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Volokh Conspiracy

Duty to retreat before using deadly force against would-be killer—but not against would-be robber

|The Volokh Conspiracy |


From N.Y. Penal Code § 35.15:

1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person ….

2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:

(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is:

(i) in his or her dwelling and not the initial aggressor; or

(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter's direction, acting pursuant to section 35.30; or

(b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery ….

So wait: If I read this right, you have a duty to retreat (if you can do so "with complete personal safety") before using deadly force to protect against threat of death (subsection 2(a)). But there is no such duty to retreat before using deadly force to protect against robbery (subsection 2(b))—even if you can retreat with perfect safety, without giving up the goods that the robber wants to steal from your person, you can kill the robber to prevent the robbery. (See also People v. McTiernan (N.Y. Super. Ct. App. Div. 2014), which seems to echo this.)

A mighty odd combination, it seems to me—or is there some other statute or some caselaw that precludes this, notwithstanding the McTiernan decision?

Eugene Volokh is the Gary T. Schwartz Distinguished Professor of Law at UCLA and a Visiting Fellow (Senior Fellow starting May 2024) at the Hoover Institution (Stanford). Naturally, his posts here (like the opinions of the other bloggers) are his own, and not endorsed by any educational institution.