List of states with duty to retreat

[RyanM]

Is PA not generally considered a duty-to-retreat state? I assumed it was. I mean, I live in PA, and so I checked the laws, but I figured it was just lumped in with the "places that haven't yet passed 'stand your ground' laws." It may just not have received a lot of media attention, perhaps?

Pretty sure it isn't. And like I said, I'm almost positive that case law has upheld a reasonable definition of "complete safety," which would make it effectively "stand your ground."

 

[cloudedice]

Very helpful so far, thanks.
...
Yet CT is commonly known as a duty to retreat state, and PA is not. I'm pretty certain that PA case law has upheld a reasonable definition of "complete safety;" i.e., if you're being mugged by an unarmed, naked, quadruplegic man who has no wheelchair, then you are not justified in using deadly force. But if there is any risk whatsoever of being pursued, shot in the back, have something thrown at you, etc., you have no obligation whatsoever to retreat, as you do not have "complete safety." Has CT case law upheld a goofy definition of "complete safety," or is this just overzealous interpretation of state law?
...

CT's list of General Statutes have a 1-2 sentence summary of case law related to each section of law: http://www.cga.ct.gov/2007/pub/Chap951.htm

Sec. 53a-19. Use of physical force in defense of person. ..SNIP already posted, more or less, by RynaM. See link for full text...

(1969, P.A. 828, S. 19; 1971, P.A. 871, S. 5; P.A. 92-260, S. 4; P.A. 05-180, S. 1; P.A. 06-196, S. 184.)

History: 1971 act specified that "reasonable" physical force is justified in Subsec. (a); P.A. 92-260 made technical changes; P.A. 05-180 amended Subsec. (b) to include a special policeman appointed under Sec. 29-18b within the purview of Subdiv. (1) and make technical changes for the purpose of gender neutrality; P.A. 06-196 made a technical change in Subsec. (b)(1), effective June 7, 2006.

- A defendant is entitled to a theory of defense instruction as a matter of law where evidence under this section is before jury.
- Duty of retreat where aggressor is co-occupant of dwelling discussed.
- Determined failure to instruct jury that defense of self-defense was applicable to lesser included offense was harmless error and reversed judgment of appellate court in State v. Hall, 17 CA 502.
- Subjective-objective test under section applies only to defendant: subjectively, defendant must believe that the use of deadly force is necessary, and objectively, that belief must be reasonable.

- Sufficiency of jury instructions re duty to retreat discussed.
- Statute construed to apply to person who also is usually lodged in those premises at night.

- Use of deadly force not justified when attack by assailants on third person had stopped and assailants were leaving.

Subsec. (a):

- Not only must defendant's belief in the type of threat facing him have been reasonable, but the degree of force used in response must be evaluated for reasonableness as well.

- The subjective-objective inquiry into defendant's belief regarding the necessary degree of force requires jury to make two separate affirmative determinations in order for defendant's claim of self-defense to succeed.
- In the case of self-defense, eyewitness testimony of prior specific acts of violence perpetrated on defendant by his or her victim are admissible to show defendant's state of mind at the time of the killing.
- State proved beyond a reasonable doubt that the defendant was not justified in using deadly physical force.
- Where a particular jury instruction, when viewed in isolation, could have been construed as dictating a purely objective standard, it was held that the charge as a whole, adequately instructed jury as to both the subjective and objective aspects of the test involved in a self-defense analysis.
- Trial court improperly instructed jury on defendant's claim of self-defense by removing from its consideration the disputed factual issue of whether defendant used nondeadly force in self-defense. New trial ordered.

Subsec. (b):

Cited. 186 C. 654. Cited. 229 C. 916, see also 35 CA 520. Defendant's knowledge of ability to retreat is measured according to the subjective standard of defendant's actual knowledge. Defendant accused of felony murder may not rely on a claim of self-defense. 254 C. 184. Subdiv. (1) allows state to rebut self-defense claim by showing that defendant could have retreated safely before using deadly force; it does not follow that defendant is statutorily or constitutionally entitled to use evidence of retreat after using deadly force to bolster self-defense claim without permitting jury to consider other possible reasons for the flight. 279 C. 414.

Subdiv. (1) cited. 31 CA 385. Cited. 34 CA 610. Cited. 40 CA 624. Cited. 43 CA 488. Cited. 44 CA 62. Retreat exception applies to a dwelling, not to a superior right to being outside the dwelling. 47 CA 91.

Subsec. (c):

Subdiv. (2) cited. 221 C. 58. Subdiv. (3) cited. Id. Subdiv. (2): Person who first uses physical force is not necessarily the initial aggressor under this section. Judgment of appellate court in State v. Jimenez, 30 CA 406, reversed. 228 C. 335. There was no occasion for trial court to instruct the jury on initial aggressor doctrine under Subdiv. (2) when the state did not claim that defendant was the initial aggressor. 246 C. 268.

Subdiv. (1): Provocation element carries with it requirement that actor act with specific intent to elicit use of physical force by another. 19 CA 609. Subdiv. (2) cited. Id. Cited. 22 CA 521. Subdiv. (2) cited. 35 CA 699. Jury could have reasonably concluded from evidence presented that defendant was not justified in using deadly force against the victim because he was the initial aggressor. 75 CA 80.

I don't have time to fully strip out the unnecessary bits, but I did some. You'll have to fend for yourself for the rest. Again, see link for full text w/ citings (and case numbers?).

I'm making a graded list of states based on CCW laws and NFA regulations. If CT case history is actually more like PA's, then it's going to be somewhat high on the list. Especially since they're effectively "shall-issue," though not officially so, and the CCW price has gone down, I think (didn't it used to be $115 or something? It's $35, now).

The first time you apply it's still like a $100 fee total. Three easy payments of $30-$35 for the various levels of processing that your application must go through. After that I think it's only $35 to renew. I don't remember the exact amounts as I got mine over a year ago. IMHO, CT is a lot better than it's immediate neighbors.

 

[GunTech]

Worth reading by the way.

Brown vs United States, 1921

The United States Supreme Court has ruled that there is no duty to retreat.

http://supreme.justia.com/us/256/335/case.html

 

[The Cavalry]

New Jersey is a "Duty To Squeal Like a Little Girl" state as regards to personal defense when faced with violence.

This is not so Cavalry. This is all from the Attorney General of NJ Use of Force Training manual.

"a private citizen is not justified in using deadly force if the person knows that he or she can avoid the necessity of using deadly force with complete safety by retreating. The duty to retreat only applies in situations involving deadly force, not to situations involving non-deadly force."

There are different rules for the home.

...

So in NJ you have to retreat (if you can do so in complete safety) in public but are not required to do so at home.

Given that we peasants can't get carry permits in NJ, anything outside the home pretty much rules out force of any type except hand-to-hand combat. At least not with a firearm, slingshot, pepper sprayer over 'x' size, taser, or anything else on the state's no-no list.

The only thing I resent more than NJ's laws is people trying to make them sound not-quite-so-bad.

Sorry Griz22, but it's a sad state of affairs with respect to defending myself or my family outside the home. Countdown to my exodus started last month, can't wait.

I'm ripping the rear view mirrors off my car, just so I won't have to look at New Jersey any longer than necessary.

 

[revjen45]

I felt the same way upon leaving the DPRK (aka West New Jersey).

 

[Elm Creek Smith]

In Oklahoma the legislature passed what the local TV stations and newspapers referred to as the "Make My Day Law." I guess we don't have a duty to retreat.

ECS

 

[PhrankKastle]

In NH there is no retreat requirement in your home, but in public you are required to retreat if you can do so with complete safety.

 

[Nil]

Does anyone know the law in Minnesota? I'm moving there in 2-3 days and I'd like to know the specifics about the law.

 

[Richmond]

Minnesota

Under Minnesota law, a person may use “reasonable force” against another “in resisting . . . an offense against the person.” Minn. Stat. § 609.06. A defendant is justified in “resisting” an offense only if the defendant
(1) has an actual and
(2) reasonable belief that serious bodily harm is imminent,
(3) does not provoke the incident, and
(4) has no reasonable opportunity to retreat.

See State v. Basting, 572 N.W.2d 281, 285 (Minn. 1997). The amount of force that is “reasonable” will depend on the circumstances and presents a question of fact. State v. Glowacki, 630 N.W.2d 392, 402-03 (Minn. 2001).

Minnesota's statutes also provide for “defense of dwelling” and states in part:
[R]easonable force may be used upon or toward the person of another without the other's consent when the following circumstances exist or the actor reasonably believes them to exist:

(3) when used by any person in resisting or aiding another to resist an offense against the person; or
(4) when used by any person in lawful possession of real or personal property, or by another assisting the person in lawful possession, in resisting a trespass upon or other unlawful interference with such property.

Minn. Stat. § 609.06, subd. 1(3)-(4).

The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor's place of abode.

Minn. Stat. § 609.065.

In 1999, State v. Carothers addressed the duty to retreat in the home.

http://www.lawlibrary.state.mn.us/archive/supct/9906/c89886.htm

Having concluded that the imposition of a duty to retreat would be improper in defense of dwelling situations, we see no sound reason to impose a duty to retreat when those same circumstances are characterized as self-defense within the home. Because the issue of the duty to retreat attaching to self-defense occurring within the home is not directly before us, it is neither necessary nor appropriate to attempt to fully explicate when a duty to retreat might or might not apply to self-defense within the home. It is sufficient to note that where the circumstances of a case support a defense of dwelling claim based on the prevention of a felony in the home consistent with Pendleton, the duty to retreat does not apply whether the defense is labeled defense of dwelling or self-defense. Courts and counsel should look to circumstances alleged to give rise to the defense, rather than the labels attached.
We emphasize that a person claiming defense of dwelling is still subject to strictures insuring the reasonableness of his or her behavior. Defense of dwelling and self-defense within the dwelling serve a defensive and not offensive purpose, and do not confer a license to kill or to inflict great bodily harm merely because the offense occurs within the home. See Gainer, 391 A.2d at 862. It may be more reasonable for a person to advance towards or retreat from a danger within his or her home in different circumstances, and that decision should be left to the jury. When faced with a defense of dwelling claim, the jury must determine (1) whether the killing was done to prevent the commission of a felony in the dwelling, (2) whether the defendant's judgment as to the gravity of the situation was reasonable under the circumstances, and (3) whether the defendant's election to defend his or her dwelling was such as a reasonable person would have made in light of the danger to be apprehended. See Pendleton, 567 N.W.2d at 270 (relying on State v. Boyce, 284 Minn. 242, 253, 170 N.W.2d 104, 112 (1969)). See also Gainer, 391 A.2d at 862-63 (no duty to retreat when using deadly force in defense of dwelling or self-defense in the home so long as actions meet other requirements of defense of dwelling or self-defense).

So, subject to a “reasonableness” requirement, there is no duty to retreat in the home.

In tort law, as well as in areas of criminal law such as self-defense, the "reasonable person" is a hypothetical individual who is intended to represent a sort of "average" citizen. The ability of this hypothetical individual is consulted in the process of making legal decisions. The question, "How would a reasonable person act under the same or similar circumstances" performs a critical role in legal reasoning”?

State v Glowacki later addressed the co-occupant issue, holding “There is no duty to retreat from one’s own home when acting in self-defense in the home regardless of whether the aggressor is a co-resident, although any use of force must be reasonable under the specific circumstances of each case.”

http://www.lawlibrary.state.mn.us/archive/supct/0107/c8991507.htm


Typical instructions to the jury look like this:

CRIMJIG 7.05: "Self Defense--Causing Death."
No crime is committed when a person takes the life of another; even intentionally if Defendant's actions -- action is taken in resisting or preventing an offense which Defendant reasonably believes exposes the Defendant to death or great bodily harm.
In order for a killing to be justified for this reason three conditions must be met. First, the killing must have been done in the belief that it was necessary to avert death or great bodily harm. Second, the judgment of the Defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances. Third, Defendant's election to defend must have been such as a reasonable person would have made in light of the danger perceived and the existence of any alternative way of avoiding the peril. All three conditions must be met, but the State has the burden of proving beyond a reasonable doubt that the Defendant did not act in self-defense.

CRIMJIG 7.06 SELF DEFENSE--DEATH NOT THE RESULT

Defendant is not guilty of a crime, if defendant used reasonable force against ______ to resist (or to aid ______ in resisting) an offense against the person, and such an offense was being committed or defendant reasonably believed that it was.
It is lawful for a person who is being assaulted and who has reasonable grounds to believe that bodily injury is about to be inflicted upon the person, to defend from such attack, and in doing so the person may use all force and means which the person believes to be reasonably necessary and which would appear to a reasonable person, in similar circumstances to be necessary to prevent the injury which appears to be imminent.
The kind and degree of force which a person may lawfully use in self-defense is limited by what a reasonable person in the same situation would believe to be necessary. Any use of force beyond that is regarded by the law as excessive.

(The rule of self-defense does not authorize one to seek revenge or to take into his own hands the punishment of an offender.)

To edit the type of jury instructions given above, I argue specific wording and often file complex arguments of authority. The end result will be a tailored jury instruction for a particular case.

Note: This post was written while doing that most Minnesotan of all things - watching the Packers beat the Vikings!

 

[Nil]

I appreciate the information, Richmond. But as a born-and-raised Wisconsinite, I feel I must taunt you for today's game.

HA!!! It was awfully nice of your defense to allow Favre to get to 422 TDs.

 

[Uenoparker]

Can't vouch for the accuracy or completeness, but you might check out the list on Wikipedia -- http://en.wikipedia.org/wiki/Castle_Doctrine.

 

[Green Lantern]

INAL, but in NC you must retreat in public. Your home is a different story.

 

[AlabamaFamilyMan]

Alabama

In Alabama the Castle Doctrine bill was signed into law in April 06. It specifically states that there is no duty to retreat from any place you are legally allowed to be (if'n you don't start the ruckus)

 

[CNYCacher]

In NY you have no duty to retreat inside your home, but you do have a duty to retreat in public if you can do so.

Ironically, for certain crimes the use of deadly physical force is legal "to prevent the immediate egress" of the perpetrator who just committed the crime.

So, in NY, it is perfectly legal to shoot a rapist fleeing the scene of a rape, while you are running away from the ax murderer that is chasing you. Said ax murderer being the one you can't shoot, because he hasn't already killed you and isn't yet trying to get away from the scene of your murder.

 

[BlackBearME]

Maine

Maine Criminal Code, Title 17 Section 108

2. A person is justified in using deadly force upon another person:


A. When the person reasonably believes it necessary and reasonably believes such other person is:

(1) About to use unlawful, deadly force against the person or a 3rd person; or

(2) Committing or about to commit a kidnapping, robbery or a violation of section 253, subsection 1, paragraph A, against the person or a 3rd person; or
[1989, c. 878, Pt. B, §15 (amd).]

(note - the section 253 is referring to Gross Sexual Assault (we don't have rape here in Maine anymore, apparently)

B. When he reasonably believes:

(1) That such other person has entered or is attempting to enter a dwelling place or has surreptitiously remained within a dwelling place without a license or privilege to do so; and

(2) That deadly force is necessary to prevent the infliction of bodily injury by such other person upon himself or a 3rd person present in the dwelling place;
[1975, c. 740, §34 (rpr).]


C. However, a person is not justified in using deadly force as provided in paragraph A, if:

(1) With the intent to cause physical harm to another, he provokes such other person to use unlawful deadly force against anyone; or

(2) He knows that the person against whom the unlawful deadly force is directed intentionally and unlawfully provoked the use of such force; or

(3) He knows that he or a 3rd person can, with complete safety

(a) retreat from the encounter, except that he or the 3rd person is not required to retreat if he or the 3rd person is in his dwelling place and was not the initial aggressor; or

(b) surrender property to a person asserting a colorable claim of right thereto; or

(c) comply with a demand that he abstain from performing an act which he is not obliged to perform.
[1975, c. 740, §34 (rpr).]

Basically, it's tit for tat - nondeadly force for nondeadly force, deadly for deadly. In your house, though, you can use deadly force against an intruder to prevent serious bodily injury. IANAL, Use at your own risk, YMMV, etc.

 

[GRIZ22]

The only thing I resent more than NJ's laws is people trying to make them sound not-quite-so-bad.

Not so bad as "Duty To Squeal Like a Little Girl". If you want to resent someone from quoting from an authorative source it's your perogative to do so.

You seem to also have edited out my last remark.

There are plenty of things wrong with NJ but use of force requirements are not absurd.




I was responding to the OP's legal question quoting an Attorney General's Office published guide.

ps I can be blamed for posting the most accurate information I had available to the question.

 

[Zoogster]

CA only allows the use of deadly force to prevent certain "forcible and atrocious" felonies.
However it is legal if you feel it is necessary to prevent or stop such a crime. Such crimes usualy involve potential of serious injury or death to the individual or someone else. So in law the right to self defense is not too bad in CA.

However in practice 99% of self defense cases in CA are going to be taken to court where you will sit in jail, have a very high bail (since charge is likely murder) and if unable to make bail be unable to make a living to pay your bills, meaning that after a year + goes by and you finaly win the case (assuming you can afford a competent attorney) you won't have anything to come home to, or your job. You will however be a free man heavily in debt if not homeless. If you cannot afford a competent attorney a DA will usualy let people in clear cut self defense plead to a lesser felony charge with little or no jail time (oh joy.) Otherwise you got a decent chance of it going either direction depending on location and jury.

The few exceptions to this are usualy store clerks using self defense against armed robbers while on security video. They are charged less often than homeowners.
So legal based on the law, and what is actualy done are often two seperate things.

 

[strat81]

Nebraska is a duty to retreat state, except if you are at home or at work.

 

[Wynder]

Delaware has a duty to retreat outside of the home.

§ 464. Justification -- Use of force in self-protection.

<SNIP>

(b) Although the defendant would have been obliged under § 464 of this title to retreat, to surrender the possession of a thing or to comply with a demand before using force in self-protection, there is no obligation to do so before using force for the protection of another person, unless the defendant knows that the defendant can thereby secure the complete safety of the other person

 

[30 cal slob]

RyanM ... sorry for the belated reply.

I guess the little details are important ... sorry, I'm not exactly sure what "complete" safety is.

It may not matter ... you're either safe from grave bodily harm / death or you're not.

 

[zxcvbob]

Rhetorical question: "If you are in your home, where would you you retreat to?"

Since there is no answer to that question, logically there is no duty to retreat when in your home. Legally may be another matter, I dunno cuz IANAL.

 

[cloudedice]

Since there is no answer to that question, logically there is no duty to retreat when in your home. Legally may be another matter, I dunno cuz IANAL.

I believe I heard of a case in NJ, and someone may have mentioned it earlier in the thread, where a woman was being beaten by her drunk husband and retreated to HER bedroom (they were sleeping separately, I think, because of his history of abuse) and grabbed a gun. When he tried to attack her, she shot him.

She was found guilty of (murder/assault/whatever) because apparently if the attacker lives in your house, you have a duty to retreat FROM your house.

 

[gotarheels03]

I'm a bit confused about this...

Although the defendant would have been obliged under § 464 of this title to retreat, to surrender the possession of a thing or to comply with a demand before using force in self-protection, there is no obligation to do so before using force for the protection of another person, unless the defendant knows that the defendant can thereby secure the complete safety of the other person

So you have no duty to retreat if you can secure the complete safety of someone else, but if it's self-protection you have to retreat?:banghead:

Also, is it saying that 464 requires that I not only retreat, but give up my property and do what the bad guy says BEFORE I can use force? How rediculous.

 

[Tom488]

She was found guilty of (murder/assault/whatever) because apparently if the attacker lives in your house, you have a duty to retreat FROM your house.

This part of the law was repealed in '99. Prior to it's repeal, here's how it read (better buckle up - this gets a little hairy):

2C:3-4b Limitations on justifying necessity for use of force
(2) The use of deadly force is not justifiable under this section unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm; nor is it justifiable if:
(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action where he has no duty to take, except that:
(i) the actor is not obliged to retreat from his dwelling, unless he was the initial aggressor or is assailed in his dwelling by another person whose dwelling the actor knows is to be except that the actor who becomes the target of unilateral unprovoked attack by a cohabitant spouse or cohabitant household member with whom the actor has a history of domestic violence is not obliged to retreat in the shared dwelling

The above bold text was removed from the statute - 2C:3-4b(2)(b)(i) now simply states that the actor doesn't have to retreat from his dwelling, unless he started it. The current statute can be viewed here

Follow-up: Sandra Ortiz was ultimately found not guilty in April '03, after previously being convicted in June 2001.