Duty to retreat?

[outfieldjack]

Quick question... Does anyone know of a State where "Duty to retreat" applies in a persons home?

For example.... if someone broke in to your house and you could easily walk out the back door as opposed to standing your gound and shooting?

Thanks,
Jack

 

[Aguila Blanca]

I can't remember what state, but there are some states in which you must retreat within the home. It's not many. Can't think of much that's dumber than not allowing people to defend their own homes against intruders and forceful entry.

 

[beerslurpy]

In 1532, the Henry VIII enacted a general self defense exception to homicide which did not include a duty to retreat. Common law pretty much followed suit for 400 years.

During the 1960s, many US jurisdictions began to judcially impose a duty to retreat, or legislatures began to do so. It was felt to be "more civilized."

There is a list somewhere that has all the states categorized by judicial or stutuatory duty of retreat or whether they lack it altogether. I just cant find it at the moment.

 

[Zen21Tao]

http://www.packing.org/state/south_carolina/

South Carolina

Duty to Retreat

As a general matter, before using deadly force, even in self-defense, you have a duty to retreat in the following circumstances:

* on a public street or highway, even when in own automobile. State v. McGee, 185 S.C. 184, 190, 193 S.E. 303, 306 (1937).
* in a store where the public is invited. State v. Peeples, 126 S.C. 422, 120 S.E. 361 (1923).

As a general matter, before using deadly force, even for self-defense, there are situations in which you have no duty to retreat. These include:

* in addition to in your home, there is no duty to retreat within your home’s curtilage. State v. Jackson, supra, or beyond the curtilage. State v. Quick, 138 S.C. 147, 135 S.E. 800 (1926).
* in your place of business, even if the aggressor also has a right to be there. State v. Kennedy, 143 S.C. 318, 141 S.E. 559 (1928).
* if a guest in home of another unless required to leave by the householder. State v. Osborne, 202 S.C. 463, 25 S.E.2d 492 (1942).
* where attacked in your “club room”. [“A man is no more bound to allow himself to be run out of his rest room than his workshop.”]
* where both parties own the premises, neither has the duty to retreat where the other is the aggressor. State v. Gibbs, 113 S.C. 256, 102 S.E. 333.
* Where both live in the same home, neither has the duty to retreat if the other is the aggressor. State v. Grantham, 224 S.C. 41, 77 S.E.2d 291 (1953).
* Where both are guests in the same home, neither has the duty to retreat if the other is the aggressor. State v. Smith, 226 S.C. 418, 85 S.E.2d 409 (1955).
* Where both are fellow workers on same job site, neither has the duty to retreat if the other is the aggressor. State v. Gordon, 128 S.C. 422, 122 S.E. 501 (1924).
* you need not retreat “if to do so would apparently increase [your] danger.” State v. McGee, 185 S.C. 184, 190, 193 S.E. 303, 306 (1937).

I live in Florida. Recently legislation was passed here to extend the NO duty to retreat from private dwellings to public areas as well. And guess what, not shoot out in the streets like the antis perdicted.

 

[geekWithA.45]

NJ has some muddy language in its statutes that imply duty to retreat in the home unless the encounter was sudden, and retreat wasn't feasible.

They clarify, however, that you have no duty to actually flee your home, merely be chased to the furthest closet.

 

[merk]

I think the duty to my family is more important than some phoney "duty to retreat" BS.


These laws are coming from fools with 10 foot security gates and six figure security systems.

 

[JJpdxpinkpistols]

Here in the grand state of Oregon, there is no duty to retreat when within a dwelling and when protecting human beings. There is a duty to retreat out on the street, however. Basically, if you *can* get away, you should. ::shrug::

I don’t really have a problem with Duty to Retreat, the way Oregon interprets it.

Simple truth of the matter is that I *don’t* want to shoot someone. I am fairly certain it would spoil my entire week. I don’t wanna deal with my hearing being damaged, I don’t wanna deal with the cleanup, and I would really NOT like to see the inside of a jail cell. I would try to Retreat even if the law wasn’t there…failing that, then I am resigned to having a bad week , and doing my level best to make sure that the other fellers week is worse

Requiring the homeowner to retreat inside their home is just plain silly. OTOH, there could always be the guy that would shoot to defend his IROQ in the driveway (true story from my CHL class.) :banghead:

 

[Graystar]

In New York you have a duty to retreat (only if you can do so with completely safety) from, what amounts to, any escalating altercation. This is so no matter where you are.

However, if you are the victim of the violent crimes of rape, kidnapping, sodomy, or robbery (or defending someone who is) then there is no duty to retreat, regardless of where you are. Also, in your home you can use deadly force against a burglar with no duty to retreat.

It’s nice that NYS recognizes the importance of defense against criminal acts. Now if they would just let us carry instruments of defense...

So if you almost hit someone with your car, and they go ballistic on you and pull a knife, but you’re safe in your car, then you must drive away and not engage the person. But if that same person pulls a knife and says your money or your life then you can roll down your window and use deadly force immediately...even though you could have safely driven away.

I really can’t think of a situation where you can safely retreat from a person who is about to use deadly force upon you in your home because the person can always chase you. It’s risky to try to get a door closed and locked behind you. So practically speaking, NY law will support a person who doesn’t retreat from an escalating altercation in the home. However, the requirement is technically there. And remember, this is only for altercations that get out of hand. You never have to retreat from a violent criminal (or burglar in the home.)

 

[Byron Quick]

I don't have the physical ability to retreat in a timely and safe manner, so the applicable statutes are moot to me. Just more hassle with the DA, if it comes to it and I hope it never does.

Requiring the homeowner to retreat inside their home is just plain silly. OTOH, there could always be the guy that would shoot to defend his IROQ in the driveway (true story from my CHL class.)

I won't shoot to defend property in most circumstances. However, I believe the logic of statutes forbidding such action to be utterly fallacious. For the vast majority of people, that IROC was purchased by paying a substantial percentage of their annual income of a period of years. This is not "only" money. Most of us have traded a substantial portion of our life span for that money. At this point, criminal coddlers will say that insurance will make the loss good. But they ignore the mechanics of a profitable insurance business,i.e., the way in which the insurance company makes the loss good and also remain profitable is to raise the insurance rates of us all. Therefore, spreading the loss among us all. Personally, I'm not willing to pay the difference to protect a thief's right to life.

I spent years in retail sales. Studies I saw at the time stated that prices nationwide were inflated 10 to 11 percent due to shoplifting. If it resulted in a 10 percent decline in the prices paid by folks on a fixed income, the stores could shoot shoplifters and put their heads on spikes out front. For theft, burglarly, and violent crimes, I have absolutely no inclination to protect the lives of the perpetrators from their victims. If a life of crime was known to be a short ticket to a body bag, there'd be much less crime. A fairly substantial portion of our population has accepted the occasional prison term as simply a part of life. Even cool. I doubt they'd adopt the same attitude of death dealt by their victims on a frequent basis.

 

[Bartholomew Roberts]

In 1532, the Henry VIII enacted a general self defense exception to homicide which did not include a duty to retreat. Common law pretty much followed suit for 400 years.

I think you have misunderstood the doctrine. Basically law then was much different...prior to 1532 you could face both execution and forefeiture of property for any type of homicide not specifically allowed by law. Even if you were pardoned by the king, you would still forfeit property. In 1532, Parliament removed the forfeiture of property for homicides in self defense. In 1789, Blackstone proposed the legal theory that only homicides called for by law could be perfectly justifiable, all other killings, even in self-defense could only be excused because they were not absolutely free from guilt. As a result, you had a duty "to retreat to the wall" in excusable homicides. Check this link for the history behind self-defense.

America on the other hand has never really gone for that doctrine with Justice Oliver Wendell Holmes making the famous quote that "detached reflection cannot be demanded in the presence of an upraised knife".

Only 13 states and D.C. have a duty to retreat and most of those make exceptions for people inside their own homes. However some of those exceptions are pretty murky... if you do a search on the "Real Life Shooting Scenarios" in S&T, we did a case where a man was convicted because he failed to retreat inside a home where he was a privileged guest (so was the attacker though). Also in People v. Aikens, the defendant had been stabbed previously by his attacker, had been threatened with death multiple times, and his attacker had just stated "I am going to kill you" while reaching for his knife. Defendant was standing in his own doorway and hit attacker in head with lead pipe. NY ruled he had a duty to retreat and convicted him of manslaughter.

 

[JJpdxpinkpistols]

I won't shoot to defend property in most circumstances. However, I believe the logic of statutes forbidding such action to be utterly fallacious. For the vast majority of people, that IROC was purchased by paying a substantial percentage of their annual income of a period of years. This is not "only" money.

Yes, it *is* only money. Nothing more, nothing less.

Do you have any idea how many MILLIONS of dollars the average person makes over a lifetime? I just did some quick math, and I will make about 3.8 MILLION dollars by the time I am done at 65. Now, I will spend most of that, true 'nuff, but money is just money. Love it if you want...it won't love you back.

Look, you wanna perferate some BG cuz he wants to steal your 15 year old car, go for it. One less BG. Me? there is nothing that I bought with money that is worth shooting someone over (except perhaps my guns themselves for obvious reasons ). I like the view of the jail from this side, and am gonna keep it that way.

 

[JMusic]

Head on a stick!!! I like that thinking Byron.

 

[ArmedBear]

Would I shoot someone just to defend property? It's REALLY hard to think of a time when I would. I have insurance, and so should you.

Would I shoot someone to keep him from getting my gun(s)? Yes, but that's obviously because he's going to use them on me or someone else.

BUT.... Do I think that, in my own home, I should have to determine what someone's intentions are, after he has forcibly entered? Hell no! I shouldn't be required to take any more unnecessary risks; my life is already in danger, as is my family's. I suppose if he turns and runs, I would have no reason to shoot him, but if he advances or reaches for anything, I should be allowed to fire until he is down and no longer a threat.

I do not believe that someone, in his/her own home, should bear the burden of determining the exact intentions of someone who has broken and entered. If murder or rape is his intention, then hesitation can be suicide.

 

[Johnnybgood]

How do I put this.

I would shoot someone for stealing or destroying my property if it was legal. Not just because it is my property. I would shoot them because they are criminals and when you let them get away with such behavior it just fuels their and others like them. When justice is swift and sure you deter others from commiting the same crimes thus you and your property and others as well remain safe. (or safer)
If our forefathers had witnessed some of the riots seen today they would have armed themselves and gone to battle, thus insuring the others who might be thinking of doing the same thing would think again.
On subject. I do believe illinois has a duty to retreat clause but I don't know where to find it.

 

[JJpdxpinkpistols]

I do not believe that someone, in his/her own home, should bear the burden of determining the exact intentions of someone who has broken and entered.

I agree 100%

Someone is in my house, they gonna findselves listening to the sounds of silence...12g is LOUD indoors. If that fabled noise scares 'em off...then today is their lucky day!

"the stores could shoot shoplifters and put their heads on spikes out front"

I don't know that putting heads on a pike would solve anything.

Theft is inherently stupid. Theft from a residence, in an armed area is even more so.

The average criminal is not very smart and frankly they don't think they are gonna get caught. If they don't think they are gonna get caught, they aren't gonna pay much attention to a head on a pike. Might be therapeutic for the person putting the head there, but it isn't gonna do much to frighten away the average criminal. Even less the average hoople. Most hooples weren't the sharpest pencils in the case to begin with, and then they insist on crippling that 1/2 brain with chemicals.

Think putting a hobble on a three-legged horse, here.

Showing the horse a decapitated horse won't have much effect, sadly. Bestto just shoot 'em and shove em in the walkin cooler. You can get a good 20-30 of 'em stacked up next to the Yoplait thats out of date ;-)

 

[geekWithA.45]

As it pertains to the street:

On one hand, it's an attempt, I think, to prevent _unnecessary_ defensive shootings/killings over trivialities and misunderstandings. I think there are better ways to address that issue.

At the end of the day, "duty to retreat" clauses literally require the lawful to surrender the streets to the lawless.

You'd think that maybe that might have something to do with all the streets decent folk daren't walk down at night.



As it pertains to the home:

My mind reading abilities are completely unreliable, especially under stress, and therefore I don't care to speculate as to whether the invader is after my TV or my family's tender skin.

 

[redbearde]

Yes, it *is* only money. Nothing more, nothing less.

It wasn't that long ago that stealing a horse was a hanging offense - for good reason. Perhaps you will make almost 4 mil in your lifetime, but I'm rather certain I won't. If I see someone trying to jack my car, I'm liable to just let him. If my wife and/or kid is in the car, then I'm going to kill jack over there.

Most people comprehend the distinction between killing for stuff versus killing for people even if they don't like the fact that *my* reaction in the latter would be violent.

However, I *don't* see the difference. My wife is epileptic, and while it's usually not a problem, she may at any time sieze and I have to get her to medical attention Right pdq Now. I live out of any semblance of a metropolitan area (ambulances are not readily available), and not having transportation seriously puts my family at risk. It is rather direct in my case, but in *every* case there is an indirect risk involved in giving up your "only money" IROC-Z.

So my preference would be to perforate the aforementioned Jack, and I would sleep well that night having done so. Unfortunately, as I understand it, most places outlaw shooting someone over "mere" stuff, so my opinion would land me in jail. *shrug* That's wrong. Don't tell me "that's what insurance is for" because while I may prepare for the event with insurance, I should *not* be required to have insurance just so I have the financial ability to *not*shoot a criminal in the act of perpetrating a violent crime.

It's like telling me it's okay that a reckless driver totaled my car because I was wearing a seatbelt and I had an airbag (mandated that *I* pay for by federal law, btw).

Byron's right: we pay for criminals' behavior.

...and I think the criminal should.

 

[beerslurpy]

Thanks Bart. I knew about the forfeiture bit even in case of self defense but I wasnt sure about the later evolution of common law because I havent taken any classes in it yet.

I like the Holmes quote.

Oh and the Henry VIII law didnt impose a duty to retreat, that was Blackstone's theory several centuries later. Although it probably did incorporate popular legal sentiment on the subject.

I dont personally think it is reasonable to expect someone confronted with an armed felon to carefully weigh the social impact of dispatching the bastard.

 

[ceetee]

... they aren't gonna pay much attention to a head on a pike. Might be therapeutic for the person putting the head there, but it isn't gonna do much to frighten away the average criminal.

May or may not frighten them away, but sooner or later, you're gonna run out of criminals, and just have blooded pikes left.

 

[cbsbyte]

No, I don't know of any state that has a duty of retreat while in one's home. Out in public yes, but not at home. Though in Mass we have a stipulation that one is not able to use force to protect personal property. I do not know how this play out if you caught an unarmed burgler at night in your home trying to take your TV, and one shot him. I quess that would be open to inturpuation by the DA.

 

[Carl N. Brown]

Some states apparently suggest that if it can be done safely,
without a reasonable fear of death or bodily harm, a householder
armed with a gun should allow the intruder an opportunity
to retreat. I believe North Carolina was cited.

That is where the duty to retreat ought to lie: on the side of
the intruder, not the householder.

Even the Brits have reasonable guidelines on this:

HOUSEHOLDERS AND THE USE OF FORCE AGAINST INTRUDERS

Joint Public Statement from
the Crown Prosecution Service and
the Association of Chief Police Officers


What is the purpose of this statement?

It is a rare and frightening prospect to be
confronted by an intruder in your own home.
The Crown Prosecution Service (CPS) and
Chief Constables are responding to public
concern over the support offered by the law
and confusion about householders defending
themselves. We want a criminal justice system
that reaches fair decisions, has the confidence
of law-abiding citizens and encourages them
actively to support the police and prosecutors
in the fight against crime.

Wherever possible you should call the police.

The following summarises the position when
you are faced with an intruder in your home,
and provides a brief overview of how the
police and CPS will deal with any such events.


Does the law protect me?
What is `reasonable force'?

Anyone can use reasonable force to protect
themselves or others, or to carry out an arrest
or to prevent crime. You are not expected to make
fine judgements over the level of force you use
in the heat of the moment. So long as you only do
what you honestly and instinctively believe is
necessary in the heat of the moment, that would be
the strongest evidence of you acting lawfully and
in self-defence. This is still the case if you use
something to hand as a weapon.

As a general rule, the more extreme the
circumstances and the fear felt, the more
force you can lawfully use in self-defence.


Do I have to wait to be attacked?

No, not if you are in your own home and in fear
for yourself or others. In those circumstances
the law does not require you to wait to be
attacked before using defensive force yourself.


What if the intruder dies?

If you have acted in reasonable self- defence,
as described above, and the intruder dies you
will still have acted lawfully. Indeed, there
are several such cases where the householder
has not been prosecuted.

However, if, for example:

- having knocked someone unconscious, you
then decided to further hurt or kill them to
punish them; or

- you knew of an intended intruder and set
a trap to hurt or to kill them rather than
involve the police,

you would be acting with very excessive and
gratuitous force and could be prosecuted.


What if I chase them as they run off?

This situation is different as you are no
longer acting in self-defence and so the same
degree of force may not be reasonable. However,
you are still allowed to use reasonable force
to recover your property and make a citizen's
arrest. You should consider your own safety and,
for example, whether the police have been
called. A rugby tackle or a single blow would
probably be reasonable. Acting out of malice and
revenge with the intent of inflicting punishment
through injury or death would not.


Will you believe the intruder rather than me?

The police weigh all the facts when investigating
an incident. This includes the fact that the
intruder caused the situation to arise in the
first place. We hope that everyone understands
that the police have a duty to investigate incidents
involving a death or injury. Things are not always
as they seem. On occasions people pretend a burglary
has taken place to cover up other crimes such as a
fight between drug dealers.


How would the police and CPS handle the
investigation and treat me?

In considering these cases Chief Constables and
the Director of Public Prosecutions (Head of the CPS)
are determined that they must be investigated and
reviewed as swiftly and as sympathetically as possible.
In some cases, for instance where the facts are very
clear, or where less serious injuries are involved,
the investigation will be concluded very quickly,
without any need for arrest. In more complicated
cases, such as where a death or serious injury occurs,
more detailed enquiries will be necessary. The police
may need to conduct a forensic examination and/or
obtain your account of events.

To ensure such cases are dealt with as swiftly
and sympathetically as possible, the police
and CPS will take special measures namely:

- An experienced investigator will oversee
the case; and

- If it goes as far as CPS considering the
evidence, the case will be prioritised to
ensure a senior lawyer makes a quick
decision.

It is a fact that very few householders have
ever been prosecuted for actions resulting
from the use of force against intruders.

----------------------------------------------

British news coverage of the CPS release:

An "informal trawl" of CPS records found 11 people had been
prosecuted after attacking intruders in the past 15 years, five
of whom were convicted.

They included a man who laid in wait for a burglar on commercial
premises in Cheshire, before beating him up, throwing him into a
pit and setting him on fire.

A CPS spokesperson said the figures were not definitive because
(in general) prosecutions are not listed according to whether
they were committed by a householder on an intruder.

In one of Britain's highest profile cases, Norfolk farmer Tony
Martin was jailed for life for murdering 16-year-old burglar
Fred Barras, in 1999.

The conviction was later reduced to manslaughter on appeal and
the sentence cut to five years. Mr Martin was freed from prison
in July 2003.

Tony Martin's problem was "lying in wait" for the burglars then
lying to the investigating officers. Dozens of householders who
use "weapon at hand" from cricket bat to "skeet gun" loaded
with 00 have either not been charged or exonerated.
However, it is unfortunate that UK does not recognize self
defense as a justification to own a gun.

 

[Aguila Blanca]

Look, you wanna perferate some BG cuz he wants to steal your 15 year old car, go for it.

Speaking only for myself, the only reason I would not do so is that it is illegal. I do not think it is in any way immoral to shoot some low-life who feels he has a better right than I to MY personal property that I have given away irreplaceable, unrecoverable portions of my life to earn. My 16-year old car took me about a year to earn the money it cost me to buy it. I can never get that year back if some creep steals the car.

 

[Graystar]

Yes, it *is* only money. Nothing more, nothing less.

Yes, it's only money. But for a vast majority of the country, money = life.

Do you have any idea how many MILLIONS of dollars the average person makes over a lifetime?

Someone working for 47 years making minimum wage will earn just over 1/2 million before taxes. Even a million dollars isn’t a lot when it has to be spread over 47 years. Such a person is likely to be living paycheck to paycheck, and the loss of a week’s wages or of the family car can have devastating effects.

This is why in olden days horse stealing was a hanging offense. A thief was essentially killing the person who’s horse he stole.

I believe that protection against such effects is well within our right to use deadly force to defense ourselves.

 

[Erebus]

All my property is well insured. So I don't see any reason to kill someone over property. The only object I could see shooting someone over would be a weapon. If he's after a gun, knife, baseball bat, etc than it isn't worth waiting to see if he will use it on you.

 

[migoi]

When these...

discussions of "shooting to defend property" arise I always wonder...why do we arm armored car guys?

Isn't the money they protect insured? It's just money. I an unarmed guy walked up, grabbed a sack of loot and walked off, could they use force to stop him? Deadly force?

migoi