The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


One if "duty to retreat," two if "stand your ground"


I blogged in November about Commonwealth v. Selfridge (Mass. 1806), sometimes described as the first American case to deal extensively with self-defense—and an early example of the American debate about whether there should be a general duty to retreat before using self-defense. Chief Justice Theophilus Parsons' charged 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.

But Justice Isaac Parker charged 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 assured 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. 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. But this is not the distinction between Parsons' and Parker's charges, because both seemed to be described justifiable homicide. So the American debate about the duty to retreat is old indeed.

But today I learned something new, courtesy of a Massachusetts high court opinion released today: The first juror selected was Paul Revere (yes, according to today's Massachusetts opinion, that Paul Revere). The verdict was Not Guilty, though, being a general verdict, it doesn't inform us of the jurors' views on the duty to retreat.