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Old June 17, 2013, 06:25 PM   #1
OldMarksman
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Duty to Retreat, "Stand Your Ground", and Castle Doctrine

Three important, related issues seem to often come up as the subject of some misunderstanding and misinformation. Because of their importance and of the fact that they are discussed rather frequently, we have written a brief guide to all three, with the help of some of the attorneys on TFL.

Thanks to Frank Ettin, Spats McGee, and Bartholomew Roberts for their help here and in discussions in previous threads that are summarized herein, and to Vanya for some helpful edits.

Note that these subjects are covered among other important elements of use of force law at MAG-20.

This is a general summary, and it necessarily omits state-specific details. In law, details can matter a great deal. Be sure that you understand that, and that you understand the law.

The first of these related subjects is the duty to retreat. This refers to a legal obligation of a defender to retreat from a confrontation before using deadly force in self defense. The second is in effect the other side of the coin--the right to "stand your ground" rather than attempt to retreat in a self defense incident. The third involves a concept known as "castle doctrine", which addresses the lawful use of force in a dwelling, automobile, and sometimes in a place of business.

Duty to Retreat

The name is self evident; in some jurisdictions, a defender must retreat, or attempt to retreat, before a using force or deadly force in self defense. The requirement, where it exists, applies only when the defender has reason to believe that retreat is safely possible. Historically, one of the difficulties encountered in defenses of justification has been the ability of the defender to provide evidence that he or she had not been able to retreat safely.

Many people seem to think that the legal imposition of a duty to retreat is a rather recent historical development. Actually, the concept of duty to retreat is a very old one, going back at least to the era of the English Common Law. The principle was that a man was obligated to "retreat to the wall" before he would be excused for harming another person by using deadly force. That was a product of the age of contact weapons, and it was intended to help in the determination of who was the attacker and who was the defender.

It is essential that people who carry weapons of any kind for self defense understand the law as it relates to the duty to retreat, not only in their own jurisdictions but in places to which they travel. However, one cannot be assured of getting such an understanding simply by looking in state legal codes for a mention of a duty to retreat or for the absence of words on the subject. One must also understand what the common law says about the subject.

All of our states except one adopted the English Common Law as it existed at the time that statehood went into effect. The Common Law, though age old, does change over time, through rulings made by judges in appellate (not trial) courts. In fact, the Common Law was the product of learned judges, and not that of elected legislatures or kings or noblemen. The duty to retreat was embodied in the Common Law. Thus, there was a duty to retreat in virtually all US jurisdictions at one time.

For this reason, a duty to retreat exists even in some states in which it is not mentioned at all in the state criminal codes. The requirement exists simply because it is embodied in legal precedent--that is, in common law.

"Stand Your Ground" Provisions

In some states, court rulings have eliminated the duty to retreat, sometimes in the home, sometimes in places of business or other specified locations, and sometimes, wherever a person has a legal right to be.

In others, such as Kansas and Texas, to name just two examples, state legislatures have eliminated the need for a citizen to retreat before using deadly force when deadly force becomes immediately necessary. The laws in such states are sometimes referred as "stand your ground" laws.

One cannot rely on the reading of state codes alone to establish whether a duty to retreat exists unless the legislature of the state in question has enacted something on the subject.

It is important to understand what "stand your ground" laws and court rulings that eliminate the duty to retreat mean, and also what they do not mean.

Where the duty to retreat has been eliminated, a defender is not required to provide evidence that he or she had in fact attempted to retreat, or that he or she had had reason to believe that retreat had not been safely possible.

It is even more important to understand that neither "stand your ground" laws or court rulings of similar effect change the fundamental tenets of the use of force laws. Their only effect is to remove the duty to retreat. Force, deadly or otherwise, may only be used when it is immediately necessary and otherwise justified under the law.

The fact that the duty to retreat has been eliminated in a particular jurisdiction does not mean that one may lawfully use deadly force after initiating a confrontation or provoking another person unless one can provide evidence that he or she made every attempt to break off the encounter before resorting to deadly force.

That is so important that it bears repeating. Put another way, a defender who initiates or causes a confrontation must make a clear effort to retreat and deescalate in order to be able to claim self-defense legally.

Given the ability to retreat safely, it remains a very good tactic to do so if possible, and having done so can be very useful indeed in a defense of justification, even where the duty is no longer embodied in the law.

Castle Doctrine

The term "castle doctrine" stems from another age-old legal concept--the concept that a "man's home is his castle". It too has its roots in antiquity. It was part of the early English Common Law, but parts of it go back to Roman Law, to the Code of Hammurabi, and to the Code of Ur-Nammu.

The basic principle is that someone who is in his or own house is given certain presumptions regarding the justification of the use of force against an unlawful intruder that would not apply somewhere else.

As in the case of the duty to retreat and the right to not retreat (to "stand your ground"), castle doctrine provisions are variously defined in state codes and in appellate court rulings (legal precedent). One should never rely on a layman's reading of the code, or on any one statute taken out of context.

Provisions vary from one jurisdiction to another. In general, however, "castle doctrine" laws and rulings do the following:
  • They provide a resident or his or her guest with a presumption that an unlawful entry by an intruder gives the occupant reason to believe that deadly force is immediately necessary to defend against an imminent threat of death or serious bodily harm; that belief is one of the fundamental requirements of a defense of justification for the use of deadly force;
  • they establish clearly that, once the conditions for justification have been met, there is no duty to retreat within or from the domicile in the event of an attack by an unlawful intruder.

Castle doctrine laws DO NOT provide a resident with a carte blanche right to employ deadly force simply because someone has entered a domicile unlawfully. The aforementioned presumption is rebuttable: if the intruder does not pose a serious threat or has ceased to do so, the use of deadly force is not justified. Essentially, what the castle doctrine really does is reduce the burden on the defender to provide evidence supporting a reasonable belief that deadly force was necessary.

The laws and precedents vary from jurisdiction to jurisdiction. Some of the differences involve the following:
  • Which structures or parts of same are included in the definition of a residence or domicile, and which are not;
  • whether unlawful entry must be completed or simply attempted, and whether of not it must be made with force;
  • whether or not a place of emloyment is covered;
  • whether or not the law applies to an occupied automobile;
  • whether or not force is justified to prevent felonies other than attacks on persons.

The list is necessarily not complete.

It must be emphasized that castle doctrine protection is not automatic. The defender will have to establish that he or she knew, or had reason to believe, that the thresholds for castle doctrine justification (for example, the fact of a forcible and unlawful entry) had been met. The physical evidence may clearly support that, or it may not.

This is a lot to understand and there is more behind it, but it is the responsibility of the defender to know the laws and their meanings.

That's a tough challenge. Our best advice is that one should always avoid the use of deadly force unless it is immediately necessary and unavoidable to protect human life and limb.
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Old June 17, 2013, 06:55 PM   #2
Spats McGee
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Well done! Thank you for this contribution, OldMarksman.
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Old June 17, 2013, 08:39 PM   #3
Frank Ettin
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An excellent overview. Nice work, OldMarksman, and thank you.
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