Self-Defense

The Duty to Retreat in the Founding Era

The stand your ground / duty to retreat debate has been around in the U.S. since the very beginning.

|The Volokh Conspiracy |

A commenter on the right to install bulletproof glass post writes,

I think that with a decently intelligent lawyer that laws that establish a "duty to retreat" would be found unconstitutional.

Retreat? A duty of Americans of any stripe? Pretty much a concept that would boggle the mind of the founders….

Well, it turns out that Founding-era views on this subject were rather more complex than our guesses—based on our sense of their world-view—might suggest.

[1.] First, just to make clear, "duty to retreat" is a somewhat imprecise shorthand. It's not actually a "duty"—you can't be sued or prosecuted for not retreating as such. Rather, it's a limitation on the right to lethal self-defense: In those states that recognize it (now a substantial minority), you're not allowed to use lethal force to defend yourself if you can avoid the necessity for lethal force by retreating with complete safety. This limitation applies even when you're otherwise entitled to use lethal force (i.e., you're being threatened with death, serious bodily injury, kidnapping, rape, or, depending on the state, some other crimes), and even when you're in a place you have every right to be. The limitation generally doesn't apply, even in duty-to-retreat states, when you're in your own home.

Thus, say that you're in a bar, and another patron says, "leave, or I'll kill you," and flashes a knife (without showing any indication that he's about to lunge at you). In a stand-your-ground state, you can stay, and then when he does lunge at you, you can shoot him; if charged with murder, attempted murder, assault, or some such crime, you can prevail using the self-defense defense. In a duty-to-retreat state, doing so would be a crime (again, assuming that you could have retreated with perfect safety), because you would have lost the self-defense defense by not retreating. This is something of an oversimplification, but this is the big picture.

[2.] The duty to retreat is not a modern invention. Indeed, for an example of how long Americans have been debating whether there should be a "duty to retreat" before using deadly force in self-defense, see Commonwealth v. Selfridge (Mass. 1806), sometimes described as the first published American case to deal extensively with self-defense:

[A.] From Chief Justice Theophilus Parsons' charge to the grand jury:

A man may repel force by force in defense of his person, against any one who manifestly intends or endeavors by violence or surprise, feloniously to kill him. And he is not obliged to retreat, but he may pursue his adversary until he has secured himself from all danger; and if he kill him in so doing, it is justifiable self-defence.

[B.] Now from Justice Isaac Parker's charge to the trial jury:

A man, who in the lawful pursuit of his business, is attacked by another, under circumstances which denote an intention to take away his life, or do him some enormous bodily harm, may lawfully kill the assailant, provided he use all the means in his power, otherwise, to save his own life, or prevent the intended harm — such as retreating as far as he can, or disabling his adversary, without killing him if it be in his power.

And Justice Parker assures the jurors that this proposition is not "contested anywhere," even though it's inconsistent with Chief Justice Parsons' views (and Justice Parker was apparently present at the grand jury charge).

[3.] As best I can tell, the more or less orthodox rule during that era was the one set forth by Blackstone (and other writers):

  • Homicide in order to prevent an unprovoked felonious attack—a murder, rape, robbery, and so on—was labeled "justifiable," and allowed even if the defendant could have retreated.
  • Homicide in a brawl that started as a nonfelonious battery (or perhaps even as a consensual fight) but that turned life-threatening was labeled "excusable," and was excused only if the defendant couldn't have reasonably retreated.

This is not the distinction between Parsons' and Parker's charges, because both seemed to be describing justifiable homicide. But I suspect that it was highly influential in the early Republic; though Blackstone was an 1760s English legal scholar, the Framers often cited him and much respected him as an authority on English law, which they were mostly trying to preserve (though of course with some obvious exceptions in the area of constitutional law). For an early articulation that seems to echo this view, see the summary of the trial judge's instructions in State v. Wells, a 1790 New Jersey case:

The judge … [told the jury] that homicide was, in some cases, justifiable, and in others was excusable; but he remarked, that whoever would shelter himself under the plea of self defence, more particularly in the case of a mutual conflict, must make it appear that, before the mortal stroke was given, he had declined any further combat; that he had retreated as far as it was possible to do with safety, and that he killed his adversary through mere necessity, in order to avoid his own destruction.

He informed them … that it was the peculiar province of the jury … to determine … whether …. the prisoner, before striking the mortal blow, had retreated as far as he could with safety, and whether he had killed his adversary through mere necessity, and for the preservation of his own life. If they should be satisfied that he had not failed in either of these circumstances, they would acquit the prisoner; if otherwise, it was their obvious duty to find him guilty, as charged in the indictment.

And perhaps the complexity of the view, with its distinction between what is required for justifiable homicide and what is required for excusable, helped promote some of the uncertainty in early American law—and that uncertainty quickly (by 1806) turned into the general stand-your-ground / duty-to-retreat debate.

So we have a longstanding debate here, and one that the Framing generation wouldn't have found to be open-and-shut in either direction.

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37 responses to “The Duty to Retreat in the Founding Era

  1. The Blackstone view seems eminently sensible from an incentives point of view. You don’t want fights escalating if you can help it, but equally you don’t want the bad guys to be able to intimidate the innocent by threat and show of force.

    1. I look at it more as choosing to fight on your terms. For example, in the knife scenario, the victim could comply and walk outside–and then call the cops and let them deal with the aggressor. The victim ultimately wins then.

      1. Blackstone’s requirement to retreat doesn’t seem to apply to the initial knife scenario, a knife fight is from the beginning a deadly fight. Blackstone’s rule seems to apply a lot more to say a consensual fist fight dual- dueling if many kinds was legal back then. You can agree to such a fight, but in the course of such a fight you can’t pull a knife to finish the fight just bc you were losing and should have tapped out. At least that is how I read the logic of the rule.

  2. It seems like Justice Parker’s charge that the man being attacked “use all the means in his power, otherwise, to save his own life, or prevent the intended harm” is a much higher standard than modern states’ “with complete safety” standard? Or was Justice Parker’s phraseology understood in a loser way in 1806 than modern english speakers might interpret it?

  3. Of course, the drawback to retreating in the frontier age was that the redskins probably had you surrounded. The Russian army had a long tactical fondness of the strategic retreat as a means of setting the stage for the next battlefield. One of the benefits of smart retreating is that it provides more time to study what happened in the last battle and to update weapons and tactics for the next one.

    The Viet Cong and the NVA in my war were masters of retreating their way to victory. Holding territory means nothing if you are not significantly degrading the capabilities or the determination of a relentless enemy. When I face violent personal conflicts I have always favored backing away, or even running away, but not without laying down a verbal barrage of confusion. I find verbal taunts and threats to be counterproductive. It is much more effective to say something that really throws an opponent off.

    Ideas are such weapons of bewilderment. Hit them with an angle they haven’t thought of before. My first wife taught me that–we’d be arguing away, usually over old ground, and she would hit me with an argument that really came from left field. Camouflage, shape-shifting, incredible patience in letting things develop, all can be preferable to charging into full battle just because it’s all you can think of off the top of your head.

    1. Holding territory means nothing if you are not significantly degrading the capabilities or the determination of a relentless enemy.

      Well up to a point. Aside from whether holding territory might give you access to more resources than you are expending, holding territory gives you depth – you have room to retreat. The WW2 campaigns in Russia and North Africa show a cycle of rapid advance, halt as resupply becomes difficult, retreat; your retreat then becomes the other side’s rapid advance, they then outrun their supply and you counter attack sending them back again.

      But – as the Germans discovered in 1944 and 1945, when you retreat it really matters where you start retreating from. If your retreat begins close to your vital parts, you’re in real trouble. If you have acquired some space you can retreat a long way before exposing your vitals.

      In 1944 the Germans suffered a catastrophic defeat in France, and were knocked back to the Rhine within a few weeks of the breakout from Normandy. But then they held their position in the West for almost 6 months before the final crack. If they’d retreated from France immediately in June 1944 and let the Allies have France without a fight, then they’d simply have succeeded in advancing the final March 1945 collapse to July or August 1944. From the Rhine they had nowhere left to retreat.

      1. When you run out of room to retreat, there is the strategic surrender. Germany quit in 1918 but was not beaten in spirit, which, along with the hideously unfair terms imposed by the allies, brought about the inevitability of WWII. Carthage did the same sort of thing once.

        Today ISIS is pretty thoroughly beaten on the ground, but perhaps 5% or more of their zealots are simply blending back into surrounding populations. In fact, they may emigrate to the lands of the victors, still determined to carry on the holy cause. You could call this a stealth counter-attack and the more patient it is, the more effective it may be.

        Compounding all this is the development of ever-more affordable and available WMD’s. A really sore bunch of losers might get their hands nowadays on a revenge weapon for the history books!

        1. When you run out of room to retreat, there is the strategic surrender

          Sure, but you’d better be lucky in who you lose to.

  4. You’ve established that it wasn’t utterly unknown, anyway. But it may have been limited to instances where both parties have some culpability.

    Anyway, Parker tells the jury it isn’t contested anywhere, though he must inevitably know this is not true. This suggests to me that Justice Parker is not the most reliable source to cite.

  5. Blackstone stated that English law, “like that of every other well-regulated community,” would
    not “suffer with impunity any crime to be prevented by death unless the same, if committed, would also be
    punishable by death.”

    https://goo.gl/F8YGrw

    As a side note, when looking up proportionality, I have to say the Caroline test is pretty funny.
    https://en.wikipedia.org/wiki/Caroline_test

    1. JordanW: Indeed, though as you might gather this idea — developed at a time when English law allowed the death penalty for a vast range of crimes — didn’t survive once the death penalty was limited to murder (or, in some jurisdictions, abolished altogether). Gray v. Combs (Ky. Ct. App. 1832) offers this explanation (in a case involving a lawsuit over the killing of a slave, but the analysis is not limited to slaves or to civil cases):

      Blackstone has misconceived both the rule and the reason of it. In every civilized community except where there prevails such a draconic code as exists in England, the authorized extent of resistance in the necessary defence of the person or property against the perpetration of crimes, must greatly exceed the amount of punishment prescribed by law for their perpetration.

      The final sanctions of all wise codes are framed in a spirit of true clemency, and with a view rather to deter from the commission and repetition of crime, than thoroughly to avenge an injury done…. On the other hand, the right of necessary defence, in the protection of a man’s person or property, is derived to him from the law of nature, and should never be unnecessarily restrained by municipal regulation….

      1. Given that greatly excessive force is justified to prevent bodily harm, say a baseball player is enraged by an umpire’s call, and whacks him in the chest with his bat. Would it be lawful for a rival fan in the crowd to shoot the player dead?

        1. Excessive force being force in excess of the perpetrator’s force, not force in excess of what is required.

          1. The justification, if I’m applying the rule correctly, it that shooting the player dead was the only way to immediately prevent the umpire from receiving an additional whack in the chest, before security could handle the situation.

            1. And yet again, if your neighbor says “I’m going to kill you this time!” and starts to beat his dog, would a neighbor be justified in shooting the neighbor to preserve the life of the dog (thus preventing a felony attack)

              1. Generally, no, I don’t believe you’re legally entitled to use violence to preserve the life of *somebody else’s* animal. They’re legally property, not people.

  6. Brett Bellmore: I think that’s what I was saying. (1) A duty to retreat in cases where a brawl turns life-threatening was certainly well-established at the time of the Framing. (2) It may have been limited to instances where both parties have some culpability in starting the original brawl. (3) The Judge Parker quote suggests that some did not accept such a limitation. (4) Judge Parker may or may not have erred — he does seem to have erred in saying his view was uncontested — but it seems quite unlikely that his was just a one-off invention; rather, it looks like there was some degree of dispute on just when the duty to retreat was applicable.

  7. One of the benefits (??) of the internet is that I see countless examples of, “I know for damn sure that X…” in situations when, actually, it’s Y and not X. Or, where it might be X, but the answer is not at all clear-cut.

    This phenomenon covers all ideological stripes. And, certainly, has existed way before the internet was a gleam in Al Gore’s eye. [jk] But seeing internet posts really brings home how widespread it is.

  8. If there’s not going to be a duty to retreat, there ought to be strict liability wrt to the belief that your life is in danger. A reasonable, but mistaken, belief that your life is in danger should not be a defense if you are able to retreat in complete safety, but choose not to. Unless you’re in your home or business, I suppose.

    1. So how do you know, with complete surety, if you’re able to retreat safely or not? Are you willing to bet your life on it?

      1. “Are you willing to bet your life on it?”

        NO.

        From the article, “…may lawfully kill the assailant, provided he use all the means in his power, …? such as retreating as far as he can, or DISABLING HIS ADVERSARY, without killing him if it be in his power.

        Disabling!! Now that is funny. Cops are gleefully trained to pretty much unload the clip at center mast until all movement has ceased (including gravity and nervous system induced movement). Twitch at your own peril. And no felony required to get Castilled.

    2. “A reasonable, but mistaken, belief that your life is in danger should not be a defense if you are able to retreat in complete safety”

      1. Such a standard, ought not be judged in the clarity of hindsight, but only by what the defendant was actually aware of at the time.

      2. In my opinion, against an assailant armed with a gun, the ability to retreat with safety that is “complete” by any rational standard will be so rare as to not even be worth consideration.

      1. 3. The amount of consideration given escape must be judged in light of the urgency of survival; You can’t spend a great deal of time analyzing your options while threatened with imminent harm.

      2. In the armed self-defense class I took a few years ago, I was taught that the correct standard was to be able to answer yes to this question: “Would a reasonable and prudent person in the same circumstances, knowing what you knew and nothing more, have believed there was an imminent and otherwise unavoidable threat of death or serious bodily injury?”

        This is a high bar, and intentionally so I think.

  9. So if someone threatens to kill me, I have to determine if he really means it, and won’t follow me if I try to get out if the situation, before I defend myself, in a second.

    Sounds like I’m screwed.

    1. Jerry B.: “I think you mean, “Detached reflection cannot be demanded in the presence of an uplifted knife.”

  10. Parsons says that not only is there no requirement to retreat from a threat in order to claim justifiable self-defense, but the threatened party “may pursue his adversary until he has secured himself from all danger.” If I am reading that correctly, Parsons suggests that if someone meant to do me harm, then thinks better of it for one reason or another and makes his escape, I can run that person down ? presumably regardless of for how long it takes ? until the threat is ended. Am I reading that correctly?

    1. That stuck out to me, too.

      I also wonder that if you have a duty to retreat, does that basically mean you can never commit homicide in (self) defense of another, since the harm isn’t to you? Or does the question become whether the threatened person would have been able to retreat? How can a third person even gauge that?

  11. Let us suppose you have an implacable enemy who has a motive for destroying you that is not likely to fade away. On initial confrontation this enemy assaults you extremely violently. You are very lucky to be able to get away, to retreat hastily.

    Suppose the enemy is subsequently arrested, charged, and neither not convicted of anything or punished very lightly. Now what kind of situation are you in? You went by the books and relied upon the remedy of the law. It failed.

    What do now? Well, especially if you are of Sicilian or Russian heritage, there is: “Godfather, I have a favor to ask of you. Give me justice. . .”

  12. I sure hate not being able to edit. Used neither for either and left out a word while typing fast.

  13. Good post. It makes so much sense to give the decision to the jury to make. Common sense, in fact. This is not something we want a bright-line legal rule for, because such a rule would promote deliberate murder. Any bright-line rule can be used for clever planning– how to provoke the fight, or get the other guy to pick up a knife, or something like that. That’s why in Tax there’s a vague out-clause for the IRS where they can get you for transactions with no possible purpose except to reduce taxes. In addition, juries have better moral intuitions than judges, who may have lost their entirely.

    There are many situations where it would be better to let the jury decide, but where we say “question of law” and give it to the judge.

  14. There is a disconnect between the subtitle
    //The stand your ground / duty to retreat debate has been around in the U.S. since the very beginning.//
    which suggests an argument of a generalized duty to retreat and the actual example rule proffered

    //Homicide in a brawl that started as a nonfelonious battery (or perhaps even as a consensual fight) but that turned life-threatening was labeled “excusable,” and was excused only if the defendant couldn’t have reasonably retreated.//
    which is nothing like a generalized duty to retreat, but a specialized application to what seems to be described as fights not expected to be lethal, the key phrase that indicates that here is: \\turned life-threatening\\ so taking the given consensual fight example, what we seem to be comparing is a generalized duty to retreat always with a specialized rule that applies to maybe an honorific fist fight dual where the fighter could admit defeat and tap out, or whip out their knife and ‘win’ the dual.

    one of these is not like the other.

  15. Thus, say that you’re in a bar, and another patron says, “leave, or I’ll kill you,” and flashes a knife (without showing any indication that he’s about to lunge at you).

    So let’s take this to the extreme, since extremes are so much fun.

    A nasty drunk stands up in a bar, shows his gun, and yells “Everyone has 2 minutes to leave except the bartender. I want to drink by myself.” 2 patrons stay, and the drunk pulls his gun out at one of them and aims. Not being drunk both pull their guns out and fire without missing, one to protect himself and the other to prevent harm to another. From what you said, in a duty to retreat state- they’re screwed and guilty because they didn’t retreat when they had the chance.

    Sounds to me like if duty to retreat were an actual duty- bullies would rule over everyone else, unless we all had our own personal policeman following us around to make arrests.

  16. One of the reasons duty-to-retreat laws became unpopular, resulting in the “substantial minority” mentioned, is that there were numerous cases of anti-self-defense district attorneys prosecuting people who had defended themselves in cases, for instance, where the duty was expressed as, “Well, yes, the defendant is 70, and the alleged assailant is 26, but the defendant could have tried to outrun him.”

    Even if the jury finds the defendant was justified, the defendant is out time and legal fees.

  17. This is just from memory, but, IIRC, Florida was originally a common law stand your ground state. Then the state high court up and declared that Florida was, and always had been, duty to retreat. The state stand your ground law was adopted in 2005 to reverse this, and restore the status quo ante.

    Demonstrating the judicial hostility to stand your ground in Florida, the state high court struck back, imposing a burden of proof to prove self defense in 2015. The state legislature enacted a law early this year to undo that, and in July and August judges ruled it was unconstitutional.

    There seems to be a battle going on between the general public and the judiciary on this subject in Florida. I wonder whether that was the case in the founding era, too? Perhaps as partisans in that battle, the judiciary are not actually to be relied upon as an impartial source of information.

  18. I continue to think the common law’s approach reflects wisdom. People are not perfect, and are not always perfectly rational. We get agitated. We get angry and jealous. We get stubborn. We get drunk or high. Even people who are good most of the time do this sometimes.

    The common law’sfundamental duty was to preserve the peace. It is better to let the sober give way to the drunk and to let people live to another day and argue over damages and lesser punishments in court later than have minor altercations lead to people getting killed.

    Bad people, the people in the wrong, are nonetheless our neighbors. They are people like us. We too could be agitated, jealous, drunk or high someday.

    We see what happens when the police are too trigger-happy, when minor altercations or even mere misunderstandings lead to unnecessary deaths. Is this Justice?

    The common law comes from a world before there were no police, when we, the people, are the police. The peace is in our hands.

    Just as we would wish the police to deal with drunks, disturbed people, and minor criminals with some measure of paternalism and charity, just as we would want this done to us if we were drunk or disturbed, so we ought to do to others. The duty to retreat is merely a form of the Golden Rule. It requires us to see ourselves as potentially in the shoes of the very people who are wronging us. It requires us to behave like adults. We too can be imperfect sometimes. And there but for the grace of God go we.

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