Duty to retreat: Difference between revisions

Content deleted Content added

Inline

Revision as of 07:22, 4 December 2017

In criminal law, the duty to retreat, or requirement of safe retreat,^[1]^: 550 is a legal requirement in some jurisdictions that a threatened person cannot stand one's ground and apply lethal force in self-defense, but must instead retreat to a place of safety.^[1]^{: 549–554}

It is a specific component which sometimes appears in the defense of self-defense, and which must be addressed if defendants are to prove that their conduct was justified. In those jurisdictions where the requirement exists, the burden of proof is on the defense to show that the defendant was acting reasonably. Elements of acting reasonably include 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 using force.

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.

Other states 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 an especial right to be.^[2]. In other states, this has been accomplished by statute, such as that suggested by the Model Penal Code^[3].

Still other states have passed stand your ground laws that do not require an individual to retreat and allow one to match force for force, deadly force for deadly force. ^[4]

Most state legal systems began by importing English common law such as Acts of Parliament of 2 Ed. III (Statute of Northampton), and 5 Rich. II of 1381 (Forcible Entry Act 1381)—which imposed criminal sanctions intending to discourage the resort to self-help.^[5]^[6]^[7] This required a threatened party to retreat, whenever property was "involved" and resolve the issue by civil means.

Today, the majority of American states have construed their statutes of forcible entry, both penal and civil, in such a manner as to abrogate (i.e. abolish) the common law privilege to use force in the recovery of possession of land.^[8]

In Erwin v. State (1876), the Supreme Court of Ohio wrote that a "true man", one without fault, would not retreat.^[9] In Runyan v. State (1877), the Indiana court rejected a duty to retreat, implying it was un-American,^[1]^: 551–2 writing of a referring to the distinct American mind,^[9] "the tendency of the American mind seems to be very strongly against" a duty to retreat.^[9] 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

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.^[10]

Carrying weapons

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.^[11] 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.^[12] 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.^[13]

International human rights law

Human rights law does not require police officers to retreat from a confrontation with a suspect and avoid thereby the use of lethal force. In principle, they may stand their ground to uphold law and order. However, they have a duty to deescalate situations so as to minimize the need to use force. This may mean in some situations, securing the area and staging a tactical withdrawal from an area (while preventing an escape of the suspect), so as to allow time to resolve the situation by negotiation or other non-violent means. ^[14]

References

^ ^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]
^ State of Washington v. Allery, 101 Wash.2d 591, 682 P.2d 312 (1984)
^ § 3.04(2)(b)(ii)
^ http://criminal.findlaw.com/criminal-law-basics/states-that-have-stand-your-ground-laws.html
^ Dickinson v. Maguire, 9 Cal. 46, The Chief Justice of California during the ruling was David S. Terry, who ironically, was later killed by order of Associate Supreme Court Justice Field under the guise of self-defense.
^ Daluiso v. Boone , 71 Cal.2d 484 for English common law history
^ Dustin v. Cowdry (1851) 23 Vt. 631, 639–640. Official Vermont Reports, Vol. 23, Pg. 631 (Supreme Court of Vermont reporter). 1851. Retrieved July 27, 2013. [H]ad the present plaintiff elected to have proceeded under the statute, there can be no doubt, he might have subjected the defendants to punishment by way of fine, obtained restitution of the possession, and sustained an action of trespass, and recovered three fold damages for the expulsion and detention. And if such be the undeniable rights of the parties, under the statute, it is difficult to see, why, if the party waive all penalty under the statute, he may not sustain trespass qu. cl. against the defendants, the same as against any other wrong doers. Their [defendants'] right to possession gave them no more right to enter in that manner [by force], than if they had been mere strangers. ...
^ 1 Harper and James, op.cit. supra, at § 3.15, p. 258; Prosser, Law of Torts (3d ed. 1964) § 23, p. 125. See e.g., Mason v. Hawes (1884) 52 Conn. 12, 16 [52 Am.Rep. 552]; McIntyre v. Murphy (1908) 153 Mich. 342, 346–347 [116 N.W. 1003, 1004–1005, 15 Ann.Cas. 802]; Lobdell v. Keene (1901) 85 Minn. 90, 101 [88 N.W. 426, 430]; Strauel v. Lubeley (1915) 186 Mo.App. 638, 643–644 [172 S.W. 434, 435–436]; Mosseller v. Deaver (1890) 106 N.C. 494, 496–498 [11 S.E. 529, 530, 8 L.R.A. 537, 19 Am.St.Rep. 540]; Weatherly v. Manatt (1919) 72 Okla. 138, 139–140 [179 P. 470, 471]; Walgreen Co. v. Walton (1932) 16 Tenn.App. 213, 229 [64 S.W.2d 44, 53]; Ray v. Dyer (Tex.Civ.App. 1929) 20 S.W.2d 328, 330; Buchanan v. Crites (1944) 106 Utah 428, 436 [150 [71 Cal.2d 493] P.2d 100, 103]. See also Whitney v. Brown (1907) 75 Kan. 678, 681–683 [90 P. 277, 278, 11 L.R.A. N.S. 468, 12 Ann.Cas. 768]; Rest.2d Torts, § 185, com. a.) See Daluiso v. Boone , 71 Cal.2d 484
^ ^a ^b ^c No Duty to Retreat:Violence and Values in American History and Society 4030 (1991)
^ R v Bird (1985) 1 WLR 816
^ Evans v Hughes (1972) 3 A ER 412
^ Taylor v Mucklow (1973) CLR 750
^ Attorney General's Reference (No 2 of 1983) (1984) 1 AER 988
^ Jan Arno Hessbruegge, Human Rights and Personal Self-Defense in International Law, Oxford University Press, 2017, ch. 4, https://books.google.ht/books/about/Human_Rights_and_Personal_Self_Defense_i.html?id=8vfCDAEACAAJ&redir_esc=y

@@ Line 10: / Line 10: @@
 Other states 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 an especial right to be.<ref>''State of Washington v. Allery'', 101 Wash.2d 591, 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>.
-Still other states have passed [[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. <ref>http://criminal.findlaw.com/criminal-law-basics/states-that-have-stand-your-ground-laws.html</ref> From a human rights and public policy point of view, these laws are highly problematic and typically irreconcilable with international human rights obligations assumed by the U.S. <ref> Jan Arno Hessbruegge, Human Rights and Personal Self-Defense in International Law, Oxford University Press, 2017, ch. 6, https://books.google.ht/books/about/Human_Rights_and_Personal_Self_Defense_i.html?id=8vfCDAEACAAJ&redir_esc=y </ref>
+Still other states have passed [[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. <ref>http://criminal.findlaw.com/criminal-law-basics/states-that-have-stand-your-ground-laws.html</ref>
 Most state legal systems began by importing English common law such as Acts of Parliament of 2 Ed. III ([[Statute of Northampton]]), and 5 Rich. II of 1381 ([[Forcible Entry Act 1381]])—which imposed criminal sanctions intending to discourage the resort to self-help.<ref>[http://www.lexisnexis.com/clients/CACourts/ ''Dickinson v. Maguire,'' 9 Cal. 46],  The [[Chief Justice of California]] during the ruling was [[David S. Terry]], who ironically, was later killed by order of [[Stephen Johnson Field |