Duty to retreat
|This article relies too much on references to primary sources. (July 2013)|
|Part of the common law series|
|Other common law areas|
In the criminal law, the duty to retreat is a specific component which sometimes appears in the defense of self-defense, and which must be addressed if the defendant is to prove that his or her 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.
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. The Model Penal Code 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.
Many states employ 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. 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."
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. 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.
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.
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. 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. 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.
- State of Washington v. Allery, 101 Wash.2d 591, 682 P.2d 312 (1984)
- § 3.04(2)(b)(ii)
- 137 Wn.2d 533 State of Washington v. Studd; Decided 1999/04/01.
- 150 Wn.2d 489 State of Washington v. Reynaldo Redmond; Decided 2003/12/06.
- 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
- 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
- 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.
- 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.