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

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Kleanbore

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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 THR.

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

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.

Edited to Add:

There are two different "kinds" of Stand Your Ground laws.

In all states with such laws, the legal duty to retreat is obviated.

But in some states, juries may be instructed that, while, there was no legal duty to retreat, the jurors may consider whether retreat had been safely possible in judging whether the use of force had been reasonable under the circumstance. Failing the reasonableness states will negate a legal defense of self defense.

In other states, juries are instructed that the possibility of safe retreat may not be taken into account at all.

The distinction may or may not be evident in the code.

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.

As one of our members recently put it, the ethic should not be one of "under what circumstances am I able to kill someone without getting prosecuted?", but rather, "is there really absolutely no other alternative to using deadly force?".
 
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Excellent. I hope that that post will dispel some of the fog of nonsense surrounding those issues, no matter which side of the gun issue one is on.

Jim
 
Thanks to Kleanbore for all the work in putting that together. I wanted to link to the case of Raul Rodriguez - a man convicted of murder in a Stand Your Ground state. There is video of the events preceding the shooting and it discusses some of the important issues as well as reemphasizing why the advice to retreat (if you can do so safely) is wise:
http://www.thehighroad.org/showthread.php?t=662591
 
Yes, it's going to be a sticky. But the surest way to get a thread ignored at the outset is to make it a sticky. This one is too good not to get some discussion.
 
There is a case currently in the news (again) in which IMHO both parties made so many mistakes it is truly sad. No matter how things turn out, one man is dead and the other has had his life ruined. And I think partly due to the widespread misunderstanding of "stand your ground".

Jim
 
you guys did do a nice job on this one.

i wish there was a concise list by state of those laws, much like the concealed carry websites. obviously, it would take a lot of time to maintain.

i'm sure a lot of people are reading this thinking, "i wonder what laws my state has".

also, out of curiosity, are you guys aware if these vary by city? or do they fall under statewide preemption or similar
 
Posted by taliv: you guys did do a nice job on this one.
Thanks. We are, however, way down the learning curve, considering the number of times that the several of us have gone over this stuff here and on The Firing Line.


i wish there was a concise list by state of those laws, much like the concealed carry websites. obviously, it would take a lot of time to maintain.
It would be terribly difficult to do so in the first place.

To further emphasize the importance of knowing more than the black law, the law in Missouri, where I live, reads as follows:

A person may not use deadly force...unless...Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person; or...

I think that a lay person might reasonably conclude from that that it would be lawful to shoot someone who entered one's house unlawfully--period. By the way, the definition of "unlawful entry" is "without invitation".

But not so fast. Both Frank and I have referred more than once to the case in St. Louis in which a man against whom a restraining order had been issued entered a residence unlawfully and was shot dead. It took several weeks for the authorities to conclude that the above part of the law made the shooting justifiable.

And it gets muddier. The jury instructions applying to self defense, including self defense within the home, reportedly speak to a requirement for a resident to have a basis for reasonably believing that deadly force was necessary to protect himself or others.

Is that a contradiction? Not really--it is an amplification. If it were a contradiction, which would take precedence? There's no mystery there. The jury instructions have been approved by the State Supreme Court, which would have the final say in an appeal. The jury instructions for criminal cases here are not available on line.

There is a Castle Doctrine page on wiki, but though I refer to it often, it does not go into sufficient detail.

i'm sure a lot of people are reading this thinking, "i wonder what laws my state has".
In my opinion, and Sam1911, said something similar on another thread the other day, the key is to not focus on trying to determine whether conditions exist that would justify shooting under the law, but to shoot only when absolutely necessary--immediately necessary (necessary right now, and still necessary)--for the defense of persons against death or serious bodily injury. The complicating factors make it very advisable to know a little more, however, such as the fact that robbery is considered a crime against a person and theft is not, and that a blow from a punch would in most cases not be likely to cause serious bodily harm, to cite just two examples.

also, out of curiosity, are you guys aware if these vary by city? or do they fall under statewide preemption or similar
Use of force laws per se are statewide, territory wide, or District (of Columbia) wide, as applicable, plus a few special Federal laws. Unless there is preemption, counties and municipalities are free to enact ordinances regarding weapons carriage and possession, shooting, fireworks, noise, parking, zoning, and tree pruning and so on, but one does not see laws referring to robbery, assault, murder, burglary, and so forth among local ordinances, so the defense of justification would not be governed locally, wither.
 
In my opinion, and Sam1911, said something similar on another thread the other day, the key is to not focus on trying to determine whether conditions exist that would justify shooting under the law, but to shoot only when absolutely necessary--immediately necessary (necessary right now, and still necessary)--for the defense of persons against death or serious bodily injury. The complicating factors make it very advisable to know a little more, however, such as the fact that robbery is considered a crime against a person and theft is not, and that a blow from a punch would in most cases not be likely to cause serious bodily harm, to cite just two examples.

Oh no doubt but it could influence decisions prior to an event.
 
It's probably wise to note again that there may be factors that would explain a reasonable person's decision to use deadly force that police may not automatically know. In general, the less said immediately after a traumatic event- when the body is in shock, and sometimes people don't really know what they're saying- is wise, but the approach I have heard suggested that I like most is to explain to the police that you were in fear for your life, that you're really shook up at the moment, but that you'll be happy to appear at the station tomorrow with your lawyer to give a detailed statement.

Again, good things to remember to say are "I was in fear for my life" and "I'll come to the station tomorrow with my lawyer to make a statement". And these things should be true statements.
 
but that you'll be happy to appear at the station tomorrow with your lawyer to give a detailed statement.

It seems far more likely that one will be calling said lawyer from lockup that night. That's why it's good to have a pre-staged plan that someone else is in on regarding whom to call and so forth. Get some money together (if you're able) and set it aside with instructions about calling a lawyer you have already picked, and relevant friends and family, etc. So when you do get access to a phone, you're not scrambling to arrange all of this from a cell.
 
If you carry a gun (personal, not as an officer or agent) it is best to have an attorney on retainer. And memorize his or her phone number as it is a good bet you won't have your notebook or smart phone when you get a chance to call.

<deleted>
Jim
 
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In addition to common law, and statute law, it would be wise to review your state case law.

Case in point , VA case law defines brandishing.
 
Awesome post. Glad I checked it out. Very informative. This has been a good reminder that I should at least research defense attorneys in the area and possibly retain one as finances permit.
 
you guys did do a nice job on this one.

i wish there was a concise list by state of those laws, much like the concealed carry websites. obviously, it would take a lot of time to maintain.

i'm sure a lot of people are reading this thinking, "i wonder what laws my state has".

also, out of curiosity, are you guys aware if these vary by city? or do they fall under statewide preemption or similar
this
 
I happen to live in a state where this is spelled out very clearly. To boil it down, the use of deadly force is authorized if any person/persons has entered or is in the process of entering a residence by stealth or by force... They don't even have to be inside your house. The code states that deadly for can be used if:

If he reasonably believes that the entry is made or attempted for the purpose ofcommitting a felony in the habitation and that the force is necessary to prevent the commission of the felony.

If I am not mistaken, Utah is also the only state to have very defined civil liability laws which make it nearly impossible to file civil suites in cases where you defend your home with a firearm.


Now, when you are out in public this gets more complicated but, overall, I live in a great State if you want to defend yourself.
 
This:
Posted by Schwing: The code states that deadly for can be used if:

If he reasonably believes that the entry is made or attempted for the purpose of committing a felony in the habitation and that the force is necessary to prevent the commission of the felony.
Emphasis added.

...is not the same as this:

To boil it down, the use of deadly force is authorized if any person/persons has entered or is in the process of entering a residence by stealth or by force...

It goes back to this from the OP:

The defender will have to establish that he or she knew, or had reason to believe, that the thresholds for castle doctrine justification ... had been met.

Paraphrasing again from the OP, the fact of an unlawful entry or attempt at same may provide a presumption that the defender had reason to so believe, but such a presumption can be rebutted.

Criminal codes do not "authorize" citizens to employ deadly force against others. They establish when the use of such force, which is ordinarily a crime, is excusable (often referred to as "justifiable" today.)

If I am not mistaken, Utah is also the only state to have very defined civil liability laws which make it nearly impossible to file civil suites in cases where you defend your home with a firearm.
Many states have civil liability protection written into the law.

But do not misunderstand the law. Anyone can file suit. The question is whether it will go to trial.

It is a fundamental legal principle that persons have the right to seek redress in court if they are harmed wrongfully by someone else. The burden on the plaintiff is one of a preponderance of the evidence. That means that the burden on a defendant is also one of a preponderance of the evidence.

What the civil liability shield does do is twofold. First, it makes the standard for the "reasonableness" of a defender's action the same for civil liability as for criminal culpability. That is, if shooting is lawfully justified under the criminal code in a use of force incident, a plaintiff may not prevail in civil court with an argument that that shooting constituted excessive force.

But the same burden of proof remains. The fact that the state may not have elected to prosecute a defender, or that a criminal jury has not found the defender guilty beyond a reasonable doubt, is insufficient to stop a plaintiff from seeking redress. Rather, a civil court must do that. The second thing that the shield does is provide a way to stop civil proceedings before they go to trial if the evidence supports that action. A simple hearing may well be sufficient to prevent the case from going to trial--after some evidence supporting justification is presented by the defender. But in actuality, that has been technically the case for a long time. Many civil suits do not ever go to trial.

The wording of the law in some states seems to go farther than that, but it is extremely doubtful that it would stand up in the appeals process. The principles are fundamental.
 
Schwing said:
...I happen to live in a state where this is spelled out very clearly. To boil it down, the use of deadly force is authorized if any person/persons has entered or is in the process of entering a residence by stealth or by force... They don't even have to be inside your house. The code states that deadly for can be used if:

If he reasonably believes that the entry is made or attempted for the purpose ofcommitting a felony in the habitation and that the force is necessary to prevent the commission of the felony...
First, you've contradicted yourself. On one hand you claim that one is "authorized" to use deadly force it someone has entered or is entering your residence by stealth or force. On the other hand you claim he may use such force if he reasonably believes that the entry is for the purposes of committing a felony. So even as you've put it, entry or attempted entry by force or stealth in not enough to justify the use of deadly force, and the defender must in addition have a reasonable belief that the purpose of the entry is to commit a felony.

But instead of relying on your paraphrasing, let's look at the actual law, 76-2-405 of the Utah Criminal Code (emphasis added):
76-2-405. Force in defense of habitation.

(1) A person is justified in using force against another when and to the extent that he reasonably believes that the force is necessary to prevent or terminate the other's unlawful entry into or attack upon his habitation; however, he is justified in the use of force which is intended or likely to cause death or serious bodily injury only if:

(a) the entry is made or attempted in a violent and tumultuous manner, surreptitiously, or by stealth, and he reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person, dwelling, or being in the habitation and he reasonably believes that the force is necessary to prevent the assault or offer of personal violence; or

(b) he reasonably believes that the entry is made or attempted for the purpose of committing a felony in the habitation and that the force is necessary to prevent the commission of the felony.​

(2) The person using force or deadly force in defense of habitation is presumed for the purpose of both civil and criminal cases to have acted reasonably and had a reasonable fear of imminent peril of death or serious bodily injury if the entry or attempted entry is unlawful and is made or attempted by use of force, or in a violent and tumultuous manner, or surreptitiously or by stealth, or for the purpose of committing a felony.
So there are still a number of hurdles one must get over to justify the use of deadly force even in his home. True, he gets a presumption that will help him get over those hurdles; but, as Kleanbore noted, presumptions are rebuttable.

We get back to the basic "take-home lesson": Castle Doctrine/Stand Your Ground Laws are not "licenses to kill" or "get-out-of-jail-free cards."
 
Edits to the OP

Frank Ettin, who along with Spats McGee is on the staff at The Firing Line, provided me with some thoughtful suggestions made by Vanya at TFL.

I think the changes improve the clarity of the write-up, and I have incorporated them.

The help is very much appreciated.
 
One More Time

Let's again review the bidding:

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.

Emphasis added this time.​

In another post, someone just demonstrated a complete lack of appreciation of that point.

It is extremely important that everyone realize this important nuance.
 
It is extremely important that everyone realize this important nuance.

Indeed.

Far better to learn it here than in court...
 
Something I try to impress on my students, is that just because you have these laws, it isn't a good idea to rely on them. They exist as a buffer to protect the defender, but they are subject to interpretation and challenge. The ethic should not be; "Under what circumstances am I able to kill someone without getting prosecuted?", but rather; "Is there really absolutely no other alternative to using deadly force?" These laws should serve as an additional buffer AFTER you have done everything you can to avoid confrontation.
 
The ethic should not be; "Under what circumstances am I able to kill someone without getting prosecuted?", but rather; "Is there really absolutely no other alternative to using deadly force?"
So well put that that is now incorporated in the OP.

Thanks.
 
It's worth talking to firearms instructors that specialize in CCW (as they usually keep current of state law) and local attorneys, along with READ cases in your state where Affirmative Defense of Necessity has been successfully used and NOT.

Realize, if you do shoot someone, you are basically pleading "Yes, I broke the law, but I had to." Two cases that stuck were one where two neighbors had an issue over use of a private drive, the man and wife pursued the other neighbor, shooting him dead, they plead self defense because he was known to keep guns in his car. They were found guilty due to the fact they were considered to be mutually combative, and able to retreat, AND even if the neighbor WAS retreating to a weapon, he was killed before he could access them, the prosecution actually pointed out, that had he gotten the weapons he could have claimed SD (pursued by armed hostiles...)
-- Remember when confronting someone with a gun, you MUST be sure to stay defensive --

Second one, guy went to speak with his next door neighbor about his dog pooing on his lawn, words had been exchanged previously about the dog poo, his neighbor told him to get lost and attacked him, the guy was knocked down, and the neighbor pressed the attack, at which point the man fatally shot him. Even though he was the initiator, and not on his property, it was ruled SD because he wasn't mutually combative, was in fear of life or limb, and lacked safe retreat.

One of the reasons duty to retreat is still strongly in favor with many LE is because they fear that stand your ground will be used by criminals to claim SD when they shoot someone because they are loosing a fight. HOWEVER every state I've read the statues for specifically excludes 'mutual combatants' from being able to claim self defense.
 
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