Legal Duty to Retreat vs. Moral Duty to Retreat

[KingEdward]

Tennessee is now similar to Texas...




Castle Doctrine Reform Bill Signed into Law in the Volunteer State!

Friday, May 22, 2009

On Wednesday, May 13 Governor Phil Bredesen (D) signed House Bill 70 into law.

HB 70 will remove the prohibition against using deadly force in protection of personal property. It will also expand your right to self-defense to include a place of business.

[TailGator]

It would be a crime to break and enter and sit down to watch TV. Of course I can't see too many people thinking that it would be moral to blow the TV watching guy away.

And you did not read me advocating that, nor did I accuse anyone else of advocating it.

I should have been clearer, perhaps, in addressing my question to WildAlaska. The quote I used was directly from his post and he did not qualify it in any way. Not a lawyer, but my understanding has always been the same that you stated. I will be stunned to learn that we have no right to exclude other people from our premises or that they are not breaking any laws by entering, whether by breaking or by walking through an unlocked door, unless they commit another crime while on those premises, but that seems to be WA's assertion.

[Playboypenguin]

It would be a crime to break and enter and sit down to watch TV. Of course I can't see too many people thinking that it would be moral to blow the TV watching guy away.

That would depend upon what they were watching. If it was the View or a reality show I am afraid I would have to shoot them...but that would probably be considered more of a mercy killing.

[stargazer65]

Most modern Burglary statutes basically define burglary as an entry into a building with intent to commit a crime therein. The entry itself does not constitute the crime:

I think this is the post to which you refer TailGator. I believe he is saying that entry does not constitute the crime of burglary. He is not saying that the entry does not constitute a crime.

If it was the View or a reality show

don't forget Barney and Teletubbies. ...that's probably old school stuff now.

[OldMarksman]

Tennessee is now similar to Texas...

Castle Doctrine Reform Bill Signed into Law in the Volunteer State!

Friday, May 22, 2009

On Wednesday, May 13 Governor Phil Bredesen (D) signed House Bill 70 into law.

HB 70 will remove the prohibition against using deadly force in protection of personal property.

Maybe, but probably not.

Here's something from a Tennessee gun forum on the subject:

....from what I understand, you can protect property with deadly force as long as your circumstances also put your life in danger. So, pretty much, not much difference [from the previous law] from what I can tell.

That's pretty much it.

The law was sort of in conflict before. When they updated the self-defense laws a few years ago, the use of deadly force was allowed in some situations in which you may also be defending property. However the law specifically forbade the use of deadly force to protect property and did not give any exceptions.

So in a carjacking situation an over zealous DA could have tried to charge you under using deadly force to protect property even though you were also defending yourself.

The bill pretty much just removes that loophole.

Now, that may be essentially the same as the Texas law on use of deadly force as it applies to defense of person, in terms of the treatment of robbery. But there doesn't appear to be anything like Code Section 9.42, which addresses property.

The other posts in this string are consistent with that...

http://www.tngunowners.com/forums/te...tml#post285154

It will also expand your right to self-defense to include a place of business.

So it is stated.

[KingEdward]

thanks.

I'm not one who will shoot over the dvd player being taken from the den.

But I will do everything I can to encourage the intruder to exit.

[Wildalaska]

Ok, yo yo yo dudes and dudettes....

I'm not as stupid as I sound or look (unless I'm in my Freddie Mercury garb, and then I look abfab) and I worded the OP specifically the way I did for a reason....

Which some of you get, and some of you dont...

It isnt about the law, the law is the law and whilst it give us an interesting and informative digression, one should never confuse the law with morality qua morality or ethics qua ethics....

And it isnt about what moral code we should abide by (or ethical code, but that seems to be lost in the noise over whose and what moral code should apply)........

Its basic simple philosophical questions that some folks like Pax and Outcast and the Pizzamurderer and others have recognized, viz:

How far will you go to avoid killing in a situation where the law allows you to kill? Are you going to pull that trigger as a last resort? The last, final and ultimate resort? You have absolutely and positively no other choice?

Now you can argue all day over scenarios, morals, ethics and the like, but the bottom line is....will you kill someone when you are the one with the last clear chance of avoiding it?

Capital punishment is legal...how many of you WANT to pull the switch? How many of you WOULD pull the switch?

And as for me, my values (which are not entirely moral or ethical, but practical and psychological) would mandate that I better be Pax's Proverbial Kat before I touch one off....

Try it at home...that Kat wont bite ya till its in the corner with no other way to escape.


WildmeowAlaska ™

[OldMarksman]

Nor did I imply it [(murder)] would be [(honorable)]!

Sorry, I thought you did. You said "neither does any man have a duty to retreat from a threat" and "It is simply a matter of honor, and each man must decide for himself that which is honorable".

I inferred from that that one would use deadly force if he elected to not retreat.

But in many places, using deadly force if safe retreat is possible is murder.

But each man must decide for himself what is or is not worth shedding blood over.

Now, does he shed someone else's blood when that might be murder, and if so, is that honorable, or is it not? Or is it his own blood that is shed?

There is an old saying: "discretion is the better part of valor" (actually, it was "The better part of valour is discretion, in the which better part I have saved my life" as popularized by Shakespeare).

Valor means bravery rather than honor, but I think the substitution works.

[KingEdward]

shooting in self defense from imminent threat is not killing.

I would not shoot or "kill" over property.

I would shoot to defend myself or my family if a person who is in the home and (after being confronted/told to exit) continues to remain AND moves towards me (or family) in a threatening manner.

Yes, I would pull the trigger then.

[OldMarksman]

And as for me, my values (which are not entirely moral or ethical, but practical and psychological) would mandate that I better be Pax's Proverbial Kat before I touch one off....

As would mine.

[Brian Pfleuger]

shooting in self defense from imminent threat is not killing.

While I agree with the rest of your statement, this is simply incorrect.

Killing is to make that which was previously alive to be no longer alive.

You would not kill over property. You would not MURDER in self defense. You most certainly may KILL in SD.

[Playboypenguin]

And it isnt about what moral code we should abide by (or ethical code, but that seems to be lost in the noise over whose and what moral code should apply)........

But your question reads.."Does an Armed Citizen have a Moral/Ethical Duty to Retreat (complete safety)?"

Therefore all the discussion about morals and ethics is not only topical, but necessary. If I asked "Does a person have a fibiliboob duty to retreat?" I would most definitely have to define what "fibiliboob" means for the question to even be addressable. Morals and ethics are a fluid concept and need to be defined for the question to be answered.

[Brian Pfleuger]

Morals and ethics are a fluid concept and need to be defined for the question to be answered.

If the morals of the situation were so tightly definable then the question would require little more than a text book response. It would be no more than quoting the "law".

[Playboypenguin]

If the morals of the situation were so tightly definable then the question would require little more than a text book response. It would be no more than quoting the "law".

And it would be a very boring thread. The great part of this thread is it illustrates how different people have different values and see the same situation completely differently.

[Brian Pfleuger]

The great part of this thread is it illustrates how different people have different values and see the same situation completely differently.

Indeed... and yet there is a fine line between "great" and "scary", a situation wherein morals so completely lack definition that we begin to function on our own whimsical ideals.

[KingEdward]

shooting is not killing.

shooting is shooting.

killing is finishing life.

shooting is stopping the dangerous threat.

I would shoot in self defense.

[Glenn E. Meyer]

I think there is agreement that killing is an act of high moral consequence and not to be taken lightly. While we shoot to stop, the discussion hinges about the implicit risk of killing. The discussion might be different if we all carried phasers on stun.

We argue about the morality of killing or taking the risk to kill in the OP situation where it can be avoided.

People's views of morality and its origins do differ. Whether it comes from internal feelings of conscience or strict adherence to the law are different stages of moral reasoning according to some.

[Playboypenguin]

The discussion might be different if we all carried phasers on stun.

And just when are we getting those by the way. I remember being promised them by the year 2001 back in 1974.

[Glenn E. Meyer]

Not to thread hijack but by 2001, we were looking at alien monoliths on the moon that taught monkeys the first RKBA lesson but with big bones and head knocking.

Someone has tried to develop beam based tasers. Uses a laser to ionize a path to the target and then fire a bolt of electricity at them. Don't think it has worked yet. There are taser shot gun rounds now.

Again, not to hijack but if truly reliable distance stunners were around, would the moral person use them instead of the potentially lethal rounds we use? Separate issue - don't want to hijack, Pax.

[Wildalaska]

don't want to hijack, Pax.

Not to hijack either, but I really want to know what filliboobing is

WildilikethatwordAlaska ™

[Playboypenguin]

Not to hijack either, but I really want to know what filliboobing is

I could tell you, but then I would have to ethically remove your ability to function in a moral and legal fashion.

[Shawn Thompson]

OldMarksman

Our problem seems to be one of geography. You mention how it is in "many places", as for them I cannot speak. Where I grew up, and currently live, there are no duty to retreat laws. A crime (as you keep referring to the term murder) is not defined by "what if's". (ie. If you could have run away, then the VCA with the gun pointed at your child was not really a threat). If the threat of eminent danger exists, and it can be substantiated, then it is justifiable; threfore, not murder. BTW Anyone who presents the threat of eminent danger, such as attacking with a knife or firearm, forfeits their individual rights. That is why we are so careful to teach students not to engage in the defense of another unless you are 110% certain of ALL the facts of the conflict - as you would inherit the rights of those whom you would defend. Heaven forbid you choose the wrong side based on what you thought you saw.

As practitioners we try to avoid these situations at all costs. But that's the real rub isn't it? If I could plan my next gunfight, I would probably plan to not be in it. "Life is about how well you handle plan B"

The question presented, if I understand correctly, is retreating vs. when to draw the line. There is not one solution for every scenario. Individual judgement must be reserved for any situation at a given time. For most, the answer to the question "What will I do", will not come until it is too late. All I can say is train hard, be that which is good and right, and act with certainty.

Honor, then, should not be so loosely applied. If something is of such great value to you (a loved one, an ideal, etc.) that it is worth "shedding blood" over, be it someone elses OR your own, then it has honor. This honor concept is what won our country's freedom in the beginning, and it is what still drives many men to this day. But as Glenn has eluded to, morals and honor have drifted apart as time has passed. And for that reason what is honorable, where the line is drawn, is often different from one man to the next. And I agree with you Glenn, I think that would make a fantastic topic for discussion in itself.

But as for me and mine, there is honor in defending the lives of the ones who I love and hold dear.

[OldMarksman]

Where I grew up, and currently live, there are no duty to retreat laws.

And generally speaking, there are none in most states. But you have to be careful on that. In Missouri, for example, the only relevant reference in the law to the concept of retreat is in the part that states that there is no duty to retreat if the actor is within his domicile or automobile.

However, if a citizen is not in his home, tent, hotel room, or car, he must retreat if safe retreat is possible (for himself and family, of course), but that's not actually stated in the law. It's in the case law, and it traces its origin at least as far back as the origins of the English Common Law, in which the laws of all of our states but one are rooted.

Some states have laws similar to ours, others extend the "castle docrine" to the garage and/or place of bsiness, and still others state that a person need not retreat from any place in which he has a right to be.

Look for something in the law that says that you do not have to retreat if possible, not for the absence of an explicit requirement to retreat. If you don't find it I would assume that the duty to retreat exists unless your attorney says otherwise.

For example, Washington State has no castle law per se, but I understand that binding court rulings have established that the doctrine exists. Lay opinion.

A crime (as you keep referring to the term murder) is not defined by "what if's".

....but by the law, the facts, the evidence, and what a reasonable person would have done....

If the threat of eminent danger exists, and it can be substantiated, then it is justifiable; threfore, not murder.

Necessary but not always sufficient. If a person reasonably believes that the threat is imminent (A, O, J) and that the use of deadly force was necessary, a person would be justified in using deadly force. Of course, unless he is indoors or in his car, where the presumption of imminent danger may exist, he will in most places have the burden of producing evidence to that effect.

And unless it is justified or accidental, homicide is murder.

Here are a couple of good reads on the subject. They are too long to paste.

Read all of this one, but pay particular attention to the section on "preclusion" in the third chapter:

http://www.useofforce.us/

Section IV of this one---AOJ vs ADEE--is worth reading:

http://www.teddytactical.com/archive...2_StudyDay.htm

BTW Anyone who presents the threat of eminent danger, such as attacking with a knife or firearm, forfeits their individual rights.

I don't think that's legally correct.

That is why we are so careful to teach students not to engage in the defense of another unless you are 110% certain of ALL the facts of the conflict - as you would inherit the rights of those whom you would defend. Heaven forbid you choose the wrong side based on what you thought you saw.

Excellent advice!

[stargazer65]

Posted by Glenn E. Meyers:

Not to thread hijack but by 2001, we were looking at alien monoliths on the moon that taught monkeys the first RKBA lesson but with big bones and head knocking.

Someone has tried to develop beam based tasers. Uses a laser to ionize a path to the target and then fire a bolt of electricity at them. Don't think it has worked yet. There are taser shot gun rounds now.

Again, not to hijack but if truly reliable distance stunners were around, would the moral person use them instead of the potentially lethal rounds we use? Separate issue - don't want to hijack, Pax.

Phasers? Aliens?
What the...oops! Boy, moderators get cut some slack, and on the T&T forum yet in the bargain.

[pax]

stargazer,

Actually, he asks a good question ... for another thread.

(That's a hint, y'all.)

... if truly reliable distance stunners were around, would the moral person use them instead of the potentially lethal rounds we use?

pax