Question about Duty to Retreat

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Resist Evil

Resist Evil

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In a recent conversation, I questioned the source of the duty to retreat requirement in a self-defense situation in America. The other fellow was claiming that the duty to retreat has its roots maybe as far back as Cicero, through Blackstone, over to America. The concept being deeply rooted in western legal thought and common law validates its legitimacy in American jurisprudence.

My question is--does anyone here have knowledge of, or is able to point me in the direction for, some simple research of where in America did the duty first appear as law and who was responsible for it? The concept seems contrary to my beliefs in personal liberty and personal sovereignty that I should be forced to run away by law rather than being left free to choose to do so or not as the situation and my judgment may require.

I can't imagine who in their right mind would require a free man to run away from a street tyrant by law for fear of criminal charges by a governmental one. I never gave the subject serious thought, but with all the hoorah in Florida these days, I feel compelled to seek some information.

Please keep in mind that I am simply asking for factual information to be able to form my own opinion on the subject (and to see if that guy is right). I hope the answers to this thread, if any, will not foment a discussion on Stand Your Ground laws, though this thread might seem to invite it. I think SYG and Duty to Retreat are two sides of the same coin and I would like to focus only on gathering a few historical facts regarding the establishment of the Duty side of it and by whom.

I am not a lawyer nor am I a scholar so any help for this creaking slack-jawed, mouth-breathing construction worker would be appreciated.
 
I think you are about to see that happen in Florida.

I don't know about case history but I agree that no law should require you to retreat from a threat to your freedom or safety.

But I do believe that "Stand Your Ground" is a hold-over from the "Greatest Generation" and those standards are about to be abandoned by the "Latest Generation" .

A "duty to retreat" dating back to the Roman Empire does not give me a warm-fuzzy feeling, look what happened to the Romans. :(
 
The writings of Dave Kopel have been a big help to me.

Here, he discusses several SCOTUS cases decided between 1893 and 1896 that were pivotal, and actually moved away from the DTR. He summarizes the result of Beard v. United States as "There is No Duty to Retreat Before Using Deadly Force." That summary, however, should be expanded to specify "when on your own propery," as the summary of Allen v. United States reads in part, "There is a Duty to Retreat on Public Property."

His book The Samurai, the Mountie, and the Cowboy discusses, if memory serves, the underpinning of English common law (rooted in duty to the king) that required "retreat to the wall" (also discussed in Brown's No Duty to Retreat) before exercising deadly force.
 
The "duty to retreat" comes out of common law, which generally holds that one should take a human life as a last resort if there is no other reasonable alternative. Most folks would probably go along with that, though extreme pacifists would argue that no one should ever harm anyone else, even it means dying themselves.

But, the SYG laws, like most other laws, grew out of the actions of overzealous, corrupt or agenda-driven prosecutors who carried the "duty to retreat" to absurd extemes, contending, for example, that a woman with a baby, in her own home and with no exit except a 12" casement window a foot above her head, had a "duty to retreat". The prosecutor actually brought a charge of first degree murder and the woman was convicted of second degree murder. Fortunately, the appellate court was ruled by common sense and ended the farce.

<..Irrelevancy deleted..>

Jim
 
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Loosedhorse's first link to something Dave Kopel wrote regarding Supreme Court decisions between 1893-96 in self-defense cases is really eye-opening!
 
Posted by Resist Evil: My question is--does anyone here have knowledge of, or is able to point me in the direction for, some simple research of where in America did the duty first appear as law and who was responsible for it?
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The laws in every state but one, and of all of the US Territories, have their origins in the English Common Law. The common law was a body of law drawn up by judges. The duty to retreat was inherent in the common law; the concept was that if one person killed another it was (as it is in our law today) a very serious crime unless it was justifiable or excusable. A homicide that resulted from the unavoidable use of deadly force in self defense was classified as excusable.

Consider what the judges had to decide: there is a dead man, and a man who killed him. Then, as now, one can bet one's bottom coin of the realm that, if the killer cannot deny having done the deed, he will claim self defense. So, was it self defense, a fight that went too far, the result of armed robbery, or just plain cold-blooded murder? Evidence of having retreated "to the wall" was a very persuasive indication that the killer had done everything possible to avoid mayhem.

Of course, the duty to retreat did not extend into one's home ("castle") in those days.

Also, the common law evolved in an era of contact weapons. Yes, there was the long bow, but very few people were skilled enough or fit enough to use one.

Do not look for a duty to retreat in state codes (though it was once written into the law in Texas); it is most often a matter of common law, or "case law".

Also, do not assume that because a state law does not contain a stand-your-ground provision, the courts have not eliminated the duty to retreat. Know the law in the jurisdictions in which you live and travel.

Two other things:

  1. The duty to retreat requires retreat only if retreat is safely possible.
  2. Even if the duty to retreat has been eliminated in one's jurisdiction, retreat may be a very prudent thing to do, because (a) one still has to produce evidence of necessity, and (b) one does not want to face the aftermath of having used deadly force on someone else if it it is at all possible to avoid it.
 
A "duty to retreat" dating back to the Roman Empire does not give me a warm-fuzzy feeling, look what happened to the Romans.
Click to expand...

And welcome to lulzy facts about the Roman legal system: The Patrician's penalty for assault was to pay a fine. They never adjusted this for inflation, so a few centuries later, rich guys could walk down the street and punch everyone they ran across.
 
"Stand your ground" is a subissue of the general issue of self defense. In the state where I practice law (Washington) it's been part of the law for many years: "It is lawful for a person who is in a place where that person has a right to be and who has reasonable grounds for believing that [he][she] is being attacked to stand [his][her] ground and defend against such attack by the use of lawful force. The law does not impose a duty to retreat."

Along with that goes the principle that you can't start a fight and then claim self defense if it gets out of control: "No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense [or][defense of another] and thereupon [kill][use, offer, or attempt to use force upon or toward] another person. Therefore, if you find beyond a reasonable doubt that the defendant was the aggressor, and that defendant's acts and conduct provoked or commenced the fight, then self-defense [or][defense of another] is not available as a defense."

In other words, you have to show that you didn't start the problem in the first place before you even get to the issue of whether you should have fled after the confrontation started. In my experience a jury will put far more weight on that first issue: if you were minding your own business and got attacked by some a-hole, they will sympathize with you, but if it was two idiots hostile, mouthing off and fighting they won't have a lot of sympathy for either. The "No duty to retreat" issue tends to pop up in cases where the reaction was disproportionate to the initial assault, such as shooting someone for punching you. Not that a reaction like that can't be justified but it will take more work.

Now, the common sense: As I often tell clients, no defendant wins a criminal case. Even if it's dismissed or a jury finds you not guilty, you're still out a lot of time, money, and stress that you won't get paid back for (actually a jury in Washington can order the State to pay a defendant's lost time and attorney's fees if it finds self defense, but that's not a sure thing). You will probably need a second mortgage to raise the money that I or any other good criminal defense attorney will charge, up front, to take on a homicide case. I know a lot of public defenders that I would be happy to have defending me, but if you're middle class the judge may not assign you one. How much of your and your family's future are you willing to risk for the principle that you shouldn't have to retreat? Bear in mind that no two witnesses remember an incident the same way, so no matter how clearly you remember the whole thing some witness will probably testify to having seen something completely different. If there's any way to avoid using force take it.
Then there's this:

Date: 07-17-2008

Case Style: Family and Estate of Scott J. Keith v. Donald Skewis


Description: The Family and Estate of Scott J. Keith sued Donald Skewis on a wrongful death theory claiming that Skewis wrongfully and without just cause shot and killed Keith on July 1, 2004 in a feud over a public easement between their properties. Investigators found Keith was carrying an aluminum baseball bat and a knife when he was shot as he approached Skewis' property.

Defendant claimed that he shot Keith in self-defense.

Outcome: Plaintiffs' verdict for $4.4 million.

The prosecutor refused to file criminal charges because he believed that the guy shot in self defense, or at least couldn't prove that he didn't. Then the dead guy's family sued and the shooter ended up owing them a ton of money, and probably losing most of everything he owned.

Even if force is unavoidable, I want the witnesses to say "The defendant was backing away and yelling at the other guy to leave him alone until his back was to the wall and then he shot" instead of "They were nose to nose yelling at each other and then he pulled out a gun and shot."
 
I had a interesting experience which has a direct interest in the Florida case.

I had a client that was on parole go into a biker type bar (violation of parole condition #1, no drugs or alcohol) carrying a concealed gun (violation #2, no possession of weapons and felon in possession of a firearm) and started a fight (violation #3, no assaultive behavior). Client was outnumbered and ran from the bar on foot with the bikers chasing him. After running a short distance he fell and the bikers started to beat him up so he pulled his illegal roscoe shooting and killing one of his attackers.

Client, felon, was never charged with killing the biker or for being a felon in possession of a firearm. Frankly my co-workers and I could never figure out the lack of charges when the client started the whole thing.
 
From the opening post, THIS is the subject question:

"...does anyone here have knowledge of, or is able to point me in the direction for, some simple research of where in America did the duty first appear as law and who was responsible for it?"

SYG and who started what are irrelevant to the history of DTR.

That DTR was repugnant and led to SYG is irrelevant.
 
Yep no way you can win or be in right and not fork out money or not waste time...SAD. DTR and SYG and CASTLE laws...All are great and sound great but you are never guaranteed a pass or a win :( Maybe the USCCA has good insurance for that, or prepaid legal. Until the right laws are upheld and others are erased, it is way to grey and not enough black and white. I feel the laws for self defense should be so simply explained that you would know your an idiot, before you acted like a punk, crook and got your self shot? To many stupid laws and corruption in the system to make this easy! Shoot to defend your self, call 911 to report shooting, don't talk to any cops or 911 operator, Ask for lawyer as soon as cops show up....anything you say can and WILL be used against you in a court of law. The cops are not there to help you at all. They are just there to report and justify revenue collection. Other wise they would have been there pre-crime to shoot the idiot for you....protecting and serving. Shoot and shut up! Go to flexyourrights.com or other legal sites and listen well. Talking only ruins your case. Only say "I want to talk to my lawyer." Then no more talking. Period..
 
Description: The Family and Estate of Scott J. Keith sued Donald Skewis on a wrongful death theory claiming that Skewis wrongfully and without just cause shot and killed Keith on July 1, 2004 in a feud over a public easement between their properties. Investigators found Keith was carrying an aluminum baseball bat and a knife when he was shot as he approached Skewis' property.

Defendant claimed that he shot Keith in self-defense.

Outcome: Plaintiffs' verdict for $4.4 million.

The prosecutor refused to file criminal charges because he believed that the guy shot in self defense, or at least couldn't prove that he didn't. Then the dead guy's family sued and the shooter ended up owing them a ton of money, and probably losing most of everything he owned.

Even if force is unavoidable, I want the witnesses to say "The defendant was backing away and yelling at the other guy to leave him alone until his back was to the wall and then he shot" instead of "They were nose to nose yelling at each other and then he pulled out a gun and shot."
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And the risk of a civil suit that can bankrupt you is dependent on State Law. Just like the criminal side, every state has different laws. In Delaware if you are no billed or acquited of criminal charges the family cannot sue you.
 
Every state is different, of course.

One other point: At least here, a standard homeowner's insurance policy won't cover a civil lawsuit over a self defense shooting. Mr. Skewis' insurance company basically told him "that's your problem, good luck" and he had to pay his defense lawyers out of his own pocket. One more expense you don't get back even if you win.
 
You guys really should read what was on that link to David Kopel's article that Loosedhorse posted in #3. It really was enlightening to this conversation.
 
If you can retreat safely, without putting yourself at risk, why wouldn't you?

Like community service volunteerism on your school application, it always looks good. It says you tried to make an attempt to defuse the situation and the other guy didn't take the opportunity to do the same.

Like they say about being a salesman, you don't sell the product, you sell yourself. The ability to tell an interviewing LEO or, more importantly, a jury that you're a decent reasonable person, who doesn't want to have to hurt someone else unless they absolutely have been given no other option, is priceless.

You want them to identify and empathize with you, not the scumbag laying on a slab.
 
If you can retreat safely, without putting yourself at risk, why wouldn't you?
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I would. But that's not really the question.

It is, "What is worse: a law that says you must always retreat before using lethal force if you can retreat in complete safety, or a law that says you may always use lethal force when threatened with the same, even if you can retreat in complete safety?" ("You" would apply to you and yours--there is no requirement under DTR to leave loved ones behind.)

I think I can point to bad effects from both laws.
You guys really should read what was on that link to David Kopel's article
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Glad it's helpful. He's a sharp guy IMHO.
 
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The first certainly makes one the perpetual victim.

I don't think you enforce the second. One can always choose to do nothing. I don't think you can force someone to kill someone else. They can always chose to die themselves rather than do so.

Loosedhorse wrote:

I would. But that's not really the question.

It is, "What is worse: a law that says you must always retreat before using lethal force if you can retreat in complete safety, or a law that says you may always use lethal force when threatened with the same, even if you can retreat in complete safety?" ("You" would apply to you and yours--there is no requirement under DTR to leave loved ones behind.)

I think I can point to bad effects from both laws.
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I'm proud to say one of my favorite professors from my long ago college years was Richard Maxwell Brown, author of a number of papers on this topic and the book:

http://www.amazon.com/No-Duty-Retreat-Violence-American/dp/0806126183

His contribution was twenty years ahead of its time, and I remember most historians back then didn't really understand the significance of the issue.

It's fair to say there's no perfect law when it comes to these matters, and injustice is possible under any approach. Wisdom dictates that one get out of Dodge if possible, unless one is protecting something of exceptional importance. I'd say home and family qualifies. I would not say a car or "honor" do. But others disagree.
 
Don't confuse "retreating" with headlong flight.

In Ohio, when not in car or home, I have a duty to retreat before using deadly force IF I can do so IN PERFECT SAFETY. That's a pretty low bar.

  1. I don't need to incur one IOTA of additional danger as perceived by a reasonable person.
  2. I don't need to turn tail and run.
I just need to ATTEMPT to LEAVE before using deadly force.

If my assailant thwarts that attempt, sucks to be him.

The law holds that he was wrong to attack me in the first place, and even MORE wrong for attempting to prevent me from departing. If he does, then he's put HIMSELF in danger and carries sole responsibility.
 
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