With most of the media reporting on duty to retreat, or no duty to retreat, without much of a clue what they are talking about, it’s worth noting a few things about the law. For one, this is not a new concept dreamt up by the NRA in the last several years. The tradition goes far back. Eastern states tended to be pretty divided, but Western states, including California, almost universally did not include any retreat requirement into their laws.
This Wikipedia article examines the law on a state by state basis, and does a better job with the topic than any hysterical and poorly research article I’ve seen put together in the media. But it does miss a few states. Here is a more complete list of states that do not include a Duty to Retreat requirement in their law. I am going to ask readers to help me expand this list, or provide links to sources that show the states have no duty to retreat. I’m also including an asterisk next to states that have removed duty to retreat through recent legislation.
- Alabama *
- Arizona
- California
- Colorado
- Florida *
- Georgia
- Idaho
- Illinois
- Indiana
- Kansas (previously no duty to retreat was common law)
- Kentucky
- Louisiana *
- Michigan *
- Missouri *
- Montana *
- Nevada
- New Hampshire *
- New Mexico
- New York
- North Carolina *
- North Dakota *
- Oklahoma *
- Oregon
- Pennsylvania *
- South Carolina *
- South Dakota
- Tennessee
- Texas
- Utah
- Virginia (common law)
- Washington
Let me know what you can add from your own states, and let me know whether the change was in the last 10 years, or whether the state has traditionally maintained a no-duty-to-retreat law. I’m looking to augment what I already have, as my information here is incomplete, and I don’t have time to research all 50 states. If you can let me know if any states need asterisks, I’d like to know that. In all cases, please include links to source materials.
More for California: http://www.shouselaw.com/self-defense.html
Add North Carolina. HB650 removed the duty to retreat the law took effect Dec 1, 2011.
http://www.ncga.state.nc.us/gascripts/statutes/statutelookup.pl?statute=14-51.3
§ 14‑51.3. Use of force in defense of person; relief from criminal or civil liability.
(a) …However, a person is justified in the use of deadly force and does not have a duty to retreat in any place he or she has the lawful right to be if either of the following applies:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another.
(2) Under the circumstances permitted pursuant to G.S. 14‑51.2.
I can’t find my “Gun Owners Guide of VA” to get the specific reference for this. But there’s a caveat to “no duty to retreat” in VA. You are only protected if you didn’t help escalate the situation to a deadly force scenario (i.e. scream and yell at someone until he swings, and then shoot because he attacked you). If you contributed to the situation, and it rises to lethal force, you have a duty to retreat at that point.
With the way common law has shaped self-defense in VA, someone here doing exactly what Zimmerman did would most likely have been either in jail, or out on bail, at this point. VA doesn’t allow lethal force to prevent commission of a felony. It’s only allowed in 4 cases (all paraphrased):
1. reasonable fear that you will be killed or beaten close to it.
2. the same fear for a family member’s safety.
3. the same fear for a third party
4. prevention of rape
So getting out of the safety of your vehicle to follow someone suspicious, and then eventually shooting him, would not go well for you here.
“VA doesn’t allow lethal force to prevent commission of a felony.”
Actually, it does.
It’s not something I would want to take to court, though, even if I knew 100% that I would win.
I think Michigan passed such a law in 2006.
(Michigan Public Act 309, from Michigan House Bill 5143.)
More on Virginia. VA is governed by common law, and is “stand your ground” as long as you did not provoke the aggression, and “duty to retreat” if you did.
A Castle Doctrine bill was debated in the legislature this year, and was withdrawn/defeated due to concerns that it would negatively affect common law protections.
For Kansas, it looks like AG Derek Schmidt amended K.S.A. 2010 Supp. § 21-3218 with 21-5230 last year. Sorry, not a legal beagle – I didn’t know how else to put that!
Connecticut Law
A. Duty to retreat § 53a-19 (b) (1)
(One such / Another) circumstance is that a person is not justified in using deadly physical force upon another person if (he/she) knows that (he/she) can avoid the necessity of using such force with complete safety by retreating. This disqualification requires a defendant to retreat instead of using deadly physical force whenever two conditions are met: 1) a completely safe retreat is in fact available to (him/her); and 2) (he/she) knows that (he/she) can avoid the necessity of using deadly physical force by making that completely safe retreat. The law stresses that self-defense cannot be retaliatory. It must be defensive and not punitive.
The term “complete safety,” as used in this statute, means without any injury to the defendant whatsoever. A person acts “knowingly” with respect to a circumstance described in a statute when (he/she) is aware that such circumstance exists.
It is important to remember that the defendant has no burden whatsoever to prove that (he/she) could not have retreated with complete safety or that (he/she) didn’t know that a safe retreat was possible before (he/she) used physical force against . To the contrary, you may only reject (his/her) defense on the basis of this statutory disqualification if you find that the state has proved beyond a reasonable doubt that (he/she) did know that (he/she) could retreat with complete safety.
http://www.jud.ct.gov/ji/criminal/part2/2.8-3.htm
***
Pretty decent perspective on duty to retreat. Only if a guaranteed safe means is available, and that it can be proved without a doubt that the defender was aware of a 100% safe escape.
Might be good to include a sub-category of those states who have duty-to-retreat, but no burden on the defender to prove such.
Ohio has Duty to retreat, unless you are in your Home, Car, or legally and with permission in the home or car of another.
Just to clarify Ohio law there is no duty to retreat while in your own car or a car of an immediate family member. If you are in a friend’s car, there still is a duty to retreat.
See my comment below about the reverse burden of proof in Ohio – DEFENDANT must prove that was self-defense, unlike in EVERY other state.
Arizona Revised Statues 13.405
“…
B. A person has no duty to retreat before threatening or using deadly physical force pursuant to this section if the person is in a place where the person may legally be and is not engaged in an unlawful act. ”
Complete section here: http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/13/00405.htm&Title=13&DocType=ARS
Current Alaska law:
AS 11.81.335 (b) A person may not use deadly force under this section if the person knows that, with complete personal safety and with complete safety as to others being defended, the person can avoid the necessity of using deadly force by leaving the area of the encounter, except there is no duty to leave the area if the person is
(1) on premises
(A) that the person owns or leases;
(B) where the person resides, temporarily or permanently; or
(C) as a guest or express or implied agent of the owner, lessor, or resident;
(2) a peace officer acting within the scope and authority of the officer’s employment or a person assisting a peace officer under AS 11.81.380;
(3) in a building where the person works in the ordinary course of the person’s employment; or
(4) protecting a child or a member of the person’s household.
Alaska HB 80, which is now in the Senate Judiciary Committee laying low for a bit, amends the statute to read,
(4) protecting a child or a member of the person’s household; or
(5) in any place where the person has a right to be.
It has 28 co-sponsors House and Senate out of 60 total legislators.
Use of force in defense of a third party has the same retreat rules as for defense of self.
Section 11.81.350.: Justification: Use of force in defense of property and premises.
I’ll leave out the non-deadly elements…
(b) A person may use deadly force upon another when and to the extent the person reasonably believes it necessary to terminate what the person reasonably believes to be the commission or attempted commission of arson upon a dwelling or occupied building.
(c) A person in possession or control of any premises, or a guest or an express or implied agent of that person, may use
(2) deadly force upon another when and to the extent the person reasonably believes it is necessary to terminate what the person reasonably believes to be a burglary in any degree occurring in an occupied dwelling or building.
(e) A person
(1) in a vehicle, or forcibly removed from a vehicle, may use deadly force upon another when and to the extent the person reasonably believes it is necessary to terminate what the person reasonably believes to be a carjacking of that vehicle at or about the time the vehicle is carjacked;
(2) outside of a vehicle may use deadly force upon another when and to the extent the person reasonably believes it is necessary to terminate what the person reasonably believes to be the theft of that vehicle when another person, other than the perceived offender, is inside of the vehicle; this paragraph does not apply to a person outside of a vehicle who is involved in a dispute with a person inside of the vehicle who is a household member of that person; in this paragraph, “household member” has the meaning given in AS 18.66.990.
(f) A person justified in using force under this section does not have a duty to leave or attempt to leave the area of the encounter before using force.
(g) In (e) of this section,
(1) “carjacking” means a robbery involving the taking or attempted taking of a vehicle from a person in possession of the vehicle;
(2) “vehicle” means a “motor vehicle” as defined in AS 28.40.100, an aircraft, or a watercraft.
So, the only time there is really a “duty to retreat” is when you are on property open to the public, in which you have no ownership, agency or guest-right, you are not in your car, and you are not accompanied by a member of your household.
If a law is going to have a duty to retreat, that’s not a horribly restrictive example.
(5) “household member” includes
(A) adults or minors who are current or former spouses;
(B) adults or minors who live together or who have lived together;
(C) adults or minors who are dating or who have dated;
(D) adults or minors who are engaged in or who have engaged in a sexual relationship;
(E) adults or minors who are related to each other up to the fourth degree of consanguinity, whether of the whole or half blood or by adoption, computed under the rules of civil law;
(F) adults or minors who are related or formerly related by marriage;
(G) persons who have a child of the relationship; and
(H) minor children of a person in a relationship that is described in (A) – (G) of this paragraph;
That’s damn near everybody I know, in one way or another.
Per Ian, Jury Instructions for 11.81.335
http://www.courts.alaska.gov/crimins.htm
[notes that the instruction must include the instruction for non-deadly force as that is referenced for deadly, restates the statute colloquially]
“…Unless the state has proven beyond a reasonable doubt that the defendant did not act in self defense, you shall find the defendant not guilty.”
“The decision about whether to instruct the jury on self defense belongs to the trial judge. The defendant bears the burden of producing some evidence in support of a claim of self defense before the court must give the instruction. The court need not give an instruction if the only basis for a self defense claim is speculation. Hamilton v. State, 59 P. 3d 760 (Alaska App. 2002). The “some evidence” burden, however, is not a heavy one, and is satisfied when the evidence, viewed in the light most favorable to the defendant, might arguably lead a juror to entertain a reasonable doubt as to the defendant’s guilt. Paul v. State, 655 P.2d 772, 775 (Alaska App. 1982). Even a weak or implausible self defense claim is a question for the jury, and the trial judge should not evaluate the credibility, strength, or weight of evidence in determining whether the burden has been met. Folger v. State, 648 P.2d 111, 113 (Alaska App. 1982); Paul v. State, 655 P.2d at 776. “Some evidence” may consist, for example, solely of the uncorroborated testimony of the defendant. Brown v. State, 698 P.2d 671, 674 (Alaska App. 1985). But the defendant need not testify so long as there is other evidence of self defense. Blackhurst v. State, 721 P.2d 645 (Alaska App. 1986).
In determining whether there is some evidence of self defense, the court must examine every element of the justification, depending upon the particular facts of the case. For example, the court must evaluate whether there is some evidence that (1) the defendant actually believed the use of nondeadly force was necessary, and (2) a reasonable person would have held such a belief under the same circumstances. Weston v. State, 682 P.2d 1119, 1121 (Alaska, 1984). Similarly, it may be necessary in a particular case to determine whether there is some evidence that the defendant was not an initial aggressor. Brown v. State, 698 P.2d 671, 673-74 (Alaska App. 1985).
The definition of “force” in AS 11.81.900(b) includes actual bodily impact, restraint, or confinement, as well as the threat of imminent bodily impact, restraint, or confinement. Thus, self defense may apply where a defendant reasonably perceived a threat of harm, so long as the perceived harm was imminent. Ha v. State, 892 P.2d 184, 194 (Alaska App. 1995).
The reasonableness of a defendant’s beliefs must be evaluated by the jury based on the circumstances of the situation facing the defendant, including any relevant knowledge the defendant had about the other person; physical attributes of all persons involved (including the defendant); and any prior experiences that could provide a reasonable basis for the defendant’s beliefs. Ha v. State, 892 P.2d 184, 194-95 (Alaska App. 1995). Reasonable belief means that a reasonable person would have held such a belief under the same circumstances. Weston v. State, 682 P.2d 1119, 1121 (Alaska 1984). A defendant’s distorted perceptions due to mental illness, however, may not be a factor in evaluating the reasonableness of the defendant’s beliefs. Ha, 892 at 195-96.
This pattern instruction may require slight modification when a defendant claims that an act of self defense was prompted by the danger posed by a group of attackers, and not just the danger posed by the alleged victim named in the charging document. Under such circumstances, the defendant is entitled to have the jury assess the defendant’s actions in light of the total danger posed (or apparently posed) by the group. Allen v. State, 51 P.3d 949, 958-59 (Alaska App. 2002).”
Of course NJ has a duty to retreat, unless you’re ‘inside’ of your own home. ‘inside’ is just that, ‘inside’, mowing your lawn, or washing your car, you have a duty to retreat.
You can apparently stand your ground at the threshold, or on a pitch, of the house. You do not have to retreat into the house.
And, assuming hte jury instruction I got from the judge was accurate, the duty to retreat requires “perfect” safety. OTOH, NJ also requires that deadly force only be employed in response to deadly force, and brandishing a firearm is not use of deadly force. (actual example, when I requested clarification)
Don’t forget case law, e.g. in a previous blog item I mentioned how the Massachusetts judiciary nullified or narrowed as much as possible the state’s laws on duty to retreat inside your residence. Something similar has happened at least at the appeals court level in Missouri WRT to our Castle Doctrine law, according to
Self Defense Laws of All 50 States (With Plain-Talk Summaries) published in 2010, despite the language of the law being very clear. And they confirm my memory of Massachusetts case law with case citations from 1999 and 2002.
As for Duty to Retreat outside of your residence here in Missouri, they couldn’t determine what the status is so you’d best assume you have to, their section closes saying “Until the legislature or the courts officially sanction the no-duty-to-retreat rule, it’s going to be risky to ever use force in self-defense without first retreating“.
IANAL, but it is my understanding that Maryland follows common law with regard to self-defense and duty to retreat. You can read the jury instructions used at http://en.wikipedia.org/wiki/Right_of_self-defense_in_Maryland.
We do have a civil immunity statute.
The civil immunity statue was passed in 2010.
Michigan passed a set of 6 in June of 2006 that went way beyond no duty to retreat anywhere one can legally be. It is much harder for prosecutors to bring charges in a shooting now and a good shoot that results in a civil suit allows double damages for filing such a suit.
As you note, Sebastian, Kansas’ no duty to retreat is a recent legislative change. However, the change is largely illusory.
Kansas statute prior to the change did NOT include a duty to retreat; the “common law” here was that there was no such duty. Further, jury instructions in relevant cases always included Pattern Instruction Kansas (PIK) 54.17-A (no longer necessry since the legislative change), which told jurors in no uncertain terms that a person had no duty to retreat before he could defend himself from unlawful aggression. The current language is that one may “meet force with force.”
Like you, I’d personally ALWAYS advise someone to retreat, if possible. Having to use one’s weapon will always bring a world of trouble, even if entirely justified. You’ll possibly be charged, and even if aquitted, it will be costly in terms of dollars and grief. You’ll likely be sued. Your life will change.
BTW – I practice criminal law in Kansas, so I know of which I speak.
Thanks. I will remove the asterisk in this case.
South Carolina:
http://www.sled.sc.gov/ProtectionOfPeople.aspx?MenuID=CWP
PROTECTION OF PERSONS AND PROPERTY ACT
The stated intent of the legislation is to codify the common law castle doctrine, which recognizes that a person’s home is his castle, and to extend the doctrine to include an occupied vehicle and the person’s place of business. This bill authorizes the lawful use of deadly force under certain circumstances against an intruder or attacker in a person’s dwelling, residence, or occupied vehicle. The bill provides that there is no duty to retreat if (1) the person is in a place where he has a right to be, including the person’s place of business, (2) the person is not engaged in an unlawful activity, and (3) the use of deadly force is necessary to prevent death, great bodily injury, or the commission of a violent crime. A person who lawfully uses deadly force is immune from criminal prosecution and civil action, unless the person against whom deadly force was used is a law enforcement officer acting in the performance of his official duties and he identifies himself in accordance with applicable law or the person using deadly force knows or reasonably should have known the person is a law enforcement officer.
H.4301 (R412) was signed by the Governor on June 9, 2006.
Washington has no specific castle doctrine law, though WA also has no duty to retreat. Washington will also reimburse a person if they are found not guilty by reason of self defense.
Nebraska in the process of passing Castle Doctrine under Legislative Bill 804.
http://nraila.org/legislation/state-legislation/2012/03/nebraska-judiciary-committee-passes-castle-doctrine-bill.aspx
http://protectvictimsnow.org/
More here
http://nebraskalegislature.gov/bills/view_bill.php?DocumentID=15717
Thanks for the feedback. Keep it coming. I’ll be updating this post later in the day.
Idaho Criminal Jury Instructions (ICJI)
1519 SELF DEFENSE DUTY TO RETREAT
In the exercise of the right of [self defense] [defense of another], one need not retreat. One may stand one’s ground and defend [oneself] [the other person] by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge[; and a person may pursue the attacker until [the person] [the other person] has been secured from danger if that course likewise appears reasonably necessary]. This law applies even though the person being [attacked] [defended] might more easily have gained safety by flight or by withdrawing from the scene.
Comment
State v. McGreevey, 17 Idaho 453, 466, 105 Pac. 1047 (1909);
State v. Dunlap, 40 Idaho 630, 637, 235 Pac. 432 (1925).
This instruction may be used with homicide or with battery. The committee suggests that the bracketed language at the end of the second sentence only be used where the facts indicate that the defendant pursued his attacker.
link
Texas does NOT have a “duty to retreat” requirement:
http://www.statutes.legis.state.tx.us/docs/PE/htm/PE.9.htm
Nevada Link points to inaccessible webpage?
Here’s the law from the Nevada Revised Statutes on “NRS 200.120 “Justifiable homicide†defined; no duty to retreat under certain circumstances”:
link
Colorado recently tried to expand the law from home and car to include place of business. It failed.
I think NY (previously no duty to retreat at common law) did impose a duty to retreat when it adopted the Model Penal Code a few decades back. Google “New York Penal Law”.
Also a RED ALERT for Ohio, which is the only state in the Union that still reverses the burden of proof for defendants claiming self-defense. (See Martin v. Ohio [US Supreme Court] – the statute hasn’t changed substantively since).
In Ohio, defendants still have to prove on the balance of probabilities that their use of force met the legal self-defense requirements. In EVERY other state, once a defendant claims self-defense, the prosecution must disprove self-defense beyond a reasonable doubt. That’s why, even though there’s probable cause for Zimmerman in Florida, the district attorney isn’t keen to prosecute – disproving self-defense beyond a reasonable doubt without witnesses is incredibly difficult.
I really need to figure out how to keep really long links from screwing up the formatting. If I changed your post to say “link” that’s why.
http://www.judiciary.state.nj.us/criminal/juryindx.pdf the jury instructions for NJ, which sends you to http://www.judiciary.state.nj.us/criminal/charges/justif001.pdf – 2c:3-4
“If the force used by the defendant was not immediately necessary for the defendant’s protection or if the force used by the defendant was disproportionate in its intensity, then the use of such force by the defendant was not justified and the self defense claim fails”
“The use of deadly force may be justified only to defend against force or the threat of force of nearly equal severity and is not justifiable unless the defendant reasonably believes that such force is necessary to protect (himself/herself) against death or serious bodily harm”
“If you find that the defendant knew that (he/she) could avoid the necessity of using deadly force by retreating, provided that the defendant knew (he/she) could do so with complete safety, then the defense is not available to (him/her).
An exception to the rule of retreat, however, is that a person need not retreat from his or her own dwelling, including
the porch, unless he or she was the initial aggressor. N.J.S.A. 2C:3-4b(2)(b)(i)”
The jury instructions are enlightening; and I’d advise everyone to look up where available, because that is what the 12 sitting in judgement of the facts will hear.
(As a note, defense of premises is not limited in proportion nor is deadly force only permitted in response to deadly force, not is retreat required – NJ is a Castle Doctrine state by statute law)