Legal Duty to Retreat vs. Moral Duty to Retreat

[Thermodyne]

In MD. the excuse has been used that a person "could be invited" into a home and then murdered as a home invader. And with Baltimore City and county holding almost half the votes, only Federal intervention will change it.

[BillCA]

Bill, you have a knack for twisting what's been said ever so slightly in order to further your arguments.

We all do it in some form to attempt to make a point.

To imply that I said I'd walk out at that point is to put words in my mouth that I never uttered, and I'd prefer that you not do that.

And this is where time-lag sets in - I was composing that post while you were writing another, I believe. And it was in response to your comment that you would...

More likely, my intervention would consist of doing the "call-911-and-be-a-good-witness" thing, which...

And that, of course, was interpreted as departing outside to dial 911 and be the good witness.

I also suggest that the harsh reality of a situation where someone is on a shooting spree in a crowded place, nothing will be clear cut and simple to decide. Your options to retreat will be complicated by other people in the way for instance. Your attempts to ID the shooter and his location will be hampered by panic stricken people in your line of sight. That "clear shot" at 15 feet isn't quite so clear if there are more people beyond the perp at that distance (what if you miss?) or others suddenly standing or running through your line of fire. You needn't wait forever and put yourself at risk to get a "clean shot" -- if it isn't likely, retreat may be the only viable option. You're unlikely in the extreme to get a 99% clean shot. But a 70% clean shot may be the only one you get. Some will argue that if nothing is done or the shot not taken, those same innocents will be dead anyhow in a matter of seconds or minutes. Anyone in that situation has to determine what their own moral philosophy is -- is it better that you do nothing and let the killer slay the innocents rather than potentially have innocent blood on your hands? Or is it better to stop the killing at 9 victims, instead of letting it rise to 10, 15, 30 or more, even if it means one of your shots strikes a potential victim?

If we limit ourselves to simple 1:1 situations, I don't know that there is an absolute moral duty to retreat in every circumstance.

[OldMarksman]

Under NY Penal Law § 35.20(3), a person....

You said "in all states"....

.."reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon * * * [that] person when he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of [the] burglary."

But you said "as long as he is in the house." Nothing at all about what one reasonably believes to be necessary. And remember, necessity was the key question. If not necessary, can it be legal?

The legal advice is sound.

Is that really legal advice, or a simple parroting of the wording of the statute?

Do you really know what you are talking about?

No offense intended, but I learned long ago to not rely on a lay person's interpretation of the wording of any statute taken out of context, made without knowledge of case law, and based on dictionary definitions.

And I think the state to state variation may be critical here.

[easyG]

No, you are not obligated to make sure that the person threatening you is not hurt by your actions.
This is total nonsense.

EasyG, if you're going to respond, have the courtesy to respond to someone's complete thought, rather than taking a snippet out of context.
What I said was that you have such an obligation, if you can protect yourself by other means than the use of deadly force.

This is simply not true.
There is no moral or ethical (and often no legal) obligation for an armed person to use less than lethal force when protecting themselves, others, and sometimes even property from a threat.

No one who is arguing for a moral duty to retreat has said that you have an obligation to be a victim, or that you shouldn't exercise your right to self-defense. But self-defense means protecting yourself by whatever means are available and necessary, up to and including, as a last resort, deadly force.

Again, no. This is wrong.
Where is it stated that a person must use deadly force only as a "last resort" when defending oneself from a deadly threat?
There's no such law in North Carolina.

The use of deadly force is, and should be, a last resort -- what part of that isn't clear to you?

This is simply your opinion.
And it is an opinion not shared by everyone (thankfully).

If a lesser means of defending yourself is available, then you have a moral duty to use it in preference to deadly force

.
This is simply not true.
If I have a baton and a handgun, and someone attacks me, I am under no legal or moral obligation to first try to subdue the attacker with the baton before resorting to the handgun.
This is a notion of your own creation.

The reason for this has everything to do with the moral good of not harming someone else if it's avoidable... it's also true that it has a bit to do with common sense, i.e. protecting yourself from the legal ramifications of using deadly force, but that's a separate issue.

Apparently the law makers if NC disagree with you, as I am legally allowed to use deadly force to defend myself and my property.

[Archie]

Knowing one can be charged in certain jurisdictions based on the laws passed by pro-criminal legislators, one must follow the laws or stand the consequences; okay, that part notwithstanding:

I submit a citizen in his or her lawful pursuits has no moral or ethical obligation to surrender one's ability to conduct one's lawful pursuits, business, affairs or movement simply because a scoff law decides his unlawful pursuits conflict.

I will stipulate one might choose to ethically retreat to avoid serious danger or damage to others, or if faced with an adversary one knows to be mentally or emotionally incompetent. But that's the extreme exception.

[Steviewonder1]

Not in Georgia A Castle Doctine State. You break into my home and I will kill you dead unless I see who you are and recogonise you in a few milliseconds. I will not say anything like STOP Get Away From Here that the neighbors will not likely hear. You are shot dead and I will record my 911 call with all of the information to be played at your unlucky survivors court cases. Time for relaxation time.....

We are not promoting eugenics as reasons to shoot on TFL. GEM

[OldMarksman]

Where is it stated that a person must use deadly force only as a "last resort" when defending oneself from a deadly threat?
There's no such law in North Carolina.

Legal opinion? Really?

My lay reading indicates that in NC, deadly force may be used when necessary to prevent or terminate certain unlawful acts.

Would not "when necessary" always mean "as a last resort"? How can an act possibly be necessary it there are other alternatives?

14‑51.1. Use of deadly physical force against an intruder.
(a) A lawful occupant within a home or other place of residence is justified in using any degree of force that the occupant reasonably believes is necessary, including deadly force, against an intruder to prevent a forcible entry into the home or residence or to terminate the intruder's unlawful entry (i) if the occupant reasonably apprehends that the intruder may kill or inflict serious bodily harm to the occupant or others in the home or residence, or (ii) if the occupant reasonably believes that the intruder intends to commit a felony in the home or residence.
(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder in the circumstances described in this section.
(c) This section is not intended to repeal, expand, or limit any other defense that may exist under the common law. (1993 (Reg. Sess., 1994), c. 673, s. 1.)

[easyG]

Would not "when necessary" always mean "as a last resort"?

No.

Nowhere in NC law does it dictate that one must do everything possible to avoid using deadly force when defending oneself.
The very notion is foolish beyond comprehension.

[OldMarksman]

[QUOTE]Not in Georgia A Castle Doctine State. You break into my home and I will kill you dead unless I see who you are and recogonise you in a few milliseconds. I will not say anything like STOP Get Away From Here that the neighbors will not likely hear. You are shot dead and I will record my 911 call with all of the information to be played at your unlucky survivors court cases. Time for relaxation time.....QUOTE]

One presumes that you would do so if and only if you reasonably believe that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence or you believe that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony.

It would prove a little tense to have shot someone otherwise simply because you didn't recognize them, wouldn't it?

http://law.onecle.com/georgia/16/16-3-23.html

[Wildalaska]

Do you really know what you are talking about?

Well its been 15 years since I jury tried a self defense case, how 'bout you?

You said "in all states"....

Looks like its the same in NC....

I say again: Under the Xbox facts as I gave them, the legal opinion is sound. But the irony was more important and thats the forest you are missing as you gaze at the trees.....

[QUOTE]Not in Georgia A Castle Doctine State. You break into my home and I will kill you dead unless I see who you are and recogonise you in a few milliseconds. I will not say anything like STOP Get Away From Here that the neighbors will not likely hear. You are shot dead and I will record my 911 call with all of the information to be played at your unlucky survivors court cases. Time for relaxation time.....QUOTE]

Thats the bloodthirsty gun owning spirit I am talking about! Neca eos omnes. Deus suos agnoset!

I pray you wont make a mistake....bad for the gene pool.

WildforyoursakeAlaska TM

[OldMarksman]

No [does "when necessary" always mean "as a last resort"?]. Nowhere in NC law does it dictate that one must do everything possible to avoid using deadly force when defending oneself.

The very notion is foolish beyond comprehension.

Legal opinion? Do you actually believe that you could successfully argue that something had been necessary when it was avoidable? That it had been necessary when an alternative would have sufficed? On what basis would you put forth your contention? What does your attorney say?

[Donn_N]

I understand your point Donn_N, and it's very true, but I don't see how we can address all these possibilities in one thread. We're having enough trouble trying to understand each other when we simplify the issue.

You're right. I just find it interesting that the general mindset seems to be one of invincibility. As if having a gun and being in the right is going to protect them or bystanders from a BG's attack.

[Donn_N]

I also suggest that the harsh reality of a situation where someone is on a shooting spree in a crowded place, nothing will be clear cut and simple to decide. Your options to retreat will be complicated by other people in the way for instance. Your attempts to ID the shooter and his location will be hampered by panic stricken people in your line of sight. That "clear shot" at 15 feet isn't quite so clear if there are more people beyond the perp at that distance (what if you miss?) or others suddenly standing or running through your line of fire. You needn't wait forever and put yourself at risk to get a "clean shot" -- if it isn't likely, retreat may be the only viable option. You're unlikely in the extreme to get a 99% clean shot. But a 70% clean shot may be the only one you get. Some will argue that if nothing is done or the shot not taken, those same innocents will be dead anyhow in a matter of seconds or minutes. Anyone in that situation has to determine what their own moral philosophy is -- is it better that you do nothing and let the killer slay the innocents rather than potentially have innocent blood on your hands? Or is it better to stop the killing at 9 victims, instead of letting it rise to 10, 15, 30 or more, even if it means one of your shots strikes a potential victim?

In a situation like this where chaos is reigning supreme, there is one more danger you face if you take out your gun and start popping off rounds. Besides the possibility of hitting bystanders, or drawing the attention of the gunman who may then start shooting at you, you may attract the attention of someone else in the establishment who is armed and either doesn't realize you're not the shooter or thinks you may be an accomplice.

[easyG]

Thats the bloodthirsty gun owning spirit I am talking about

Since when is one considered "bloodthirsty" for merely defending ones self, family, and/or property from those who have made the decision to place their own life in jeopardy by invading another's home, or by threatening another's life?
The very notion certainly adds insult to injury.

[OldMarksman]

As long as he is inside the house, doesn't matter...fire away with impunity

....Looks like its the same in NC....

Do you interpret a requirement that an actor reasonably apprehends that the intruder may kill or inflict serious bodily harm to the occupant or others in the home or residence, or reasonably believes that the intruder intends to commit a felony in the home or residence, as permitting the use of deadly force under any circumstance "as long as the intruder is in the house"?

Really?

On what basis?

[easyG]

Legal opinion? Do you actually believe that you could successfully argue that something had been necessary when it was avoidable? That it had been necessary when an alternative would have sufficed? On what basis would you put forth your contention? What does your attorney say?

No such argument is needed.
Why should a law abiding citizen, exercising his legal right to self defense and defense of his home, need to prove that his actions were "necessary" when the law does not dictate that he need make such an argument?

If a person chooses to break in to another's home, then he has, by his very actions, given the homeowner the right to use deadly force.
The invader's actions make the argument for the defender.

[Wildalaska]

Since when is one considered "bloodthirsty" for merely defending ones self, family, and/or property from those who have made the decision to place their own life in jeopardy by invading another's home, or by threatening another's life?
The very notion certainly adds insult to injury.

I dont think the poster mentioned the word threat, did he?

He's cleaning the gene pool

Do you interpret a requirement that an actor reasonably apprehends that the intruder may kill or inflict serious bodily harm to the occupant or others in the home or residence, or reasonably believes that the intruder intends to commit a felony in the home or residence, as permitting the use of deadly force under any circumstance "as long as the intruder is in the house"?

Really?

On what basis?

Huh? There is no legal requirement for a "threat" in connection with the use of deadly physical force to stop a burglary, where do you get that

WildunlessyouconsiderthetakingofthexboxnottobeafelonyundernclawthereisnofelonyrequirementundernylawAlaska TM

[OldMarksman]

Since when is one considered "bloodthirsty" for merely defending ones self, family, and/or property from those who have made the decision to place their own life in jeopardy by invading another's home, or by threatening another's life?
The very notion certainly adds insult to injury.

Just a minute, Easy. You were not discussing defending yourself. You said that you would shoot "dead" anyone you didn't recognize within a few milliseconds who broke into your home, and then relax. Whether it was a wrong address, a person with a member of your family whose key didn't work, whatever.

Not too difficult to see that as bloodthirsty, IMHO.

Hopefully you never get involved in any kind of shooting situation and have your posts used to try to establish a criminal state of mind.

[Wildalaska]

If a person chooses to break in to another's home, then he has, by his very actions, given the homeowner the right to use deadly force.

I don't think one person here questions the "right".

We have lots of rights that many choose not to excersize

WilditstheimplementationthatsthequestionAlaska TM

[easyG]

Huh? There is no legal requirement for a "threat" in connection with the use of deadly physical force to stop a burglary, where do you get that?

Again, NC law.

If you think that person is going to commit burglary (a felony) then you are legally allowed to use deadly force to stop that person.

The real question is this:
Why do some here think that criminals who prey upon the law abiding citizens of this nation should be protected?

[easyG]

Just a minute, Easy. You were not discussing defending yourself. You said that you would shoot "dead" anyone you didn't recognize within a few milliseconds who broke into your home, and then relax. Whether it was a wrong address, a person with a member of your family whose key didn't work, whatever.

Not too difficult to see that as bloodthirsty, IMHO.

Actually, it was not me who said that.
It was Steviewonder1 who made that statement.

Try again.

[OldMarksman]

Why should a law abiding citizen, exercising his legal right to self defense and defense of his home, need to prove that his actions were "necessary" when the law does not dictate that he need make such an argument?

Oh yes it does!

14‑51.1. Use of deadly physical force against an intruder.
(a) A lawful occupant within a home or other place of residence is justified in using any degree of force that the occupant reasonably believes is necessary, including deadly force, against an intruder to prevent a forcible entry into the home or residence or to terminate the intruder's unlawful entry (i) if the occupant reasonably apprehends that the intruder may kill or inflict serious bodily harm to the occupant or others in the home or residence, or (ii) if the occupant reasonably believes that the intruder intends to commit a felony in the home or residence.
(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder in the circumstances described in this section.
(c) This section is not intended to repeal, expand, or limit any other defense that may exist under the common law. (1993 (Reg. Sess., 1994), c. 673, s. 1.

[easyG]

I don't think one person here questions the "right".

No, I think that some here are questioning the right to use deadly force to defend ones self and one's property.
Some have even claimed that it's our "obligation" to try and not hurt those that threaten us whenever possible.

[OldMarksman]

Actually, it was not me who said that.
It was Steviewonder1 who made that statement.

Whoops! My apologies.

[easyG]

Oh yes it does!

No, the defendant does not have to prove that he was justified....the prosecution must prove that he was not justified.

It's the "assumption of innocence" that our laws are founded upon that proves you wrong.