Duty to Retreat, "Stand Your Ground", and Castle Doctrine

[OldMarksman]

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.

[Spats McGee]

Well done! Thank you for this contribution, OldMarksman.

[Frank Ettin]

An excellent overview. Nice work, OldMarksman, and thank you.

[RamRoddoc]

It appears there was no duty to retreat since 1532. If there is no duty to retreat then you may stand your ground.

Under English law until 1532, if you killed another person, upon conviction, your property was confiscated and you were sentenced to death--even if you were defending yourself from robbery or murder. It was common for the king to hear appeals if you had been defending yourself, and for him to pardon you--but your property was not returned to you

Henry VIII changed the law in 1532, clarifying that killing another person in one's home, or on public roads, while defending yourself from murder, robbery, or burglary, was now lawful. You would no longer be convicted for killing in self-defense, nor would your property be confiscated

http://www.claytoncramer.com/popular...sdfootnote5sym

Once our nation was founded, we as American citizens have all rights and liberties bestowed upon us, unless a law is created to restrict, prohibit or ban them. The fundamental basic right to self defense does not require a duty to retreat. It exist, it always has, that is until a governing body creates a legal situation deeming it a requirement before use of force. That law stood until 1895 when an attorney incorrectly claimed a man had a duty to retreat before use of force.

One of America's earliest SCOTUS clarifications describing no requirement or duty to retreat is Beard vs. United States:

The short version, scroll down to Beard vs. United States:

http://www.davekopel.com/2A/LawRev/S...ense-Cases.htm

the longer but very interesting version. Uncle Beard seemed to exercise great restrain in disarming two men stealing a cow: https://supreme.justia.com/cases/fed.../550/case.html

In 2013 Eric Holder, AG spoke to the NAACP and advocated repealing "Stand Your Ground Law". Stand your ground law has been law since the birth of our nation. States "creating' stand your ground laws only reiterate and clarify the states standing.
http://americanfreepress.net/?p=12302

More importantly, which states place the burden of retreat upon a victim?

Do a web search "duty to retreat states" and nothing..... Do a web search of SYG states and volume after volume are listed. Much of that in an effort to repeal them. Odd?

Most states even N.Y. have long adopted Castle laws (SYG in the home) early into their constitution as well as enacting SYG laws solidifying the basic fundamental right to self-defense.

NYC convicts a man based on "duty to retreat as common law": http://www.claytoncramer.com/popular/DutyToRetreat.html

However a few do not extend that into public and a victim must retreat, which in this era of firearms puts them at grave risk.

Just because someone says it's so doesn't mean it so. So if anyone disagrees please reply. I encourage meaningful debate.

For those who want to learn more about SYG, the CATO video is one of the best. The intro is how the left distorts-lies about the purpose and intent of SYG with opinion.... Wait for the response at about 1:40 it's worth it.


https://www.youtube.com/watch?v=lPEEeOFSnxE

[Skadoosh]

I believe this will get a response.

[Spats McGee]

Originally Posted by RamRoddoc

It appears there was no duty to retreat since 1532. If there is no duty to retreat then you may stand your ground.

As a practical matter, I'm far more concerned about the status of the law today than I am the former status of the law, as it stood ~500 years ago.

Originally Posted by RamRoddoc

The fundamental basic right to self defense does not require a duty to retreat. It exist, it always has, that is until a governing body creates a legal situation deeming it a requirement before use of force. That law stood until 1895 when an attorney incorrectly claimed a man had a duty to retreat before use of force.

Even if this is true, and I have yet to dig up a reputable citation for the claim that the law was inadvertently changed due to an attorney's incorrect statement, then it is historically interesting, and good to know, but it may or may not have a bearing on the outcome of a case today.

Originally Posted by RamRoddoc

One of America's earliest SCOTUS clarifications describing no requirement or duty to retreat is Beard vs. United States:

The short version, scroll down to Beard vs. United States:

Quote:
http://www.davekopel.com/2A/LawRev/S...ense-Cases.htm

the longer but very interesting version. Uncle Beard seemed to exercise great restrain in disarming two men stealing a cow: https://supreme.justia.com/cases/fed.../550/case.html

And yet, in a decision some 30 years after Beard:

Originally Posted by SCOTUS

Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt. The law has grown, and even if historical mistakes have contributed to its growth it has tended in the direction of rules consistent with human nature. Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not succeeded the bounds of lawful self defence.

Brown v. United States, 256 U.S. 335, 343, 41 S. Ct. 501, 502, 65 L. Ed. 961 (1921)

Originally Posted by RamRoddoc

More importantly, which states place the burden of retreat upon a victim?

Do a web search "duty to retreat states" and nothing..... Do a web search of SYG states and volume after volume are listed. Much of that in an effort to repeal them. Odd?

I wouldn't call the web search "nothing," but no, I don't see a specific list of states that have a duty to retreat requirement. So what? Web searches are not the law. If you want to know which states actually have a duty to retreat, you'll have to go to a source more authoritative than Google.

That being said, here are a few gems that I found with a quick search on the duty to retreat:

Originally Posted by Supreme Court of Louisiana

8 La. R.S. 14:21 provides, “A person who is the aggressor or who brings on a difficulty cannot claim self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know his desire is to withdraw and discontinue the conflict.” While there is no unqualified duty to retreat, the possibility of escape from an altercation is a recognized factor in determining whether the defendant had a reasonable belief that deadly force was necessary to avoid the danger.

State v. Griffin, 14-450 (La. App. 5 Cir. 12/16/14) (La. Ct. App. Dec. 16, 2014)

Internal citations omitted

Originally Posted by Appellate Court of Connecticut

“Furthermore, under General Statutes § 53a–19 (b),6 a person is not justified in using deadly physical force if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating.... Thus, a defendant who raises a claim of self-defense is required to retreat in lieu of using deadly physical force if the state establishes beyond a reasonable doubt that a completely safe retreat was available and that the defendant actually was aware of it.”

Miller v. Comm'r of Correction, 154 Conn. App. 78, 90 (2014)

Originally Posted by Supreme Court of Rhode Island

Before resorting to the use of deadly force, however, “individuals [who are] attacked must attempt to retreat if they are consciously aware of an open, safe and available avenue of escape.”

State v. Garrett, 91 A.3d 793, 801 (R.I. 2014)

Georgia has a qualified duty to retreat:

Originally Posted by Georgia legislature

A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground.

Ala. Code § 13A-3-23

As does Arkansas:

Originally Posted by Arkansas General Assembly

(b) A person may not use deadly physical force in self-defense if the person knows that he or she can avoid the necessity of using deadly physical force with complete safety:

(1)(A) By retreating.

(B) However, a person is not required to retreat if the person is:

(i) In the person's dwelling or on the curtilage surrounding the person's dwelling and was not the original aggressor; or

(ii) A law enforcement officer or a person assisting at the direction of a law enforcement officer; or

(2) By surrendering possession of property to a person claiming a lawful right to possession of the property.

Ark. Code Ann. § 5-2-607

In sum, if you're going to carry a weapon, it's important to know the law in whatever jurisdiction you find yourself.

[Frank Ettin]

Spats, thanks for doing the heavy lifting on this -- some good research.

Although many States have enacted Stand Your Ground Laws/Castle Doctrine Laws which in some circumstances obviate a duty to retreat (California by court decision has no duty to retreat), you still need to know (1) where you are; and (2) what the local law is. There might still be a duty to retreat under your circumstances (e. g., being in a State which has a duty to retreat).

In any case, avoiding a fight, if you can do it safely, has practical advantages. Among other things, it minimizes entanglement with the criminal justice system.

[Frank Ettin]

Originally Posted by RamRoddoc

...One of America's earliest SCOTUS clarifications describing no requirement or duty to retreat is Beard vs. United States...

Oh, and I should probably point out that in Beard v. United States, 158 U.S. 550 (Supreme Court, 1895), Beard was on his own property. As the Court said (at 559-560, emphasis added):

....But the court below committed an error of a more serious character when it told the jury, as in effect it did by different forms of expression, that if the accused could have saved his own life and avoided the taking of the life of Will Jones by retreating from and getting out of the way of the latter as he advanced upon him, ... The court seemed to think, if the deceased had advanced upon the accused while the latter was in his dwelling house, and under such circumstances as indicated the intention of the former to take life or inflict great bodily injury, and if, without retreating, the accused had taken the life of his assailant, having at the time reasonable grounds to believe, and in good faith believing, that his own life would be taken, or great bodily harm done him, unless he killed the accused, the case would have been one of justifiable homicide. To that proposition we give our entire assent. But we cannot agree that the accused was under any greater obligation when on his own premises, near his dwelling house, to retreat or run away from his assailant, than he would have been if attacked within his dwelling house. The accused being where he had a right to be, on his own premises, constituting a part of his residence and home at the time the deceased approached him in a threatening manner, ...

[RamRoddoc]

Spats, thank you for the reply and detailed information. I appreciate it.

Even if this is true, and I have yet to dig up a reputable citation for the claim that the law was inadvertently changed due to an attorney's incorrect statement, then it is historically interesting, and good to know, but it may or may not have a bearing on the outcome of a case today.

I think the point is when did we as Americans have a law enacted which required one a duty to retreat. Keep mind the foundation of our constitution restricts and limits government powers but “all” rights and “all” liberties are bestowed upon the citizen until a governing body enacts law restricting or forbidding them. So the question and the answer I personally seek is just when did America require it’s citizens to retreat when faced with a forcible felony or in threat of deadly danger?

Specific states have enacted “Duty to Retreat” laws demanding by law a victim must retreat or attempt it prior to use of force thus placing the burden of proof upon them to prove it, rather than the state.

It a state that has no duty to retreat and no stand your ground law there is a liberal leftist view that one must retreat prior to use of lethal force when deadly force is provoked by an aggressor. This is untrue. A man can decide to retreat if able or stand his ground. It’s his decision, not the state’s decision. As long as the individual or 3rd party’s life is potentially at risk and deadly force indicated to preserve it. In previous cases presented to SCOTUS claiming duty to retreat convictions they have been overturned. Is there any SCOTUS case that reverses prior decision? If not then in the absence of state restriction then stand your ground is the law. Correct me if I'm in error.

Brown v. United States is in agreement with the Beard case and addresses once again that “duty to retreat” came from old English law during a time it was unlawful to use lethal force to defend yourself as in a slave or subject without rights. You could appeal to the king for pardon and even if granted all your property or assets would be forfeited to the crown. That is complete bull crap and is the key difference of a subject or slave and a citizen. Theoretically a citizen and a King fall under the same law. If a citizen must retreat before use of deadly force, then so must the king or his enforcers.

Which again begs the critical question just where the heck did we as citizens fall under a created law that requires one a duty to retreat in acts of honest self-defense? None that are federal, some that are state legislated either in the home or public. New Jersey is infamous in requiring one a duty to retreat in a person’s OWN home. This is incomprehensible in a “free state” pertaining to free men and abrades against the fiber of our constitution.

I think it rather odd that one cannot locate, without visiting every single state’s web site and scrutinizing if a duty to retreat exist-a created/enacted law. Some have castle law in the home but no law for outside. Some have castle law and have enacted a duty to retreat outside of the home and at least one (New Jersey) has enacted a duty to retreat both in the home and outside the home.

So which states require a duty to retreat, you reference: Appellate Court of Connecticut is referenced as well as the Supreme Court of Rhode Island.

Georgia has a qualified duty to retreat as there is no duty to retreat both in home and public. We have stand your ground law and castle law.

Arkansas has castle law or no duty to retreat in your home so everywhere else, a duty to retreat law exist with exception in assisting a LEO per your reference.

It is critical and key to understand the law in the state and in some cases the jurisdiction you are in as some pre-empt state law (ludicrous). The purpose and intent of this post is just that, beginning with which states specifically ban stand your ground and have enacted leftist duty to retreat laws. A difficult task as is seems no one has taken the effort to scrutinize them all and list them in order. Or is access restricted? Makes a thinking man think as who would that serve and for what benefit?

This will be a task but worthy endeavor. It’s just odd that with all the data available at one’s finger tips and the ease of locating every state that enacted SYG law that there is great difficulty in obtaining which states enacted a duty to retreat. it's a challenge to accomplish.

[Frank Ettin]

Originally Posted by RamRoddoc

...Which again begs the critical question just where the heck did we as citizens fall under a created law that requires one a duty to retreat in acts of honest self-defense? None that are federal, some that are state legislated either in the home or public. New Jersey is infamous in requiring one a duty to retreat in a person’s OWN home. This is incomprehensible in a “free state” pertaining to free men and abrades against the fiber of our constitution.

I think it rather odd that one cannot locate, without visiting every single state’s web site and scrutinizing if a duty to retreat exist-a created/enacted law. Some have castle law in the home but no law for outside. Some have castle law and have enacted a duty to retreat outside of the home and at least one (New Jersey) has enacted a duty to retreat both in the home and outside the home. ...

Enough!

The reality is that in some States, or under various circumstances, there is a duty to retreat. At this point the origins of those various rules is irrelevant. What is relevant is what the rules are where you are. And you need to know those rules and pay attention, because if you don't your act of violence against another human will not be justified but will rather be the crime of aggravated assault or manslaughter or murder.

The point of this thread is to help introduce people to an understanding of the working and limitations of Stand Your Ground and Castle Doctrine laws. The material in the OP was assembled by a member with a legal background and reviewed and contributed to by lawyers.

Our interest in this thread is current reality, but it is outside the scope of what we're able to do here to develop a comprehensive, State-by-State survey of each State's respective laws.

Anyone who carries a gun for self defense or who keeps a gun for self defense would be well advised to do his own research. To help with that research, consider the following resources:

• The Law of Self Defense: The Indispensable Guide to the Armed Citizen by Andrew Branca (Law of Self Defense LLC; 2nd edition (July 4, 2013))
  
  
• Deadly Force: Understanding Your Right to Self Defense, by Massad Ayoob (Gun Digest Books; 1st edition (November 21, 2014))
  
  
• Gunlaws.com, a publisher of some useful guides to firearms law
  
  
• Handgunlaw.us
  
  
• The Armed Citizens' Legal Defense Network
  
  
• The thread A Repository of Reliable Sources & Citations

And with that, I'm going to close this thread before we drift further astray.