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{{Short description|Legal requirement}}
{{Criminal defenses}}{{Primarysources|article|date=July 2013}}
{{Redirect|No retreat|the film|No Retreat, No Surrender}}
In the [[criminal law]], the '''duty to retreat''' is a specific component which sometimes appears in the defense of [[self-defense (theory)|self-defense]], and which must be addressed if the [[defendant]] is to prove that his or her conduct was [[excuse|justified]]. In those [[criminal jurisdiction|jurisdictions]] where the requirement exists, the [[Legal burden of proof|burden of proof]] is on the defense to show that the defendant was acting reasonably. This is often taken to mean that the defendant had first avoided conflict and secondly, had taken reasonable steps to retreat and so demonstrated an intention not to fight before eventually [[use of force|using force]].
{{Primary sources|article|date=January 2022}}
[[File:Stand-your-ground law by US jurisdiction.svg|thumb|275x275px|Stand your ground law and duty to retreat by US jurisdiction
{{legend|#008000|Stand-your-ground by statute}}
{{legend|#00cd00|Stand-your-ground by judicial decision or jury instruction}}
{{legend|#0000A0|Duty to retreat except in one's home}}
{{legend|#ADD8E6|Duty to retreat except in one's home or workplace}}
{{legend|#00FFFF|Duty to retreat except in one's home or vehicle or workplace}}
{{legend|#FFFF00|Middle-ground approach (DC, WI)}}
{{legend|#000000|No settled rule (AS, VI)}}
]]
{{Criminal defenses}}
In [[law]], the '''duty to retreat''', or '''requirement of safe retreat''',<ref name=CL>''Criminal Law - Cases and Materials'', 7th ed. 2012, [[Wolters Kluwer Law & Business]]; [[John Kaplan (law professor)|John Kaplan]], [[Robert Weisberg]], [[Guyora Binder]], {{ISBN|978-1-4548-0698-1}}, [https://law.stanford.edu/publications/criminal-law-cases-and-materials-7th-edition/]</ref>{{rp|550}} is a legal requirement in some jurisdictions that a threatened person cannot harm another in [[self-defense]] (especially lethal force) when it is possible instead to retreat to a place of safety.<ref name=CL />{{rp|549–554}} This requirement contrasts with the right in some other jurisdictions to ''[[stand one's ground]]'', meaning being allowed to defend one's self instead of retreating.


It is a specific component which sometimes appears in the criminal defense of self-defense, and which must be addressed if criminal defendants are to prove that their conduct was [[excuse|justified]]. Depending on the state the criminal defendants have to prove a minimal time period of safe retreat.
==U.S. law==
Some U.S. jurisdictions require that a person retreat from an attack, and allow the use of deadly force in self-defense only when retreat is not possible or when retreat poses a danger to the person under attack. The duty to retreat is not universal, however. For example, police officers are not required to retreat when acting in the line of duty. Similarly, some courts have found no duty to retreat exists when a victim is assaulted in a place where the victim has a right to be, such as within one's own home.<ref>''State v. Allery'', 101 Wash.2d 591, 682 P.2d 312 (1984)</ref> The [[Model Penal Code]]<ref>§ 3.04(2)(b)(ii)</ref> suggests statutory language that also recognizes an exception to the usual duty to retreat when the victim of the attack is in his or her own dwelling or place of work. It is common to exempt a person's home or car from the duty to retreat, known as the [[castle doctrine]].


==United States law==
Many states employ [[stand your ground law]]s that do not require an individual to retreat and allow one to match force for force, deadly force for deadly force. The [[Washington State Supreme Court]], for example, has ruled "''that there is no duty to retreat when a person is assaulted in a place where he or she has a right to be.''"<ref>137 Wn.2d 533 State of Washington v. Studd; Decided 1999/04/01.</ref><ref>150 Wn.2d 489 ''State of Washington v. Reynaldo Redmond''; Decided 2003/12/06.</ref>

Most U.S. jurisdictions have a [[stand-your-ground law]]<ref>{{cite web|url=http://criminal.findlaw.com/criminal-law-basics/states-that-have-stand-your-ground-laws.html|title=States That Have Stand Your Ground Laws - FindLaw|publisher=|accessdate=14 August 2018}}</ref> or apply what is known as the [[castle doctrine]], whereby a threatened person need not retreat within his or her own dwelling or place of work. Sometimes this has been the result of court rulings that one need not retreat in a place where one has a special right to be.<ref>''State v. Allery'', 101 Wash. 2d 591, [https://law.justia.com/cases/washington/supreme-court/1984/49674-9-1.html 682 P.2d 312] (1984).</ref> In other states, this has been accomplished by statute, such as that suggested by the [[Model Penal Code]].<ref>§ 3.04(2)(b)(ii)</ref>

In ''[[Erwin v. State]]'' (1876), the [[Supreme Court of Ohio]] wrote that a "true man", one without fault, would not retreat.<ref name=NDR>No Duty to Retreat:Violence and Values in American History and Society 4030 (1991)</ref> In ''[[Runyan v. State]]'' (1877), the Indiana court rejected a duty to retreat, saying,<ref name="CL"/>{{rp|551–2}}<ref name=NDR/> "the tendency of the American mind seems to be very strongly against" a duty to retreat.<ref name=NDR/> The court went further in saying that no statutory law could require a duty to retreat, because the right to stand one's ground is "founded on the [[Natural law|law of nature]]; and is not, nor can be, superseded by any law of society."


==English law==
==English law==
In [[English law]] the focus of the test is whether the defendant is acting '''reasonably''' in the particular situation. There is no specific requirement that a person must retreat in anticipation of an attack. Although some withdrawal would be useful evidence to prove that the defendant did not want to fight, not every defendant is able to escape. In ''R v Bird'' (1985) 1 WLR 816 the defendant was physically attacked, and reacted instinctively and immediately without having the opportunity to retreat. Had there been a delay in the response, the reaction might have appeared more revenge than self-defense.{{citation needed|date=April 2012}}
In [[English law]] the focus of the test is whether the defendant is acting reasonably in the particular situation. There is no specific requirement that a person must retreat in anticipation of an attack. Although some withdrawal would be useful evidence to prove that the defendant did not want to fight, not every defendant is able to escape. In ''R v Bird'' the defendant was physically attacked, and reacted instinctively and immediately without having the opportunity to retreat. Had there been a delay in the response, the reaction might have appeared more revenge than self-defense.<ref>''R v Bird'' (1985) 1 WLR 816</ref>


===Carrying weapons===
===Carrying weapons===
As to carrying weapons in anticipation of an attack, ''Evans v Hughes'' (1972) 3 A ER 412 held that for a defendant to justify his possession of a metal bar on a public highway, he had to show that there was an imminent particular threat affecting the particular circumstances in which the weapon was carried. Similarly, in ''Taylor v Mucklow'' (1973) CLR 750 a building owner was held to be using an unreasonable degree of force in carrying a loaded airgun against a builder who was demolishing a new extension because his bills were unpaid. More dramatically, in ''AG's Reference (No 2 of 1983)'' (1984) 1 AER 988 Lane CJ. held that a defendant who manufactured ten petrol bombs to defend his shop during the [[1981 Toxteth riots|Toxteth riots]] could set up the defense of showing that he possessed an explosive substance "for a lawful purpose" if he could establish that he was acting in self-defense to protect himself or his family or property against an imminent and apprehended attack by means which he believed to be no more than reasonably necessary to meet the attack.
As to carrying weapons in anticipation of an attack, ''Evans v Hughes'' held that for a defendant to justify his possession of a metal bar on a public highway, he had to show that there was an imminent particular threat affecting the particular circumstances in which the weapon was carried.<ref>''Evans v Hughes'' (1972) 3 A ER 412</ref> Similarly, in ''Taylor v Mucklow'' a building owner was held to be using an unreasonable degree of force in carrying a loaded airgun against a builder who was demolishing a new extension because his bills were unpaid.<ref>''Taylor v Mucklow'' (1973) CLR 750</ref> More dramatically, in ''AG's Reference (No 2 of 1983)'' [[Geoffrey Lane, Baron Lane|Lord Lane]] held that a defendant who manufactured ten petrol bombs to defend his shop during the [[1981 Toxteth riots|Toxteth riots]] could set up the defense of showing that he possessed an explosive substance "for a lawful purpose" if he could establish that he was acting in self-defense to protect himself or his family or property against an imminent and apprehended attack by means which he believed to be no more than reasonably necessary to meet the attack.<ref>''Attorney General's Reference (No 2 of 1983)'' (1984) 1 AER 988</ref>


==See also==
==See also==
*[[Castle Doctrine in the United States]]
*[[Castle_doctrine#State-by-state_positions_in_the_United_States|Castle doctrine in the United States]]
*[[Stand-your-ground law]]
*[[Stand-your-ground law]]
*[[Trespasser]]
*[[Trespasser]]


==References==
===Related sayings===
*[[wikt:go to the wall|go to the wall]]
*[[wikt:have one's back to the wall|have one's back to the wall]]

===References===
{{reflist}}
{{reflist}}


==Further reading==
==Further reading==
*{{cite journal |first1=Melissa |last1=Wheatcroft |month=Winter |year=1999 |title=Duty to Retreat for Cohabitants – In New Jersey a Battered Spouse's Home Is Not Her Castle |journal=Rutgers Law Journal |volume=30 |pages=539}}
*{{cite journal |first1=Melissa |last1=Wheatcroft |date=Winter 1999 |title=Duty to Retreat for Cohabitants – In New Jersey a Battered Spouse's Home Is Not Her Castle |journal=Rutgers Law Journal |volume=30 |pages=539}}
*{{cite journal |first1=Joseph H. |last1=Beale |month=June |year=1903 |title=Retreat from a Murderous Assault |journal=Harvard Law Review |volume=16 |issue=8 |pages=567–82 |jstor=1323119 |doi=10.2307/1323119}}
*{{cite journal |first1=Joseph H. |last1=Beale |date=June 1903 |title=Retreat from a Murderous Assault |journal=Harvard Law Review |volume=16 |issue=8 |pages=567–82 |jstor=1323119 |doi=10.2307/1323119}}
*{{cite journal |doi=10.1017/S0008197300086128 |title=Self-Defence and the Right to Life |year=2009 |last1=Ashworth |first1=A. J. |journal=The Cambridge Law Journal |volume=34 |issue=2 |pages=282}}
*{{cite journal |doi=10.1017/S0008197300086128 |title=Self-Defence and the Right to Life |year=2009 |last1=Ashworth |first1=A. J. |journal=The Cambridge Law Journal |volume=34 |issue=2 |pages=282–307|s2cid=146561102 }}
*{{cite journal |first1=Garrett |last1=Epps |month=Winter |year=1992 |title=Any Which Way but Loose: Interpretive Strategies and Attitudes Toward Violence in the Evolution of the Anglo-American 'Retreat Rule' |journal=Law and Contemporary Problems |volume=55 |issue=1 |pages=303–31 |url=http://scholarship.law.duke.edu/lcp/vol55/iss1/16 |jstor=1191769 |doi=10.2307/1191769}}
*{{cite journal |first1=Garrett |last1=Epps |date=Winter 1992 |title=Any Which Way but Loose: Interpretive Strategies and Attitudes Toward Violence in the Evolution of the Anglo-American 'Retreat Rule' |journal=Law and Contemporary Problems |volume=55 |issue=1 |pages=303–31 |url=http://scholarship.law.duke.edu/lcp/vol55/iss1/16 |jstor=1191769 |doi=10.2307/1191769}}
*{{cite journal |first1=Richard Maxwell |last1=Brown |year=1979 |title=Southern Violence — Regional Problem or National Nemesis?: Legal Attitudes Toward Southern Homicide in Historical Perspective |journal=Vanderbilt Law Review |volume=32 |issue=1 |pages=225–50}}
*{{cite journal |first1=Richard Maxwell |last1=Brown |year=1979 |title=Southern Violence — Regional Problem or National Nemesis?: Legal Attitudes Toward Southern Homicide in Historical Perspective |journal=Vanderbilt Law Review |volume=32 |issue=1 |pages=225–50}}
*Brown, Richard Maxwell (1991). ''No Duty to Retreat: Violence and Values in American History and Society''. (New York: Oxford University Press).
*{{cite journal |last1=Ross |first1=Luevonda P. |date=Fall 2007 |title=Transmogrification of Self-Defense by National Rifle Association-Inspired Statutes: From the Doctrine of Retreat to the Right to Stand Your Ground |journal=Southern University Law Review |volume=35 |pages=1}}
*Suk, Jeannie. (2009). ''At Home in the Law: How the Domestic Violence Revolution is Transforming Privacy''. (New Haven: Yale University Press).


[[Category:Criminal defenses]]
[[Category:Criminal defenses]]

Latest revision as of 08:15, 14 January 2024

Stand your ground law and duty to retreat by US jurisdiction
  Stand-your-ground by statute
  Stand-your-ground by judicial decision or jury instruction
  Duty to retreat except in one's home
  Duty to retreat except in one's home or workplace
  Duty to retreat except in one's home or vehicle or workplace
  Middle-ground approach (DC, WI)
  No settled rule (AS, VI)

In law, the duty to retreat, or requirement of safe retreat,[1]: 550  is a legal requirement in some jurisdictions that a threatened person cannot harm another in self-defense (especially lethal force) when it is possible instead to retreat to a place of safety.[1]: 549–554  This requirement contrasts with the right in some other jurisdictions to stand one's ground, meaning being allowed to defend one's self instead of retreating.

It is a specific component which sometimes appears in the criminal defense of self-defense, and which must be addressed if criminal defendants are to prove that their conduct was justified. Depending on the state the criminal defendants have to prove a minimal time period of safe retreat.

United States law

[edit]

Most U.S. jurisdictions have a stand-your-ground law[2] or apply what is known as the castle doctrine, whereby a threatened person need not retreat within his or her own dwelling or place of work. Sometimes this has been the result of court rulings that one need not retreat in a place where one has a special right to be.[3] In other states, this has been accomplished by statute, such as that suggested by the Model Penal Code.[4]

In Erwin v. State (1876), the Supreme Court of Ohio wrote that a "true man", one without fault, would not retreat.[5] In Runyan v. State (1877), the Indiana court rejected a duty to retreat, saying,[1]: 551–2 [5] "the tendency of the American mind seems to be very strongly against" a duty to retreat.[5] The court went further in saying that no statutory law could require a duty to retreat, because the right to stand one's ground is "founded on the law of nature; and is not, nor can be, superseded by any law of society."

English law

[edit]

In English law the focus of the test is whether the defendant is acting reasonably in the particular situation. There is no specific requirement that a person must retreat in anticipation of an attack. Although some withdrawal would be useful evidence to prove that the defendant did not want to fight, not every defendant is able to escape. In R v Bird the defendant was physically attacked, and reacted instinctively and immediately without having the opportunity to retreat. Had there been a delay in the response, the reaction might have appeared more revenge than self-defense.[6]

Carrying weapons

[edit]

As to carrying weapons in anticipation of an attack, Evans v Hughes held that for a defendant to justify his possession of a metal bar on a public highway, he had to show that there was an imminent particular threat affecting the particular circumstances in which the weapon was carried.[7] Similarly, in Taylor v Mucklow a building owner was held to be using an unreasonable degree of force in carrying a loaded airgun against a builder who was demolishing a new extension because his bills were unpaid.[8] More dramatically, in AG's Reference (No 2 of 1983) Lord Lane held that a defendant who manufactured ten petrol bombs to defend his shop during the Toxteth riots could set up the defense of showing that he possessed an explosive substance "for a lawful purpose" if he could establish that he was acting in self-defense to protect himself or his family or property against an imminent and apprehended attack by means which he believed to be no more than reasonably necessary to meet the attack.[9]

See also

[edit]

References

[edit]
  1. ^ a b c Criminal Law - Cases and Materials, 7th ed. 2012, Wolters Kluwer Law & Business; John Kaplan, Robert Weisberg, Guyora Binder, ISBN 978-1-4548-0698-1, [1]
  2. ^ "States That Have Stand Your Ground Laws - FindLaw". Retrieved 14 August 2018.
  3. ^ State v. Allery, 101 Wash. 2d 591, 682 P.2d 312 (1984).
  4. ^ § 3.04(2)(b)(ii)
  5. ^ a b c No Duty to Retreat:Violence and Values in American History and Society 4030 (1991)
  6. ^ R v Bird (1985) 1 WLR 816
  7. ^ Evans v Hughes (1972) 3 A ER 412
  8. ^ Taylor v Mucklow (1973) CLR 750
  9. ^ Attorney General's Reference (No 2 of 1983) (1984) 1 AER 988

Further reading

[edit]
  • Wheatcroft, Melissa (Winter 1999). "Duty to Retreat for Cohabitants – In New Jersey a Battered Spouse's Home Is Not Her Castle". Rutgers Law Journal. 30: 539.
  • Beale, Joseph H. (June 1903). "Retreat from a Murderous Assault". Harvard Law Review. 16 (8): 567–82. doi:10.2307/1323119. JSTOR 1323119.
  • Ashworth, A. J. (2009). "Self-Defence and the Right to Life". The Cambridge Law Journal. 34 (2): 282–307. doi:10.1017/S0008197300086128. S2CID 146561102.
  • Epps, Garrett (Winter 1992). "Any Which Way but Loose: Interpretive Strategies and Attitudes Toward Violence in the Evolution of the Anglo-American 'Retreat Rule'". Law and Contemporary Problems. 55 (1): 303–31. doi:10.2307/1191769. JSTOR 1191769.
  • Brown, Richard Maxwell (1979). "Southern Violence — Regional Problem or National Nemesis?: Legal Attitudes Toward Southern Homicide in Historical Perspective". Vanderbilt Law Review. 32 (1): 225–50.
  • Brown, Richard Maxwell (1991). No Duty to Retreat: Violence and Values in American History and Society. (New York: Oxford University Press).
  • Ross, Luevonda P. (Fall 2007). "Transmogrification of Self-Defense by National Rifle Association-Inspired Statutes: From the Doctrine of Retreat to the Right to Stand Your Ground". Southern University Law Review. 35: 1.
  • Suk, Jeannie. (2009). At Home in the Law: How the Domestic Violence Revolution is Transforming Privacy. (New Haven: Yale University Press).