle, or place of business to further an unlawful activity.

Virtually every state has some version of a Castle Law, although a few have weak statutes or no specific Castle Law at all. In states with weak laws, deadly force is only justifiable in preventing a violent personal crime: homicide, rape, or kidnapping, for example.

Most allow for use of deadly force in the homes, while others, including Oklahoma, extend the interpretation of the Castle Doctrine to include vehicles and businesses, and allow for the use of defensive force in protecting both person and property.

Stand Your Ground Law in OK

Oklahoma is considered to have some of the strongest self-defense laws, and it is one of only 19 states that has a "Stand Your Ground" law, which allows a person to defend himself or herself anywhere he or she has a legal right to be: A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Stand Your Ground laws came under scrutiny with the death of Trayvon Martin. His shooter, George Zimmerman, claimed he was acting in self-defense against an aggressive youth, and who said that he was assaulted by the teen and feared for his life.

Zimmerman is awaiting trial on second degree murder charges. The Oklahoma Make My Day law was in the spotlight when pharmacist Jerome Erslund shot and killed would-be robber Antwun "Speedy" Parker, and was subsequently convicted of murder. The law allows deadly force if a person has "reasonable fear of imminent peril."

At issue in the case was whether or not Erslund still feared for his safety after shooting and incapacitating Parker. A jury found that Erslund's actions went beyond self-defense and necessary force when he continued  to shoot the downed intruder.


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