Category: Law

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.

This one didn’t involve a gun, but a knife. This is another case where I think the application of the 2005 law, in this case by a judge granting the defendant immunity,  is questionable. There’s a few things here worth covering:

The law also bestowed immunity from prosecution and civil suits on people who are deemed to have acted in self-defense. The Florida Supreme Court has said that the question of whether the immunity applies in each case should be decided by a judge, not a jury.

Lots of people are bandying “common law” around in regards to self-defense, especially suggesting that Florida’s laws are a departure from common law. Anyone who is suggesting this is ignorant of what the common law on self-defense really was. First, a brief history of what common law is. Common law is essentially judge made law, or customary law, that is built up by precedent over time. For many years, much of the laws of England were done this way. The Romans brought us the idea of civil law, where everything is written down by statute. Self-defense traditionally was a common law justification for certain crimes such as murder, manslaughter, and assault. These justifications were, for a long time, not codified in most states. Codification didn’t generally begin until fairly recently, and some states, such as Virginia, still use common law self-defense. So what was common law self-defense? To understand that, we go back to the authority on the common law, which is William Blackstone, who wrote Commentaries on the Laws of England. But to summarize:

• Under common law, it was legal to use deadly force against a person who was committing a felony. Not only was it legal, it was considered a civic duty to do so.
• It was legal to use deadly force against anyone breaking into a house at night. It was not considered acceptable to do this during the day, unless robbery was a motive.
• Duty to retreat only applied, under common law, to someone who was defending himself against an assault in an “affray” or “brawl,” and with the exception that there was no duty to retreat “in sudden and violent cases; when certain and immediate suffering would be the consequence of waiting for the assistance of the law.”

As the common law evolved in the United States, Americans never had a particularly liking for the duty to retreat, and it worked its way out of the common law in many states, including New York, who included no such requirement from common law when they codified their self-defense statutes. Many states, when they codified their self-defense statutes, ignored common law and essentially created this duty even when presented with someone committing a felony. Pennsylvania, for instance, does not allow for deadly force to prevent commission of a felony. That was dropped during codification. But the idea that the common law created a duty to retreat in all circumstances is just plain false. Many of the “stand your ground” or “castle doctrine” laws more closely match common law practices than do statutes of states that require retreat even when faced with a felonious attack.

One can see that even with the recent Zimmerman case, that whether a duty to retreat would apply under common law would hinge on whether “certain and immediate suffering would be the consequence of waiting for the assistance of the law,” rather than some absolute duty, as some have made it out to be. Also worth noting that in Blackstone’s time, law enforcement was considered a duty of every citizen, and people were more civically minded back then. With the advent of professional policing in the 19th century, individual citizens have become more removed from looking out for the safety and well-being of their own communities.

George Zimmerman, a lone, self-appointed neighborhood watch captain, would not have been in the tradition of Blackstone’s time. But neither would a neighborhood full of people who hear someone screaming for help, and don’t bother to act until a shot is fired.