The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The so-called "duty to retreat" has long been in the news. Today, 12 states recognize such a duty—which is to say, outlaw deadly force in self-defense (even against threat of death or serious bodily injury) if one could safely avoid the necessity of self-defense by retreating—but until recent decades there used to be more.
But it turns out that six of the duty-to-retreat states (Connecticut, Delaware, Hawaii, Maine, New Jersey, and Nebraska) also have a much less talked-about "duty to comply with negative demands." For instance, under Connecticut law, one can generally use deadly force when one "reasonably believes that [the target] is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm" (including sexual assault). But:
a person is not justified in using deadly physical force upon another person
if he or she knows that he or she can avoid the necessity of using such force
with complete safety
 by retreating, except that the actor shall not be required to retreat … [from] his or her dwelling … or place of work … or
 by complying with a demand that he or she abstain from performing an act which he or she is not obliged to perform.
Other statutes are similar, though the Maine and New Jersey statutes don't exclude "place of work" from the duty to retreat.
The logic of the duty to retreat and the duty to comply is similar: Both stem from an interpretation of the requirement that self-defense be "necess[ary]":
- If I know I "can avoid the necessity of using such force with complete safety by retreating," then deadly force isn't really necessary.
- Likewise if I know I can avoid the necessity of using such force with complete safety by complying with a demand to abstain from some act—perhaps a demand that I stop burning a flag, or that I stop playing my music too loudly, or even that I stop kissing the threatener's ex-girlfriend.
Indeed, deadly force isn't strictly necessary under this definition even when the person is faced with a demand to engage in an act rather than abstain from one. Let's say that someone tells me "Give me your wallet or I'll seriously injure you," and I know that (1) if I give over the wallet, I won't be seriously injured, and (2) if I don't, then I will be seriously injured. (It's rare to have such confidence, but let's assume this — perhaps because I know the attacker and his habits — just as duty-to-retreat law assumes that one can sometimes "know" that one can retreat with "complete safety.") Under the "necessity" definition we're discussing, here too deadly force isn't really necessary, since I can avoid the need to use deadly force by handing over the wallet.
Or say that someone credibly tells me "Beg for your life or I'll kill you," and instead of begging I shoot the person. Again, under the "necessity" definition we're discussing, deadly force wouldn't really be necessary, since I could have avoided the need to use deadly force by begging. But again, even under the Connecticut rule, I could refuse to beg without losing my right to use lethal self-defense, since this demand is a demand to do something rather than to abstain from something.
Likewise if someone credibly tells me "Say you renounce your apostasy or I'll kill you" or "reveal this-and-such secret to me or I'll kill you" or "apologize or I'll kill you." In all these cases, using deadly force wouldn't really be necessary under the definition of necessity that's used to justify the duty to retreat. But the Connecticut rule wouldn't apply here, because it's a demand to act and not to refrain, so I'd be free to use deadly force in self-defense without complying with the demand. (Note that this theory wouldn't go so far as, say, a duty to comply with a demand for sex; since you're entitled to use deadly force when necessary to prevent rape, you can't comply with this demand "with complete safety," since such safety includes safety from rape.)
Yet of the 12 states that recognize a duty to retreat, only 6 recognize a duty to comply with negative demands (demands to abstain). And none recognizes a duty to comply with positive demands (demands to act).
So let me ask those readers who support one of these duties: Would you say that:
- You only support only the duty to retreat, and not a duty to comply with negative demands (or with positive demands). If so, why do you distinguish the two, given that both stem from the idea that people shouldn't use deadly force unless it's really necessary?
- You support the duty to retreat and a duty to comply with negative demands, but not a duty to comply with positive demands. Again, why, given that both stem from the idea that people shouldn't use deadly force unless it's really necessary?
- You support the duty to comply with negative demands, but not a duty to comply with positive demands, but not the duty to retreat. That turns out to be the rule in New Hampshire (possibly as a result of legislative oversight or inertia when the duty to retreat was essentially repealed in 2011 but the duty to comply with negative demands was untouched). Again, why?
- You support the duty to retreat, the duty to comply with negative demands, and the duty to comply with positive demands. How far do you take these duties?
I don't think these questions are unanswerable: For instance, one possible answer would be something like this:
"Could avoid the necessity of using deadly force" means "could avoid the necessity of using deadly force without undue sacrifice of your other rights." And having to sacrifice the right to be in some place temporarily isn't undue sacrifice, but having to sacrifice the right not to beg or not to apologize or to keep your money is undue sacrifice.
(But then why exactly should one so conclude, and where would one draw the line?) In any event, I'd love to hear your own answers.