The Volokh Conspiracy

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An Interesting Duty to Retreat (or Duty to Avoid Trouble?) Case, from a Century Ago

Self-defense against racist rioters.


Apropos the stand-your-ground vs. duty-to-retreat debate, I thought I'd pass along an interesting case that illustrates how duty to retreat might work. Recall that, under a duty to retreat, if

  1. you are threatened with death, serious bodily injury, or some other serious crime, and
  2. you can avoid the danger by retreating with complete safety
  3. from some place other than your home (even though you're legally present in that place),
  4. but you don't retreat, and instead use deadly force to defend yourself,

then you lose your legal right to use deadly force in self-defense. The theory behind that is that you should have avoided the danger instead of using deadly force.

Under the stand your ground approach, you don't lose your legal right to use deadly force in self-defense. The theory is that you shouldn't have to surrender your right to remain where you lawfully are just because a criminal is threatening you.

Let me also add one more twist: If you have a duty to retreat, you generally have a duty to stay retreated, at least for a modest amount of time—you can't just leave the place and then come right back, knowing that the person threatening you is still around (or else what would be the point of the duty?). This is sometimes articulated as a duty not to go where your "presence would provoke trouble." But it's linked to the duty to retreat, since the theory is that you should avoid trouble by retreating, and then not provoke further trouble by returning.

Here then is the case, Laney v. U.S. (D.C. Ct. App. 1923); it might seem like a creature of its own time, but it continues to be cited as good law today, and its result is consistent with the modern understanding of the duty to retreat. What do you think should be the right legal analysis in a case such as this? (I learned about it from Prof. Margaret Raymond's Looking for Trouble: Framing and the Dignitary Interest in the Law of Self-Defense, which I think is generally an excellent analysis of the stand-your-ground/duty-to-retreat question.)

This appeal is from a verdict and judgment of the Supreme Court of the District of Columbia, adjudging appellant, defendant below, guilty of the crime of manslaughter. The indictment charged the defendant with the crime of murder in the first degree, growing out of the killing of one Kenneth Crall, during a race riot in Washington on July 21, 1919….

Defendant [William Laney] testified: "On the night of the 21st of July, 1919, I went to the theater with Mattie Burke, and came back and went up on Seventh street at the request of Teresa Dobbins, to get Florence and Garfield Wood. On my return to 617 Massachusetts avenue, as I got to the corner where the Home Savings Bank is located, a large crowd that was there started to yelling 'Catch the nigger' and 'Kill the nigger' and started to chase me. I ran ahead of them down Massachusetts avenue. When I got near to 617 Massachusetts avenue, I pulled out my gun and the crowd stopped chasing me. I went into the back yard ….

"I then put the gun in my pocket and went to the front again, intending to go back to my place of employment. The mob was attacking a house across the street, and were coming both ways on Massachusetts avenue, from the direction of Sixth and from the direction of Seventh street…. While I was in the areaway between 617 and 619, the mob came across from the south side of the street, firing and hollering 'Let's kill the nigger.' The mob was firing at me, and I shot in the direction towards Seventh street. I fired to protect my life…." [The shots killed Crall, who was apparently a member of the mob.—EV]

[I]n our opinion, viewing the evidence in the most favorable aspect, self-defense does not enter into the case.

It is clearly apparent from [certain] testimony that, when defendant escaped from the mob into the back yard …, he was in a place of comparative safety, from which, if he desired to go home, he could have gone by the back way, as he subsequently did. The mob had turned its attention to a house on the opposite side of the street.

According to Laney's testimony, there was shooting going on in the street. His appearance on the street at that juncture could mean nothing but trouble for him. Hence, when he … stepped out into the areaway, he had every reason to believe that his presence there would provoke trouble. We think his conduct in … going into the areaway was such as to deprive him of any right to invoke the plea of self-defense….

[W]hether or not self-defense can be invoked under the evidence adduced is a question of law for the court to determine. If the facts, in the judgment of the court, are not such as to admit of this defense, the issue should not be left to the mere speculation of the jury.

It is a well-settled rule that, before a person can avail himself of the plea of self-defense against the charge of homicide, he must do everything in his power, consistent with his safety, to avoid the danger and avoid the necessity of taking life. If one has reason to believe that he will be attacked, in a manner which threatens him with bodily injury, he must avoid the attack if it is possible to do so, and the right of self-defense does not arise until he has done everything in his power to prevent its necessity. In other words, no necessity for killing an assailant can exist, so long as there is a safe way open to escape the conflict….

In the present case the defendant was neither acting in defense of his property nor attempting to avoid an affray. His going out into the areaway leaves but one inference to be drawn, namely, that he knew his presence there would cause trouble.

Nor was he in a place where, under the circumstances, he had a right to be. If conditions on the street had been normal, he would have had the right to elect that way to go home; but he had no right to go there with another way equally available, if by so doing it would invite an affray, which would almost inevitably result in the taking of life.

Defendant's going from the back yard into the areaway was a voluntary act, and no principle of the law of self-defense is better established than that: "Where a person voluntarily participates in a contest or mutual combat for purposes other than protection, he cannot justify or excuse the killing of his adversary in the course of such conflict on the ground of self-defense." …

Laney was represented, it turns out, by "William Lepre Houston, who was
considered one of Washington, D.C.'s finest African-American attorneys," and who was the father of Charles Hamilton Houston, widely regarded as one of the main architects of the litigation that led to Brown v. Bd. of Ed.