The Duty to Retreat from Standing Your Ground

by A. Jay Adler on March 27, 2012
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When awful incidents like that of the Trayvon Williams killing occur, good outcomes are the attention they draw to existent social conditions, such as the continuing role of race in our relations and the advent of “stand your ground” laws in so many states. A characteristic bad outcome is how the discussion of these conditions is so predetermined by a kind of prejudice – the prejudgment founded in our ideological dispositions. So there are many conservatives who will constitutionally oppose any position that liberals take – now against stand your ground laws – and who will gladly attempt to destroy a black teen’s or a liberal woman’s reputation if doing so is necessary to wage the ongoing political war. For many liberals, it is enough that the NRA and ALEC have been behind the wave of state laws establishing stand your ground principles in place of the “duty to retreat.” Any law they promote simply must be wrong.

Part of the problem is thinking about the issues is in getting past the simplification of the doctrine labels. For many people – I don’t think they need be American, though American it is – there will a natural inclination to think,

Why shouldn’t I be able to stand my ground when I am attacked? I’m being attacked – why would I not be legally allowed to stand up for myself? Why would I have a duty to retreat when attacked? The best defense is often a good offense, and shouldn’t the fair and reasonable principle be – when I am attacked – that whatever best protects me, including standing my ground, is clearly defensible?

It all sounds reasonable to me. But most of us are not lawyers. There are legal intricacies we will not know as well as variations in state law that vary the considerations. Still, if we do not want to be political hacks masquerading as citizens, we need to think and not merely position ourselves. Here are some questions that occur to me to consider in thinking it through.

Where am I standing my ground?

What am I standing my ground against?

What does it mean to refer, as I do above, to “whatever best protects me”?

In relation to Trayvon Martin, in Florida, are there any particular legal conditions that are separable from stand your ground laws in general?

It is very much to the point, too, to ask if these laws, when passed, were responsive to an identifiable problem they were seeking to address or if they were passed in order to gain ideological ground – in order to create the conditions of a different social order, preferred by proponents, than the one that currently existed.

The “Castle Doctrine” provides much traditional support for standing one’s ground when one’s rightful walls, so to speak, have been unlawfully breached.  Even so, standing that ground is not beyond question. As one common example, the West Virginia Code states the condition of whether

the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.

The reasonableness of an individual’s actions is always subject to review, but even under duty to retreat principles, not unreasonably. Oliver Wendell Holmes stated in Brown v. United States that

Rationally, the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing, not a categorical proof of guilt. The law has grown, and even if historical mistakes have contributed to its growth, it has tended in the direction of rules consistent with human nature. Many respectable writers agree that, if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant, he may stand his ground, and that, if he kills him, he has not succeeded the bounds of lawful self-defense. That has been the decision of this Court. Beard v. United States, 158 U. S. 550158 U. S. 559. Detached reflection cannot be demanded in the presence of an uplifted knife.

The existence of firearms refines the consideration of the issue further.

The doctrine of ‘retreat to the wall‘ had its origin before the general introduction of guns. Justice demands that its application have due regard to the present general use and to the type of firearms. It would be good sense for the law to require, in many cases, an attempt to escape from a hand to hand encounter with fists, clubs, and even knives, as a condition or justification for killing in self-defense; while it would be rank folly to so require when experienced men, armed with repeating rifles, face each other in an open space, removed from shelter, with intent to kill or to do great bodily harm. What might be a reasonable chance for escape in the one situation might in the other be certain death. Self-defense has not, by statute nor by judicial opinion, been distorted, by an unreasonable requirement of the duty to retreat, into self-destruction.

What are you standing your ground against? An unprovoked attack?  A more aggressive action in response to your own less aggressive act? A response to your own pursuit of another person?

Are you standing your ground against a firearm? The “uplifted knife” Holmes invokes? A fist?

Here is another elucidating discussion.

The standard for use of deadly force is, predictably, higher. The general criminal law allows for the use of deadly force anytime a faultless victim reasonably believes that unlawful force which will cause death or grievous bodily harm is about to be used on him. Again, Pennsylvania law is generally consistent with this standard.

The faultlessness requirement does not mean that the victim must be pure of heart and without sin. It does mean that the right of self-defense will not be available to one who has substantially encouraged or provoked an attack. The general rule is that words alone are not enough to be considered a provocation under this standard, but there are exceptions. For example, saying ‘I am about to shoot you’ might well constitute sufficient provocation.

One of the circumstances which helps to determine the level of threat encountered by the victim is the nature of the assailant’s weapon (if any). As a general rule, anything which might be used to kill a person, no matter how odd, is considered a deadly weapon. Thus, a chair, a lamp or a screwdriver may all be considered deadly weapons. In some instances, the law will treat a trained fighters hands as a deadly weapon, but in order to trigger the right to self-defense using lethal force against such a person, the victim must, of course, know of the attacker’s special training.

U.S. courts are split with respect to an additional factor in the lawfulness of the use of deadly force in self-defense. A minority of jurisdictions require a victim to retreat to the wall if it is safe to do so, before using deadly force. ‘Retreat to the wall’ is generally construed to mean taking any reasonable and apparent avenue of exit. However, even minority jurisdictions do not require retreat under three circumstances. There is no duty to retreat from one’s own home, if one is being or has been robbed or raped, or if the victim is a police-officer making a lawful arrest. In 1996 the Pennsylvania Superior Court held that “although a person is afforded discretion in determining necessity, level and manner of force to defend one’s self, the right to use force in self defense is a qualified, not an absolute right.” Pennsylvania is a retreat jurisdiction.

Even an initial aggressor may be given the right to self-defense under certain circumstances. If the initial aggressor withdraws from the confrontation, and communicates this withdrawal to the other party, he regains the right to self-defense. Also, if the victim of relatively minor aggression ‘suddenly escalates’ the confrontation to one involving deadly force, without providing adequate space for withdrawal, the initial aggressor may still invoke the right to self-defense.

Properly understood, the duty to retreat does not call for a retreat from one’s own adequate self-defense, but only for withdrawal when possible from further inciting the conditions of conflict.

Is the point of standing one’s ground to provide for oneself the most assured self-defense against harm – whatever best protects – or is it to assert right of refusal to back down, a cock’s pride of place?

Stand your ground laws appear an ideologically-based attempt, absent any identified problem they actually seek to address, to change the social order. Or where are the studies indicating any kind of murder trend traceable to the reluctance of threatened individuals adequately to defend themselves based on fear of violating the duty to retreat?

Duty to retreat laws, perhaps poorly labeled, appear more than adequate to support an individual’s decision under conditions of genuine threat and fear, without easy flight from conflict, to make a lethal self-defense.

To render the Florida law even more an abomination of law and police practice, it differs from most stand your ground laws in these respects.

The “Stand Your Ground” Law introduced two (2) conclusive presumptions that favor a criminal defendant who is making a self-defense claim:

  1. The presumption that the defendant had a reasonable fear that deadly force was necessary; and
  2. The presumption that the intruder intended to commit an unlawful act involving force or violence.

These two presumptions protect the defender from both civil and criminal prosecution for unlawful use of deadly or non-deadly force in self-defense. In addition, the defender/gun owner has no duty to retreat, regardless of where he is attacked, so long as he is in a place where he is lawfully entitled to be when the danger occurs

The first presumption is the reason given for why George Zimmerman was not even arrested. Standing one’s ground in self-defense under this law is not, reasonably, a defense against charges – it is accepted in Florida as a stay-out-of-jail simple claim card. In the absence of eyewitness or other empirical evidence to the contrary, it offers protection against even arrest for perhaps wanton killing, as, the evidence shows, the rate of homicides in Florida justified by stand your ground self-defense has nearly tripled since the law was enacted in 2005.


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