Examples of Duty to Retreat? (NY State)

[zminer]

New York State is a "duty to retreat" state, but something in the wording of the law confuses me:

... blah blah blah... a person can't use deadly physical force 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" (retrieved from http://wings.buffalo.edu/law/bclc/web/NewYork/nyart35.htm)

Aren't situations where deadly physical force is required unsafe by definition? Or am I missing something here?

What would be an example of a situation where I would feel like I need to use deadly physical force (i.e. - a situation where I am in fear of my life, or for the lives of others) but from which I could withdraw "with complete safety"?

 

[TexasRifleman]

if he knows that he can with complete safety as to himself and others avoid the necessity of so doing by retreating"

I would assume that's why Bernard Goetz was acquitted for that crime? Trapped in a Subway car would not allow a COMPLETE retreat I suppose.

Unfortunately I think the only way you get to find out if a particular situation fits this is in front of a jury.

 

[Prince Yamato]

If you know you can't get out of the situation and that you're going to be severely harmed or killed, shoot.

NYS doesn't have the castle doctrine like a lot of the southern states, so the burden of proof is on you as opposed to the court.

 

[Standing Wolf]

NYS doesn't have the castle doctrine like a lot of the southern states, so the burden of proof is on you as opposed to the court.

Guilty until proven innocent, in short.

 

[everallm]

Typical badly written subjective and interperative law guranteed only to ensure that the American legal system remains the finest money can buy.....

Law is supposed to deal in Yes-No, Black-White, Stop-Go not Sorta, Coulda, Greyish, Maybe.

In this situation, take two identical situations differing only in that one of the "culprits" has enough money for a prominent lawyer and the other has a public defendant.

Will we see the same result........

 

[amper]

[edit] Deleted my post. I realized only after posting that you were looking for specific NY examples, rather than examples among the several states...

 

[TargetTerror]

We have a similar "duty to retreat" here in MA. The idea is that if you can safely diffuse the situation without putting yourself at risk, you are required to do so BEFORE you use deadly force. Yes it is a gray area, and yes it will probably depend on the jury as to whether or not you needed to retreat.

Lets take an extreme example to demonstrate the point. You are standing 1 foot in front of the door of a concrete bunker (the door is open/unlocked). BG is 25 yards away from you and runs directly at you with a huge ax looking something like this: Duty to retreat would require you to retreat into the bunker, where you would presumably close and lock the door.

Now imagine you are in the middle of a giant field and someone with a rifle says they are going to kill you. Retreating would be suicide, and you would be able to use deadly force immediately.

 

[amper]

The trouble here is that you may find yourself in a situation where you may justifiable believe that an assailant is "about to use" deadly force (say, by having threatened such), without having any apparent means of immediately delivering such deadly force, or where the delivery of that force by apparent means would require the assailant to chase you down (say, when the assailant is wielding a baseball bat and not within immediate striking distance).

In such a case, you are required to make an attempt to retreat. The mitigating phrase is "knows that with complete physical safety, to oneself and others", which is of course subject to a test of reasonability.


Here's the entire text of 35.15:

§ 35.15 Justification; use of physical force in defense of a person.
1. A person may, subject to the provisions of subdivision two, use
physical force upon another person when and to the extent he or she
reasonably believes such to be necessary to defend himself, herself or a
third person from what he or she reasonably believes to be the use or
imminent use of unlawful physical force by such other person, unless:
(a) The latter's conduct was provoked by the actor with intent to
cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case the
use of physical force is nevertheless justifiable if the actor has
withdrawn from the encounter and effectively communicated such
withdrawal to such other person but the latter persists in continuing
the incident by the use or threatened imminent use of unlawful physical
force; or
(c) The physical force involved is the product of a combat by
agreement not specifically authorized by law.
2. A person may not use deadly physical force upon another person
under circumstances specified in subdivision one unless:
(a) The actor 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 or she knows that with
complete personal safety, to oneself and others he or she may avoid the
necessity of so doing by retreating; except that the actor is under no
duty to retreat if he or she is:
(i) in his or her 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 or she 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 or she 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.

 

[zminer]

Now imagine you are in the middle of a giant field and someone with a rifle says they are going to kill you. Retreating would be suicide, and you would be able to use deadly force immediately.

a situation where you may justifiable believe that an assailant is "about to use" deadly force (say, by having threatened such), without having any apparent means of immediately delivering such deadly force

These are some helpful examples - thanks.

I have been trying to come up with some of my own examples where this kind of thing might occur. The closest thing I can come up with is, for example, I'm at a party and I accidentally spill a drink on the host's sofa. He gets mad, pulls a gun, and yells, "If you're not out of here in one minute, I'm going to shoot you!" Presumably I could withdraw "in complete safety" (i.e. - as long as I leave, he's not going to shoot me) even though this is clearly a tense situation, and one in which I could reasonably be expected to believe that someone is about to use deadly force against me.

Still, even that example is not especially good. I mean, if someone is imbalanced enough to pull a gun on me, how am I to know that I will really be "in complete safety" if I withdraw? What's to say that the guy isn't going to shoot me for the hell of it as soon as I try to leave?

I'm going to try to find some instances of NY cases of self-defense shootings to see what kind of standard is typically applied by the courts.

 

[TargetTerror]

Zminer, the reality is that duty to retreat is a HUGE gray area, and the pendulum will likely swing based more on the outlook of the local population than on anything else. I live in Cambridge, MA, and if I ever had to use a gun to defend myself I face the steepest, slipperiest, nastiest hill you can imagine to convince my "peers" that it's OK to even own a gun, let alone defend yourself with it.

Let us know what cases/case law you come up with. I'm curious as to how the courts have applied it.

 

[zminer]

I'll just post a few of these here. I'm not going to post full text, so we're not getting into copyright issues. I'll try to keep it to just the relevant parts.

-----

Albany Times Union (Albany, NY) (May 25, 2004)

-----

A jeweler who fired a revolver at three men during a heist at Crossgates Mall on Saturday has a pistol permit that prohibits him from carrying the weapon except for hunting and target practice, authorities said.

Albert Hannoush, 29, of Colonie, was arrested by Guilderland police a few hours after the incident and charged with a felony count of reckless endangerment. He was issued a permit for the revolver in 1998, records show.

...

Hannoush is accused of endangering the public, and the fleeing larceny suspects, when he fired a single shot at their getaway car in a parking lot at Crossgates Mall, according to court records. The bullet apparently didn't strike anyone, although police have not found the bullet or the three responsible for the heist.

...

Under state law, a merchant cannot fire at a larceny suspect who is running away, according to legal experts. The law prescribes that a person, including merchants, has a "duty to retreat" unless their own life or someone else's is in danger, they said.

 

[perpster]

except that the actor is under no
duty to retreat if he or she is:
(i) in his or her dwelling and not the initial aggressor;

Sounds like NY DOES have the Castle Doctrine.

 

[zminer]

The Buffalo News (Buffalo, NY) (Oct 12, 2004)

A service station employee found himself on the wrong side of the law when he allegedly shot a suspected robber and ended up behind bars.

Michael J. Budd, 27, of Amherst Street, who was arrested Monday, is accused of grabbing the gun of Joseph P. Davis, 18, of East Ferry Street, chasing him and then shooting him in the left arm. Police said Davis was trying to hold up an Elmwood Avenue gas station Sunday night while Budd was working.

Davis, who was treated in Erie County Medical Center, was charged with two counts of robbery and criminal possession of a weapon. Budd was charged with second-degree assault.

...

Police on Monday said Budd was arrested because the shooting was unjustified.

"Under the penal law, a citizen has the duty to retreat if he or another person is not in imminent danger of being killed themselves or suffering serious physical injury," said Capt. Mark D. Morgan, commander of the Major Crimes Unit.

"Protecting yourself is one thing, but when there is no immediate threat to your safety, that's another," Detective Sgt. Philip Torre said.

...

At 9:25 p.m., Davis entered Joe's Service Center/Sunoco gas, 1602 Elmwood Ave., at Amherst Street, pointed a gun at Budd's neck and demanded money, police said.

"The clerk was able to wrestle the gun away from the defendant, who fled the scene," Morgan said. "The clerk gave chase and fired two shots at Davis, striking him in the left arm with one."

Budd then chased Davis to the 200 block of Bedford Avenue, where Davis collapsed, police said.

When Northwest Officers Anthony McHugh and Shawn Dowell arrived at the scene, Budd handed them a loaded .40-caliber handgun.

 

[zminer]

Albany Times Union (Albany, NY) (April 30, 1998

A grand jury on Wednesday indicted the Malta man accused of swinging a baseball bat at an off-duty sheriff's deputy and cleared the officer who shot the man three times.

...

Police say a case of mistaken identity prompted Rice to swing the bat at Deputy Bryant M. Kolner II on March 18 in Round Lake. Rice was sitting in his van outside his girl- friend's house and watching for a man who had allegedly beaten her days earlier. Kolner, who lives nearby, pulled alongside to check on a report of a suspicious vehicle. Rice said he thought Kolner, who was not in uniform, was the woman's ex-boyfriend. A bat-and-pistol fight followed.

The indictment does not address one of the biggest points of contention in the incident: whether Kolner told Rice he was a cop. The deputy says he twice told Rice he was a police officer before shooting; Rice says Kolner identified himself only after pulling the trigger three times.

...

"The grand jury simplified the whole case," District Attorney James A. Murphy III said. "They took those issues -- whether he was a police officer on duty or off duty, whether he's a police officer 24 hours a day, whether he identified himself or not -- out of the case.''

And the grand jury found no evidence of criminal conduct by the 46-year-old deputy.

"I can interpret the grand jury's decision as saying Mr. Kolner's use of deadly physical force -- which is the gun -- was justified because he was being confronted with deadly physical force, which is Mr. Rice with the baseball bat,'' Murphy said. "Mr. Kolner has a duty to retreat, unless he's in his own home. And the grand jury found he retreated as best he could.''

Kolner's attorney, Frederick Rench, said the deputy was cornered between a bat-wielding man and the open door of Kolner's sport-utility vehicle. ``Retreat to where?'' Rench asked. ``If he runs to the left, the guy can hit him in the head with the bat.''

No matter who Rice thought the deputy was, there's no justification for assaulting someone with a bat, Rench said.

 

[zminer]

These are the best examples I could come up with quickly. They are different, but potentially useful:

#1 at first seems the least useful, as it seems to be specific to retailers. However, it illustrates the same point as #2: once the encounter is over, you can't pursue it even if you were potentially in danger of deadly physical force a few moments earlier.

#3 is interesting because it establishes that non-firearms can be seen as deadly weapons under New York State law, and provided that you have retreated to an acceptable degree (whatever that means) you're justified in shooting someone even if they're only threatening you.

Interesting. I may dig deeper into this, but this is some food for thought for now.

 

[zminer]

One more, from http://www.claytoncramer.com/DutyToRetreat.html :

At some point, Badgett went out to the hallway in front of Aiken's door, and made a fatal mistake. According to Aiken--and the courts gave Aiken the benefit of the doubt, and accepted Aiken's version of what happened--Aiken "continued standing in the doorway, never going into the hall, when the victim reached into his pocket, came up to defendant's face 'nose to nose,' and said 'he was going to kill' him. Believing he was about to be stabbed again, defendant struck the victim on his head with the metal pipe, killing him."

I can't say that that Aiken's fears were unreasonable. Badgett had stabbed him in the past. Badgett had repeatedly threatened Aiken with death. Badgett had now approached Aiken, yelling at him, and was close enough to be dangerous with a knife. Under the same circumstances, with Badgett's history of criminal violence, I might have reacted the same way. So why did the police arrest Aiken, and why was Aiken convicted of manslaughter?

Aiken argued that New York law says a person doesn't have to retreat from a threat if he is in his own home, and that standing in his doorway was "in his own home." New York's courts did not agree. The state high court (in this case, the New York Court of Appeals), decided that an apartment doorway is a "hybrid private-public space" in which a person doesn't have the same reasonable expectation of seclusion as in a home.

 

[mljdeckard]

Even with a 'stand your ground' law, I would be VERY careful not to lean on it too hard. Just because technically, legally, you can get away with killing someone doesn't mean you still shouldn't do everything you can to avoid it, even if that means backing up as you shoot.

Just ask a rookie DA looking to make a name for himself.

 

[zminer]

This last case demonstrates what TargetTerror said above: your fate appears to vary based on the whim of local courts. If they're willing to split hairs about whether your doorway is technically your house or not, it seems like a lot of things could be in question.

I guess I can see making this distinction if the case involved someone shooting from their doorway and killing someone who was outside the house, but it also seems like that might be a case of "cross that bridge when we come to it."

 

[TargetTerror]

Good finds. We just covered this issue in my criminal law class a few weeks ago (I'm a first year law school student). Concept such as duty to retreat are always made more clear when given the context of a case or 5.

Sounds like NY DOES have the Castle Doctrine.

Castle Doctrines are generally different from duty to retreat. Duty to retreat applies anywhere outside of your own (or in your home in MA, I think ). Castle Doctrines simply waive this duty, if present, when in your home. I'm not positive, but I believe the law is unclear as to whether or not your property is considered your home, and thus protected under a castle doctrine. Assume its not to cover your *ss.

#1 at first seems the least useful, as it seems to be specific to retailers. However, it illustrates the same point as #2: once the encounter is over, you can't pursue it even if you were potentially in danger of deadly physical force a few moments earlier.

The language specific to retailers is immaterial for these examples. Your analysis for #2 is the key point. Force can only be used WHILE you are in fear for your life or severe bodily harm. If a BG is leaving, then, by definition, he is no longer a threat. At that point, you have no legal defense if you launch an attack, as now you are escalating the situation and have just become the initial aggressor. Oh, and in doing so, you just waived the ability to any self-defense stemming from the BG's reactions to your escalation (you can regain that right, but now YOU must back down, and the BG must escalate). Read United States v. Peterson for a good example/analysis of this. (PM me if you need the text of the case)

#3 is interesting because it establishes that non-firearms can be seen as deadly weapons under New York State law, and provided that you have retreated to an acceptable degree (whatever that means) you're justified in shooting someone even if they're only threatening you.

Prosecutors have tried to brand anything and everything as a deadly weapon when prosecuting BGs. We had to do research on this for MA cases, and the list included shod feet, rings, space heaters, and the ocean. Whether a prosecutor will be as "liberal" with calling things a deadly weapon when it is to bolster your self defense claim remains to be seen. Use your instincts and remember the law: you must perceive that your life is in imminent danger or there is an imminent threat of grievous bodily injury. I believe there can be a subjective and objective element for determining whether there was an actual threat. Ie, 1) would a reasonable person in the same situation think there was an imminent threat to their life or body and 2) did YOU actually think that there was an imminent threat to your life or body. Whether either or both of these elements is part of the law depends on jurisdiction. But, if you can say "yes" to both, you should be well on your way to an acquittal.

There IS a difference between what a reasonable person would think and what you think. Say someone comes at you with a bat. If you personally don't fear for you life or body, even though most people would, you aren't justified in using deadly force. Conversely, if a small old lady attacks you with a wet newspaper, if you are in actual fear for your life or body as a result, a reasonable person probably would not be, and you likely would be convicted.

This last case demonstrates what TargetTerror said above: your fate appears to vary based on the whim of local courts. If they're willing to split hairs about whether your doorway is technically your house or not, it seems like a lot of things could be in question.

MLJ, normally I'd agree with you on the flightiness of the courts (1 semester in and I'm already a cynic of the system I'll be a part of ). With the facts given in this example, though, I would liken the situation to the bunker analogy I gave above. Think about it. You are standing in your doorway. You can step inside your home and lock your door. That would put you in a safe place, and thus there is the duty to do so. Now, if you attempted to do that but the BG was too quick, you would then be able to defend yourself. Even in a stand-your-ground state, I would STILL recommend a retreat in this case (and any case). Any attempt to deescalate and avoid having to use force of any kind will only help you and bolster your defense.

This next bit of advice is very important, but is understandably very hard to do, especially under the gun, so to speak. As an event unfolds, imagine you are sitting on the witness stand explaining to the jury why you are doing what you are doing. This is useful b/c 1) you will need to do this anyway, and now you are looking around at pertinent info you might not otherwise catch and 2) it forces you to analyze the situation in the proper legal context. #2 is important b/c you are doing so AS THE SITUATION UNFOLDS. That lets you CHANGE YOUR BEHAVIOR TO BE ON THE CORRECT SIDE OF THE LAW.

That last bit is basically "thinking like a lawyer," which schools charge a hefty sum to get you to do and doesn't come overnight. Practice by observing strangers walking down the street, paying attention to their actions, and looking around you for safe places to retreat to. Analyze the scene BEFORE you get to them, that way, if SHTF, you have already decided what to do and you just ACT. Then, in court, you can confidently go through your analysis of the situation and why you felt your actions were your only option.

Sorry for the long post...damn insomnia...:banghead:

 

[zminer]

Castle Doctrines are generally different from duty to retreat. Duty to retreat applies anywhere outside of your own (or in your home in MA, I think ). Castle Doctrines simply waive this duty, if present, when in your home.

It appears to me from New York State law that, as long as I am inside my home and a reasonable person would feel that I am in danger of being killed or grievously injured, I am allowed to fight back with deadly force. However, it seems like this only applies up until the point where I am no longer in danger of deadly physical force myself, so even if I am in my own home and the bad guy breaks off the attack and flees, I am compelled not to attack him further. Or, at least, that's what I get from the law - I could be totally wrong.

Prosecutors have tried to brand anything and everything as a deadly weapon when prosecuting BGs. We had to do research on this for MA cases, and the list included shod feet, rings, space heaters, and the ocean.

THE OCEAN?! The law is a completely different world, man...

imagine you are sitting on the witness stand explaining to the jury why you are doing what you are doing

This is really good advice. There is an argument to be made that, in the heat of the situation, it may be difficult to think dispassionately enough to evaluate the way that a jury would while sitting safely in a court room. But, at the same time, there are a lot of situations which are not instantaneous, in the way that a bank robbery is (suddenly there is a gunman behind you and you have a split-second to decide whether to draw or not). It might be something like a disagreement in a parking lot - you've got a few seconds or a few minutes after someone swerves at you and flips you off to decide how to react. Think to yourself how you would judge someone who was in your situation, especially if there is any way that you could have de-escalated things. That way, if you calm the situation down, you never have to worry about whether or not to pull a gun. After all, the best way not to go to jail is not to have to go to court in the first place!