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Duty to retreat

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In law, the duty to retreat is a legal requirement in some jurisdictions that a threatened person cannot harm another in self-defense (especially lethal force) when it is possible to instead retreat to a place of safety.[1]: 549–554  This requirement contrasts with 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.

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.[2] 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.[3] In other states, this has been accomplished by statute, such as that suggested by the Model Penal Code[4].

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. [5]

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.[6][7][8] 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.[9]

In Erwin v. State (1876), the Supreme Court of Ohio wrote that a "true man", one without fault, would not retreat.[10] 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,[10] "the tendency of the American mind seems to be very strongly against" a duty to retreat.[10] 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.[11]

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.[12] 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.[13] 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.[14]

See also

References

  1. ^ a b 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. ^ See, e.g., State v. Abbott, 36 N.J. 63, 71-72 174 A.2d 881 (1961) ("[D]eadly force is not justifiable "if the actor knows that he can avoid the necessity of using such force with complete safety by retreating."); Commonwealth v. Eberle, 474 Pa. 548, 557-58, 379 A.2d 90 (1977) ("[T]he prosecution had a duty to establish that the appellant knew that she could avoid the necessity of using deadly force with complete safety by retreating... Because the prosecution has failed to show that the only escape route which appellant possibly could have used to avoid the confrontation could have been used without increasing the risk of injury to which she was already exposed, it has failed to prove beyond a reasonable doubt that appellant violated any duty to retreat.")
  3. ^ State v. Allery, 101 Wash. 2d 591, 682 P.2d 312 (1984).
  4. ^ § 3.04(2)(b)(ii)
  5. ^ "States That Have Stand Your Ground Laws - FindLaw". Retrieved 14 August 2018.
  6. ^ "Dickinson v. Maguire, 9 Cal. 46". Retrieved 14 August 2018.
  7. ^ See Daluiso v. Boone, 71 Cal.2d 484, 455 P.2d 811 (1969) for English common law history.
  8. ^ 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. ...
  9. ^ 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., Daluiso, 71 Cal.2d 484; Mason v. Hawes, 52 Conn. 12, 16, 52 Am. Rep. 552 (1884); Whitney v. Brown, 75 Kan. 678, 681–683, 90 P. 277, 278, 11 L.R.A. N.S. 468, 12 Ann.Cas. 768 (1907); McIntyre v. Murphy 153 Mich. 342, 346–347,116 N.W. 1003, 1004–1005, 15 Ann.Cas. 802 (1908); Lobdell v. Keene, 85 Minn. 90, 101, 88 N.W. 426, 430 (1901); Strauel v. Lubeley, 186 Mo.App. 638, 643–644, 172 S.W. 434, 435–436 (1915); Mosseller v. Deaver, 106 N.C. 494, 496–498, 11 S.E. 529, 530, 8 L.R.A. 537, 19 Am. St. Rep. 540 (1890); Weatherly v. Manatt, 72 Okla. 138, 139–140, 179 P. 470, 471 (1919); Walgreen Co. v. Walton, 16 Tenn. App. 213, 229, 64 S.W.2d 44, 53 (1932); Ray v. Dyer, 20 S.W.2d 328, 330 (Tex. Civ. App. 1929); Buchanan v. Crites, 106 Utah 428, 436, 150 P.2d 100, 103 (1944); Rest.2d Torts, § 185, com. a.).
  10. ^ a b c No Duty to Retreat:Violence and Values in American History and Society 4030 (1991)
  11. ^ R v Bird (1985) 1 WLR 816
  12. ^ Evans v Hughes (1972) 3 A ER 412
  13. ^ Taylor v Mucklow (1973) CLR 750
  14. ^ Attorney General's Reference (No 2 of 1983) (1984) 1 AER 988

Further reading

  • 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. doi:10.1017/S0008197300086128.
  • 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).
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