Duty To Retreat

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Zonamo

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The question of Duty to Retreat gets brought up quite a bit, and two conflicting principles appear to be recognized across the states which is reflected in the opinions seen about the requirement.

In some states, a person in a place they have a lawful right to be is entitled to stand their ground and defend themselves. Retreating is not a requirement for justification of self defense, and a person is not at risk for not trying to run. This uniquely American principle of right to stand and defend is accepted in most western and some southern states. Vermont is the only eastern exception.

In others states, the philosophy is the more traditional British common law principle that a person must attempt to retreat from a threat before they are justified in defending themselves. In these states, a person is placed at the mercy of a jury determining whether "safe" retreat was available, and whether the failure to retreat was "reasonable." This is the philosophy of most eastern states, and some midwestern states. The only exception is defense of one's home, though it is not clear that even this exception is true everywhere.

The following is a preliminary list taken from hunting down statutes and case law citations for each state. Corrections, additions, and clarifications (especially from real lawyers which I don't pretend to be) welcomed.

No Duty To Retreat Stated by Statute
Arizona
New Mexico
Tennessee
Utah


No Duty To Retreat Not Stated In Statute But Clarified by Case Law
Idaho
Colorado
Georgia
Indiana
Kentucky
Mississippi
Louisiana
Montana
Oklahoma
Oregon
Nevada
Vermont
Washington


Duty to Retreat Except at Home or in Assistance of Police Stated by Statute
Alabama
Alaska
Delaware
Hawaii
Maine
Minnesota
New Hampshire
New Jersey
New York
North Dakota
Pennsylvania
South Carolina (No exception for assistance in law enforcement)
Texas (Statute states retreat is factor in determination of “reasonableâ€)

No Duty To Retreat In Home By Statute. General Duty To Retreat Not Determined
North Carolina
Rhode Island
South Dakota

Duty To Retreat Not Stated by Statute But Clarified by Case Law or Common Law
California (status of duty in home not determined)
Florida (Senate Bill SB436 introduced to declare no duty to retreat)
Ohio (no duty to retreat in home by statute)

Duty To Retreat Not Determined
Iowa
Missouri
Puerto Rico
Virginia
West Virginia
Wyoming (No duty to retreat in home clarified by case law)

Incomprehensible Legal Codes-Could not find definition of what constitutes self-defense at all, much less Duty To Retreat requirements
Maryland
Massachusetts

States Where Duty To Retreat Is Basically Moot Because The Right To Carry Concealed Outside Home Is Denied
Kansas (no duty to retreat by case law)
Illinois (Duty to retreat by statute-defense of home requires “violent, riotous, or tumultuous†attempted entry)
Nebraska (duty to retreat except home by statute)
Wisconsin (duty to retreat by case law)
 
Well, thats a pretty impressive list you've compiled, but where exactly did you track it down? Did you read that many opinions and look at all the statutes? Or did you create it by looking at various secondary sources which made statements concerning the law in each state?
 
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BTW, thanks for undertaking all the hard work so far.

I once worked on a case involving agricultural field burning in Northern Idaho and as part of the defense we crafted I did a nation wide survey of right to farm laws and nuisance laws state to state. It took me almost two weeks of working non stop 12 hour days. . . . . and then we compiled it into 1 sentence and a short footnote summarizing our finding and offering to turn the spreadsheet over if the court was inclined.

They weren't - that I know of. I left that firm.

Anyway, I know how much hard work is involved in something like this.
Thanks for undertaking it so far..
 
Glad I don't live in any of those states further down the lists. I wouldn't want to be shot/stabbed/etc. in the back before I have the legal ability to defend myself.
 
Missouri - Duty to Retreat except in Home or in assistance to an Officer.

At least this is how I understand the law per my CCW class. Tomorrow I will dig through the statue and see if I can post the actual law for MO.
 
California-In my case it was brought up at trial whether or not retreat was possible. It was in my favor that I'd retreated as much as I could.
 
Well, thats a pretty impressive list you've compiled, but where exactly did you track it down? Did you read that many opinions and look at all the statutes?
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Where the state is listed by statute, it was by direct reference to a statute listed with the State legislature's website.

Where direct statute could not be found, I searched for at least one specific citation by case law. However, the references to case law or common law were not always clear, and there may be conflicting case law. That list is not certain which is why I said the list is preliminary. As someone has already noted it may be incorrect about Oregon.

If I couldn't find a statute or specific reference to case law, the state was listed as "undetermined."
 
IIRC we do have a duty to retreat in NC, unless doing so would place us in greater danger. I'm googling it now, unsuccessfully...

We have no duty to reteat in our home, I think that applies to our place of business as well, I cat be sure, I'm not a business owner.
 
Simply stating that New York has a duty to retreat is an oversimplification.

There is no duty to retreat if you are being robbed, raped, kidnapped, or the victim of a forcible criminal sexual act.

In other situations, you have a duty to retreat only if you *know* you can withdraw with complete safety to you and others under your protection. If you have the slightest doubt, then there's no duty to retreat.

You may also use deadly force, without any duty to retreat, against a person committing arson.

This is very different from the British philosophy.

2. A person may not use deadly physical force upon another person
under circumstances specified in subdivision one unless:
a) He reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he knows that he can with complete safety as to himself and others avoid the necessity of so doing by retreating; except that he is under no duty to retreat if he is:
(i) in his dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter`s direction, acting pursuant to section 35.30; or
b) He reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or
c) He reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.
Click to expand...
 
Additional Info:

NJ: The "duty to retreat" exists even in the home, unless the encounter was "sudden", and immediate defensive action was necessary.

In other words, if you stumble into the kitchen @ 3am and find a guy there, it is a very different scenario from "I heard the glass break, grabbed my gun, and went to investigate"

PA: PA law includes the phrase "COMPLETE" safety, and there is no retreat necessary if others are present, and you're defending them. (And naturally, you're defending everyone present except the BG...;) )

Probably a bigger differentiating factor between states is whether force or lethal force can be used to protect property, or whether it's reserved strictly for life & limb.
 
That's great research, and thanks.

But you missed CT, where my brother lives -- which led me to check Packing.org, and a link there took me to the statutes:

Sec. 53a-19. Use of physical force in defense of person. (a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
Click to expand...

It appears that CT is a duty to retreat state except in the home or place of business. By statute.
 
In GA there is no duty to retreat period.

OCGA 16-3-21 is clear and the law of the land, the only case law pertaining to a “duty to retreat†applied to LEO’s and it was ruled by GA Supreme Court in the 60’s then again in the late 80’s IIRC that the police had no duty to retreat after a GA State Trooper shot and killed a man on a traffic stop who later turned out to be mentally ill, the family sued stating that medical treatments had shown the way to deal with the dead man was to “give him his space and he would calm downâ€, courts said the Trooper had no way of knowing the facts at the time of the stop and further if even the Trooper had, he has no duty to retreat other than in his own discretion to protect his own life.
 
I'm sure dubious about a the duty of a tenant-in-residence to retreat, in Texas. Case law almost invariably holds that there was no duty, in cases of self-defense against any sort of invader. There may have been exceptions, but I've never seen/heard that mentioned.

"On the street", Texas law calls for some effort to resolve disputes if possible, but one does not have to turn and run.

Art
 
I have a physical disability that makes it impossible for me to run, jog, or even move quickly for short distances. There is no gray area about this, and my orthopedic surgeon will be the first to confirm it. I've often wondered if that automatically absolves me of my duty to retreat in a life-threatening situation?
 
In Arkansas, there is a duty to retreat only in public, not in your own home nor in your business.

And, the "duty to retreat" is qualfied with the phrase "with complete safety."

If you can "retreat with complete safety" then you have a duty to retreat.

If retreating exposes you to danger (.i.e. you are hunkered behind a parked car and the guy is shooting at you and hitting the car, and you don't want to leave your precious cover) then you don't have to retreat.

hillbilly
 
There is NOTHING "incomprehensible" about

Massachusetts law regarding the duty to retreat.

1. There IS a duty, unless:

2. You are attacked

a. IN your home, by

b. An UNLAWFUL intruder.

If you so defend yourself, you cannot be sued by the assailant and/or his heirs.

Here are the "incomprehensible" statutes:

G.L.c. 278, § 8A. Killing or injuring a person unlawfully in a dwelling; defense.

Section 8A. In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.

G.L.c. 231, § 85U. Death or injury to unlawful dwelling occupants; liability of lawful occupants.

Section 85U. No person who is a lawful occupant of a dwelling shall be liable in an action for damages for death or injuries to an unlawful occupant of said dwelling resulting from the acts of said lawful occupant; provided, however, that said lawful occupant was in the dwelling at the time of the occurrence and that he acted in the reasonable belief that the person unlawfully in said lawful dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said lawful occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall not be a duty on said occupant to retreat from such person unlawfully in said dwelling.

RTFD :rolleyes:
 
..The EMERGING TREND...

Clearly the "Emerging Trend" under case law & statutory law is towards the common-sense approach that one has no duty to retreat in one's home and no duty to retreat if there is no other choice but to defend one's self outside the home.

Many states in fact presume a "Lethal Threat" exists in home invasions and home burglaries, thus eliminating a potential legal hurdle in the decision to defend one's self (and family).
 
There is NOTHING "incomprehensible" about Massachusetts law regarding the duty to retreat. RTFD :rolleyes:
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Thanks for clearing up that in Massachusetts you don't have to hide in your own home. I stand in awe of your superior skillz in navigating the state's legislative website.

THE GENERAL LAWS OF MASSACHUSETTS

I guessed that it was a retreat state, but could not find any statutes using obvious search terms and didn't think to look under the chapter on "Trials and Proceedings before Judgement."

I did notice they sure have a lot of laws on the books under Chapter 272. Crimes Against Chastity, Morality, Decency And Good Order including the crime of "Blasphemy." But I never did find any statutes about defense, so the reference you pointed out is a good start.

So thanks again for setting the record straight on Massachusetts.
 
States Where Duty To Retreat Is Basically Moot Because The Right To Carry Concealed Outside Home Is Denied
Kansas (no duty to retreat by case law)
Illinois (Duty to retreat by statute-defense of home requires “violent, riotous, or tumultuous†attempted entry)
Nebraska (duty to retreat except home by statute)
Wisconsin (duty to retreat by case law)
Click to expand...

You're wrong. Illinois has no duty to retreat. I don't know where you got your information, but it's totally wrong:

http://www.ilga.gov/legislation/ilc...00&SeqEnd=9500&ActName=Criminal+Code+of+1961.
(720 ILCS 5/Art. 7 heading) ARTICLE 7. JUSTIFIABLE USE OF FORCE; EXONERATION

(720 ILCS 5/7‑1) (from Ch. 38, par. 7‑1)
Sec. 7‑1. Use of force in defense of person.

(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.
(b) In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7‑4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.
(Source: P.A. 93‑832, eff. 7‑28‑04.)

(720 ILCS 5/7‑2) (from Ch. 38, par. 7‑2)
Sec. 7‑2. Use of force in defense of dwelling.
(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other's unlawful entry into or attack upon a dwelling. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent, riotous, or tumultuous manner, and he reasonably believes that such force is necessary to prevent an assault upon, or offer of personal violence to, him or another then in the dwelling, or
(2) He reasonably believes that such force is necessary to prevent the commission of a felony in the dwelling.
(b) In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7‑4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.
(Source: P.A. 93‑832, eff. 7‑28‑04.)

(720 ILCS 5/7‑3) (from Ch. 38, par. 7‑3)
Sec. 7‑3. Use of force in defense of other property.
(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other's trespass on or other tortious or criminal interference with either real property (other than a dwelling) or personal property, lawfully in his possession or in the possession of another who is a member of his immediate family or household or of a person whose property he has a legal duty to protect. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent the commission of a forcible felony.
(b) In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7‑4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.
(Source: P.A. 93‑832, eff. 7‑28‑04.)

(720 ILCS 5/7‑4) (from Ch. 38, par. 7‑4)
Sec. 7‑4. Use of force by aggressor.
The justification described in the preceding Sections of this Article is not available to a person who:
(a) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(b) Initially provokes the use of force against himself, with the intent to use such force as an excuse to inflict bodily harm upon the assailant; or
(c) Otherwise initially provokes the use of force against himself, unless:
(1) Such force is so great that he reasonably believes that he is in imminent danger of death or great bodily harm, and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(2) In good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
(Source: Laws 1961, p. 1983.)
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You should note that the part about the entry being violent, tumultious or riotous is only one condition that would justify the use of force. You kind of ignored paragraph (2) He reasonably believes that such force is necessary to prevent the commission of a felony in the dwelling.

If someone has entered your home with the intent to commit a felony or theft, notice the statute says theft, not felony theft, then he/she has commited a Burglary which at it's lowest level is a Class 2 Felony.

http://www.ilga.gov/legislation/ilc...0&SeqEnd=45100&ActName=Criminal+Code+of+1961.
(720 ILCS 5/Art. 19 heading) ARTICLE 19. BURGLARY

(720 ILCS 5/19‑1) (from Ch. 38, par. 19‑1)
Sec. 19‑1. Burglary.
(a) A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in the Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft. This offense shall not include the offenses set out in Section 4‑102 of the Illinois Vehicle Code.
(b) Sentence.
Burglary is a Class 2 felony. A burglary committed in a school or place of worship is a Class 1 felony.
(Source: P.A. 91‑360, eff. 7‑29‑99; 91‑928, eff. 6‑1‑01.)
Click to expand...

So essentially you have no duty to retreat from an intruder in your home. Now if you come home and find the drunk that lives the next block over passed out at your kitchen table, you'd be hard pressed to justify shooting him. But the law doesn't state you have to find the intruder with your DVD player and the family jewelry in his pocket either.

I don't see how you say that the defense of person section in the law is rendered moot by no concealed carry. Do you think that a firearm is the only means of defense available to you? You can be in just as much trouble for beating someone to death with a tire iron as you can for shooting him.

Jeff
 
Here's some information on California as answered by a Torts Teacher regarding Self Defense and when one has a Duty to Retreat. I also asked her if California would allow a Civilian to invoke the Tueller Drill as a potential defense to a Civil Suit, but she was not familiar with the Tueller Drill.
One note: The Tueller Drill is cited in a 2005 California Case, and was instrumental in the courts holding... Ill have to find it real quick and let you know the details of it.

But here is some information regarding California Duty To Retreat

Note that there is no duty to retreat when Non Deadly Force is used, but that one would only be allowed to use Non Deadly Force in Return .




Duty to Retreat

1. Non-Deadly Force Used – No duty to retreat before using force.
2. Deadly Force: Force intended or likely to cause death or serious bodily harm to the attacker.
a. Majority: Says no duty to retreat before using deadly force, as long as you reasonably believe (subjective) that you have to use it to repel or prevent an attack.
b. Minority: Restatement’s Position. There IS A DUTY TO RETREAT without using deadly force if you can safely do so.
Exception: Doesn’t apply when you are attacked in your own home, by someone who doesn’t live there.
 
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