Self-Defense

Duty to Retreat and Duty to Comply with Demands

If you support the duty to retreat (before using deadly force), what do you think of the duty to "comply[] with a demand ... [to] abstain from performing an act"?

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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

[1] by retreating, except that the actor shall not be required to retreat … [from] his or her dwelling … or place of work …  or

[2] 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:

  1. 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?
  2. 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?
  3. 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?
  4. 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.

NEXT: Supreme Court Addresses Life Sentences for Juveniles and Exhaustion for Social Security Claimants' Appointment Clause Challenges

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  1. “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”

    complete safety? How many people get shot after complying ?

    1. Rule No. 1 A gun pointed at you has already violated “complete safety” I’ll take my chances with a jury…. If they find the body 🙂

  2. The duty to retreat is fake. It exists only to save the life of a lawyer client, the vicious career criminal. The criminal generates massive lawyer employment. The victim generates nothing, and may rot.

    I propose another duty. The duty to kill. All law abiding citizens should conceal carry. If they fail to fire on a violent criminal, they get a $100 fine.

    Mandatory sentencing guidelines dropped an outrageous crime rate by 40%. Result? Massive lawyer unemployment. Result? Justice “hang ‘Em High” scumbag Scalia went on a jihad to cancel the guidelines across the board. He included state guidelines whic were none of his business. Result? Tiny decarcerations, and massive surges in murder of young black men. Result? Full lawyer employment again.

    When you kill a criminal, you kill a good lawyer job.

    1. To make the crime victim lucrative for the lawyer, end the immunity of discretion.

      Judge issues a written order to husband to stay away from wife. Husband shows up. Police read the judge order. They refuse to arrest the husband. Husband kills wife. Supreme Court pro-criminal, scumbags: no tort liability of the prosecutor, nor of its agents, the police. These pro-criminal scumbags violated a court order, negligence per se. No liability.

      That is why self help is the sole effective remedy for crime victims.

      1. The above duties require the mind reading of an impulsive, most often intoxicated criminal, perhaps having a bad day. It also requires the forecasting of the future.

        These are supernatural powers, and violate the Establishment Clause.

  3. Do the laws on duty to retreat really use the language “complete safety”? If so I would argue that this language makes the duty to retreat law a nullity, because complete safety doesn’t exist, it can not exist, it is an impossibility. It doesn’t exist anywhere or at any time, under any circumstances.

    Even in your own house, in your own living room, sitting in your own EZ-chair, with no one else present you do not have complete safety.

    1. That is what I thought as well. Further, the negative/positive distinction is pretty dumb. “Give me your wallet” is positive but “I demand you refrain from keeping your wallet” is negative but they’re the same ask.

      If we’re going to defund the cops, which I would be all for if it came with no more war on drug smuggling/use, then we should see broader self-defense rights. As in “anything you subjectively believe is necessary to defend your person, property, and the persons or property of family and friends in your general vicinity” is immune from criminal/civil sanction. Basically, the old west, where violence was much lower and the people were armed.

      1. I’d be curious to know how the prosecutor can ever prove what someone subjectively believed. I also wonder what basis you have for saying that in the “old west”, violence was “much lower”.

        1. The intent element of a crime violates the Establishment Clause. Mind reading is a supernatural power, attributed to God by the Church, in accordance with its faith. The criminal codes of the United States are unconstitutional.

          It came from Paragraph 1857 of the catechism. A mortal sin is a violation of the Ten Commandments.

          1857 For a sin to be mortal, three conditions must together be met: “Mortal sin is sin whose object is grave matter and which is also committed with full knowledge and deliberate consent.”

        2. ” I also wonder what basis you have for saying that in the “old west”, violence was “much lower”.

          Many of the US Marshals kept diaries and these have been handed down and sometimes been printed. These were day-to-day logs of crimes (albeit reported) and fairly accurate.

          1. The homicide rate in the Old West was 1/100000. Today it is over 20/100000, and soaring under Democrat administrations. Why? Crimes generate lawyer jobs.

            1. Do you have a source for that? First google result shows 165 per 100,000

              https://www.google.com/search?q=homicide+rate+old+west

              1. That rate was for some towns, mostly Democrat jurisdictions.

      2. “As in “anything you subjectively believe is necessary to defend your person, property, and the persons or property of family and friends in your general vicinity” is immune from criminal/civil sanction. ”

        Ah, Qualified Immunity for average citizens. I can sort of see that. Of course. I mean, if it isn’t unequivocally illegal, we shouldn’t be at risk of depravation of property, liberty or life, right? Why should government employees get all the perks?

    2. The point of the “complete safety” language is that it makes it something that can be taken to court and argued

      At huge financial and emotional cost to the person who engaged in self defense

      1. And even more cost to the person who is now dead…

        1. I’d say that’s the cost of threatening somebody, and fully within their power to avoid.

        2. Don’t threaten people, and no one will have to shoot you

          What is it with you monsters on the Left, always siding with criminals against the people they want to victimize?

    3. Slyfield fights the hypothetical. As always in such matches, the hypothetical wins.

      1. “Slyfield fights the hypothetical.”

        What hypothetical?

      2. I mentioned no hypothetical. There is nothing hypothetical about complete safety being an impossibility.

        1. If the legislature didn’t mean “complete” why did they add that to the law?

    4. I think there are rare circumstances where one can retreat in complete safety.

      For example. Imagine a person with a knife is threatening to kill you, but he is in wheelchair and you know him to be a paraplegic. You could probably easily outrun him, or climb some stairs to get to safety.

      More common situations might involve cars or strong doors.

      If someone on foot is coming at you with a knife and making threats from 50 feet away, and you can easily get into your vehicle and drive to safety, the duty to retreat might apply in states with where it exists.

      When it comes to attackers armed with guns, situations where one could retreat in complete safety would be much rarer.

      1. I disagree. I will state again, categorically, that complete safety can not exist in any circumstance, it is an impossibility.

        Even the smallest imaginable risk means safety is incomplete.

        Sitting alone in an isolated space still lacks complete safety.

        1. You’re probably right that literally, there is no such thing as complete safety, but in practice, it means what the jury (and appellate judges) think it means.

          It came up in a self-defense case several years ago. An off duty cop was driving with his family, and some local blew his top and started road raging when the cop accidentally cut him off. The cop pulled over, and so did the local, who then got out of his car and started charging the 150 feet towards the cop. (Even after the cop showed his gun and badge!)

          Witnesses agreed on what happened, the only question was could the cop safely get back in his van and lock the doors/drive away before the local reached him. The cop said he didn’t feel safe doing so, and the jury acquitted.

    5. thereload.com/armed-civilian-saves-walmart-security-guard/

      >>>
      The civilian, who is licensed to carry a gun, was shopping at a Walmart in Beech Grove, Ind., when he noticed a scuffle between the guard and the suspect. The guard tried to apprehend the suspect for shoplifting but could not restrain him. The guard then called police to assist, but before they could arrive, the suspect drew a gun and pointed it at him.

      That’s when the good Samaritan drew his own gun and fired three shots at the suspect, which caused him to turn away from the security guard and flee the area. The suspect didn’t get far: Another bystander tackled him as he tried to escape.
      <<<

      So, who here thinks the good Samaritan should have just let the bad guy shoot the security guard?

      You do not have the right to steal. You do not have the right to beat up, attack, or bully other people. You do not have the right to fight when you're being legitimately arrested.

      And if anything bad happens to you while you're doing any of those things, you deserve it.

      A belief in individual liberty requires a belief that we are all entitled to keep what is ours, and no one has the right to take it from us. If you reject that, you're just another thug, and no sophistry will change that reality

      1. <<<<
        You do not have the right to steal. You do not have the right to beat up, attack, or bully other people. You do not have the right to fight when you're being legitimately arrested.
        <<<<

        But you also aren't giving up your right to breath.
        BTW, lets be clear, that any physical attack that involves striking at or near the head or throwing someone so that they might strike their head is a deadly threat.
        In the case you mention, assuming the facts as presented, there was an obvious threat of physical violence (pulling, and pointing a gun at the security guard) and a real possibility that the guard was about to die.
        Still don't see how he missed with all 3 bullets… Maybe nerves…

  4. I support the duty to retreat, the duty to comply with negative demands, and the duty to comply with positive demands.

    As for how far to take these duties, it depends on what’s on the other side of the scales. Nothing is more valuable than a human life, except another human life. So there is no other limit to the duty to comply, as an alternative to the use of deadly force.

    If you’re contemplating non-deadly force, that would be justified to avoid having to comply with demands that cause any kind of serious bodily harm to yourself or another. And so on.

    But, for example, a demand that you beg for your life is so trivial that I would have zero understanding for someone who would kill a person rather than comply. Begging doesn’t harm you in any way.

    1. So, here’s a negative demand:

      Stop trying to prevent me from raping that girl.

      After all “[2] by complying with a demand that he or she abstain from performing an act which he or she is not obliged to perform.”

      You’re not legally “obligated” to stop someone from raping a child. So I guess you’re not allowed to do it.

      So, I guess this means I can go to a protest and threaten the lives of everyone protesting? “Shut up or I’ll kill you!”

      Now you have to end your protest, quietly, or else I can kill you, and if you try to stop me from killing you, YOU are the criminal.

      That’s what you’re supporting.

      Want to rethink that?

      1. So you just completely missed the part where I said “arm to yourself or another”?

        1. You said that you thought non-deadly force could be justified to prevent “serious bodily harm to yourself or another”. What about using deadly force to prevent a rape that isn’t itself likely to cause serious bodily harm? It’s hard for me to imagine any civilized legal or moral system that wouldn’t protect (and support) such a thing, but what you’re saying would at least strongly suggest that you don’t.

          1. Noscitur, he just said he did not support that, and you insist on calling him out anyway, and accusing him as if he did support it. You seem unable to pass up a chance for gratuitous aggression.

            Your response points up a real problem with duty to retreat. It is the culture of honor thing. Fools among that culture’s adherents—it is a culture which attracts fools like yellow jackets to a picnic—interpret a duty to guard honor as unlimited license to practice aggression. When such people suppose honor has been challenged, they never acknowledge any response but aggression as legitimate. They expect society to tailor norms accordingly.

            The survival of that primitive culture, and it’s many adherents in this nation, create a host of problems, many of them having to do with the nation’s troubled experience managing guns.

            1. “Noscitur, he just said he did not support that,”

              He said he supported killing to avoid unnecessary serious bodily harm. He didn’t say he supported killing to avoid something terrible that doesn’t cause serious bodily harm, as in the example.

        2. Nope, that part is irrelevant. Because you started out with this

          “I support the duty to retreat, the duty to comply with negative demands, and the duty to comply with positive demands.”

          I am not going to use non-deadly force when I can use deadly force. If I use non-deadly force, you can attack me, because you’re not dead.

          If you’re dead, I’m safe. if you’re not dead, I’m not safe.

          When you decided to attack, and put me or someone else at risk of great bodily injury or death (that being what’s required to make the deadly self defense legal) you forfeit any right to life, or respect for your life.

          It’s really simple and easy: If you don’t want to die, don’t attack people who aren’t threatening you or someone else.

    2. The value of a criminal life is negative. When you kill a criminal, all are better off, including those closest, the family. That includes George Floyd, a career criminal. The woke settlement was ridiculous.

    3. “But, for example, a demand that you beg for your life is so trivial that I would have zero understanding for someone who would kill a person rather than comply. Begging doesn’t harm you in any way.”

      Hard to believe that that’s even a crime, amiright?

      1. Sure, complying harms you. It brings the moment the creep says, “Great, now I’m going to kill you anyway.” that much closer.

        1. Bellmore fights the hypothetical.

          1. Here’s the hypothetical: “But, for example, a demand that you beg for your life is so trivial that I would have zero understanding for someone who would kill a person rather than comply. Begging doesn’t harm you in any way.”

            I didn’t fight the hypothetical, the hypothetical didn’t have as one of its premises that you’d be left alone if you DID beg for your life.

            The fact is, that if someone is willing to threaten to kill you if you don’t beg for your life, then, rationally, you should assume they’re willing to kill you after you’ve done so.

            You should generally assume that anybody who threatens your life is liable to carry out the threat regardless of what you do, outside of circumstances where threatening your life isn’t evidence of depraved indifference or actual murderous intent.

            So, yeah, if you’re holding a knife to somebody’s throat, and a passerby points a gun at you and threatens to shoot you if you don’t drop it, yeah, compliance is probably reasonable, because their threat isn’t proof of their malign intent. Outside of circumstances like that?

            Assume somebody who threatens your life will take it.

    4. If you’re contemplating non-deadly force, that would be justified to avoid having to comply with demands that cause any kind of serious bodily harm to yourself or another.

      So, if a person were demanding at knifepoint that your 12-year-old son perform fellatio on him — which will cause the boy no bodily harm, of course — you have no right to defend him with force?

      a demand that you beg for your life is so trivial

      Most people regard their dignity and integrity as valuable. I do not wish to beg for my life, have sex against my will, eat substances that are not food, deny my political or theological beliefs, or flee my home; and I am not unusual in that regard.
      The fact that you claim not to mind is an issue for you and your mental-health specialist.

      1. Malvolio fights the hypothetical, and invokes the culture of honor.

        1. Wrong

          He addressed the hypothetical, and pointed out why it’s utter garbage

          Looks like your position is so weak you’re unwilling to argue it honestly

    5. “Begging doesn’t harm you in any way.”

      Ok, then start begging, just so we all may verify it costs you nothing.

      1. If I do it right, it might actually gain me something…

    6. re: “Nothing is more valuable than a human life”

      Taken at face value, that statement is absurd. It says that no one should ever take any job with the slightest risk. No one, for example, would ever become a coal miner. After all, your human life is more valuable than the money you will make on the job. Taken to its logical conclusion, you also should refuse even much less risky jobs including, well, anything that involves commuting, driving, typing, going outdoors, staying indoors, etc.

      The fact is that we value human life all the time. Each of us does it every time we decide to do something with the slightest risk (and everything has risk). We regularly place higher value on fun, thrill-seeking, even convenience than we do on incremental risk to human life.

      Once you accept that the value of human life is not infinite, you may be able to start understanding that others have different value systems than you do. They may, for example, place a higher value on honor or dignity than on their own lives. You may not understand why someone might accept death rather than beg but history is full of such people. And many of them were instrumental in creating the way of life you enjoy now.

      1. I was going to write pretty much exactly this. Thank you for saving me the effort.

      2. Rossami extols the culture of honor.

        1. Not so much “extol” as “acknowledge that it exists”. Do you deny its existence?

        2. So, Stephen, what you’re saying is that you have no honor?

          That’s not something I’d be bragging about

        3. Why is honor a bad thing?

          I have seen it invoked by many authors for a lot of decisions … most of them left wing. How does “The Crucible End?” Why doesn’t the main character sign a document that would spare his life if he admits to witchcraft? “Because it is my name” He would rather die.

          People have reasons for living other than life itself. People have desires to be remembered, that is why people go to great lengths to do good even if the benefits are long gone. It is why people raise children.

          What is wrong with being honorable? What, is nihilism our law now? What a sad and pathetic state of affairs that is.

        4. Lathrop extols the culture of vile subservience.

        5. Everyone dies. Most classical philosophies of life (can’t say much about the last 150 years here, it seems …. mixed) talk about both
          1) Life a life worth living
          2) Die a death worth dying.
          A lot of choice (in the libertarian) sense on how to achieve those standards.

      3. Great comment, especially the last paragraph. It is true.

  5. Okay

    The Duty to Retreat would seem to be without controversy since presumably by taking such an action the potential victim can prevent harm to him/herself with certainty.

    However the Duty to Comply does not afford such relief. One can reasonable assume that being under threat of violence that even if one complies with the positive or negative request one is not free from being a victim of violence. So the Duty to Comply is a different situation and one should be able to use non-deadly or even deadly force in that situation.

    For example, if a person is accosted and a demand is made to turn over one’s wallet or face harm, it is reasonable for the victim to assume that even if she/he complies the perpetrator might still inflict harm. So in that situation force by the victim is justified.

    Apples and oranges Professor, apples and oranges.

    1. Sidney R. Finkel: Apples and oranges are actually very similar, and we compare them all the time. (E.g., “I want some fruit; would it better to buy an apple or an orange?” “What would go better in this smoothie: An apple or an orange?”) Likewise with the duty to retreat and the duty to comply, in the view of 1/2 of the duty to retreat states.

      But I appreciate your rationale for the six other states’ position: Perhaps if you can flee someone who you know doesn’t have a gun (the duty to retreat is generally not seen as applying when the person threatening you is armed with a gun, precisely because then he can shoot you in the back), the “complete safety” proviso will at least sometimes be satisfied. But perhaps if the person is demanding that you do or not do something, and your plan is to stay rather than retreat, it would be so hard for the prosecution to prove the “complete safety” element that it’s better to just foreclose it as a matter of law. Am I correctly capturing your theory?

      1. “the “complete safety” proviso will at least sometimes be satisfied.”

        No it will never be satisfied because it is an impossibility. You don’t have “complete safety” relaxing alone in your own home.

      2. Point taken on the Apples/Oranges issue, but you know it’s so satisfying to use a trite, overworked expression.

        Yes, I think you are correct in your interpretation of my position.
        Consider the following situation. An individual is in their car, the engine running and no obstruction to prevent that person from moving forward down the street. A person approaches the car, displays a gun holstered on the side and demands the individual’s wallet. The potential victim has a gun in their right hand resting on the seat.

        In this case the individual should not have the moral or legal right to shoot the would be assailant. The individual can simply drive away, and when safe report the incident to the police. The principle in law and ethics is that damages should be mitigated even when a person is in the right.

        But assume the same situation except the individual in the car cannot leave, the car is temporarily blocked. The would be assailant approaches the car, shows he has a gun and demands money or he will draw the gun and shoot. He says he will leave the potential victim unharmed if he just gets the wallet. In this situation the individual in the car should have the moral and legal right to shoot the attacker. The victim has no assurance that the attacker will keep his end of the bargain, and given that the attacker is an armed criminal it is likely he will take the money and still shoot the victim.

        So if the victim were charged in a court of law in the second example, the fact that the victim could not avoid the possibility of violence against him should be enough to justify the victim’s attack on the assailant. In the first situation the potential victim is in charge and in control and thus the onus is on him to mitigate damages. In the second situation the victim is not in control and thus should have no such obligation.

        I believe Mick Dundee illustrated some of this.
        https://www.youtube.com/watch?v=WWl8EbNN8NM

        1. You have a greatly exaggerated estimate of human ability to withstand the amount of acceleration required to safely get away from a handgun shot, when starting from zero.

      3. “What would go better in this smoothie: An apple or an orange?”

        Orange, but only if an Orange Julius counts as a smoothie.

    2. “The Duty to Retreat would seem to be without controversy since presumably by taking such an action the potential victim can prevent harm to him/herself with certainty.”

      Wrong.

      1: There is no such thing as “certainty”

      2: It harms me to give in to a bully or thug. The act of retreating is, in and of itself, a harm

      3: The world is a better place when those who would be thugs live in fear that their thugishness will lead to harm for them. Passing laws to protect them from harm is morally wrong

      4: I have the right, but not the duty, to chose to protect others from criminal assault (for an obvious example: stopping someone from raping a child). A “duty to retreat” makes that more difficult

      5: The streets and public places should belong to the law abiding, not the criminal. If the criminal is allowed to stay, and I’m forced to retreat, you are making the streets the property of the criminal.

      Which is evil

      1. It is lawyer rent seeking, to preserve clients.

      2. “There is no such thing as “certainty””

        I am an armored car driver, setting in the driver’s seat idling while my partner is inside the bank, with all the armored doors locker per protocol. My girlfriend’s crazed ex appears at the window with a boxcutter shouting ‘come out here so I can cut you’. I can just wait there inside the truck while the police respond. I can drive off. If the police take an hour to respond and the crazed ex pulls out a set of lock picks to open the door, I have a shotgun handy.

        Should I be able to use the pistol port under the window to shoot the crazed ex?

        1. In that scenario, you don’t have to “retreat” because you’re in no danger in the first place. You don’t have the right to shoot the crazed ex even in ‘stand your ground’ states.

          Sorry. It’s an interesting hypothetical but it’s going to need some rework to make the point I think you want.

          1. Well, the truck could stall, his lockpicks could work, and my shotgun could misfire 🙂

        2. In general, you aren’t even in the case there is no duty to retreat. The standard for self defense is usually paraphrased as something like “Reasonable belief of imminent threat of grievous bodily harm.” That belief has standards. In the situation you outline, the assailant possesses a tool which allows him to inflict grievous bodily harm, has no ability to carry out the threat. Other such examples are someone with a knife screaming that they are going to kill you from 100 yards away versus 30 feet away. You generally can’t shoot them when they’re 100 yards away, you absolutely can shoot them if they are 30 feet away, if you’re fast enough to do it before you’re dead.

      3. Greg J loves him some culture of honor. Thinks it is indispensable for society. Ignores examples to the contrary.

    3. “The Duty to Retreat would seem to be without controversy since presumably by taking such an action the potential victim can prevent harm to him/herself with certainty.”

      No. Such certainty is an impossibility.

  6. “Or say that someone credibly tells me “Beg for your life or I’ll kill you,” and instead of begging I shoot the person.”

    There’s a logical problem here. The person would have to credibly say something like, “Beg for your life or I’ll kill you, and I won’t kill you if you do beg for your life.”

    And it’s hard to see how such a statement can ever be credible.

    I mean, he’s either lying about being willing to kill you, or he really is willing to kill you, in which case his statements about his future intentions may not be reliable. Either way, it’s hard to see how the statement can ever be credible.

    1. That’s not a logical problem, but a factual challenge to the hypo. (Which rather misses the point of how lawyers use hypos.)

      1. I take it the argument is that it’s so rare to find a situation where the defendant really knows that he can avoid the threat with complete safety — and the prosecutor can prove such knowledge beyond a reasonable doubt to a reasonable jury — that it’s better to just categorically foreclose such prosecutions.

        1. That’s what irritates me about many of these commenters: Some of these people are (I understand) good enough lawyers to say what you said, but instead they just produce these sloppy and inflammatory straw men.

        2. I will argue that it’s impossible to find a situation where the defendant really knows that he can avoid a threat with complete safety.

          The reason it is impossible is simple. Complete safety is in and of itself an impossibility.

          1. “I will argue that it’s impossible to find a situation where the defendant really knows that he can avoid a threat with complete safety.”

            Generally it’s not hard to imagine a situation where someone can retreat with effectively complete safety. It’s much harder to imagine a situation where someone infer confer complete safety by complying with a threat without relying on the good faith of the person making the threat.

            1. “effectively complete safety”

              My understanding is that the law says “complete safety” not “effectively complete safety”. A .000000001 chance of injury is still less than “complete safety”.

        3. This is correct. I was not fighting the hypo, simply using the hypo to show that this situation is unlikely to arise.

        4. Somewhat. The very fact that the the threat was made in the first place establishes depraved indifference to human life, rendering any promise to refrain from harming you if you comply untrustworthy.

      2. “That’s not a logical problem, but a factual challenge to the hypo…”

        For the hypo to work it has to preclude the attacker killing the victim notwithstanding the begging.

    2. From movie Emperors new groove:
      Yzma: [trapped in closet] Alright! I’ve had enough! Tell us where the talking llama is and we’ll burn your house to the ground.
      Kronk: Um, don’t you mean ‘or’?
      Yzma: [irritated] Tell us where the talking llama is OR we will burn your house to the ground.
      Chaca: Well, which one? Both seem like a pretty crucial conjunction.

      In real life, deliberating the details of a demand threat might not go so well as for the clever protagonist in the film.
      The guy holding over you the use of lethal force is not one whom you may safely trust; it is why he has resorted to the threat of force.

  7. I read over these four options and having a hard enough time choosing one now. When I am with the computer-and-coffee phase of my morning in perfect quiet.

    How would I choose one in the middle of a crisis, like a gang smashing in the windows to get in (maybe not realizing I am there because my car is in the shop). Thinking about that is my peak sympathy for the guys who say “if you think life is sacred then don’t break into my house.”

    On the other end of the spectrum I met a gun hobbyist from Canada. He owns lots of interesting weapons. From his description the laws there would make most of the people here heads explode. I wouldn’t go as far as they do, but their death rate from gun violence is a tiny fraction of what we endure here.

    And the end of the day I just don’t see the solution as picking options 1-4 as stated here. I would prefer gun ownership have the requirement of a standard of character of the owner. When the 2nd was drafted (I expect I will get blasted for this) the standard was “well regulated milita” which today exists in the form of the National Guard. Today is much more complicated than then, but until you get guns out of the hands of the mentally unfit, all these codified Rules of Engagement really don’t amount to much.

    1. Orbital Mechanic: I appreciate your argument, but — just to be precise — note that the duty to retreat doesn’t apply when you’re threatened in your house.

    2. ‘Blast’ 1 – every man capable of carrying a gun was the states’ (and earlier colonies) militia. It’s a far cry from the modern federal army’s subsidiary of the NG. Switzerland has a more federalized and formal model, but its mandatory service originated from the same idea.

      ‘Blast’ 2: (fixing it for you) . . . until you enforce the existing laws to keep and get guns out of the hands of the mentally unfit, all these codified Rules of Engagement really don’t amount to much. One problem seems to be abject failure to enforce existing laws; almost like enforcement was never intended.

    3. ” I wouldn’t go as far as they do, but their death rate from gun violence is a tiny fraction of what we endure here.”

      Different population, different culture.

      Most Canadians live within 100 miles of the US border — compare the gun violence within 100 miles of the Canadian border and I suspect you will see a somewhat similar gun violence rate — with Chicago being the exception.

      1. Oh, I expect Detroit is a bit of an exception, too. 😉

    4. ” When the 2nd was drafted (I expect I will get blasted for this) the standard was “well regulated milita” which today exists in the form of the National Guard.”

      You might consider this “blasting”, but I’d point out that, while the militia is to be “well regulated”, (And we could discuss what that meant.) it is the People to whom the right is guaranteed.

      So the actual constitutional standard is, “Are you a member of the People?”

      1. The NG isn’t the state militias. The states are free to define their state militias however they desire as long as they meet the minimum standards set by the federal government. So state gun laws that explicitly relate to the militia would trump federal law…or at least they would have prior to Heller. The right expressed in Heller has nothing to do with the 2A and all that was necessary to get that individual right was to incorporate Cruikshank.

        1. There’s actually a Supreme court ruling that the National Guard system is an exercise of the federal power to raise armies, NOT the militias referenced in the Constitution.

          They did it that way so that states couldn’t refuse to permit overseas deployments, as they legally can for militia deployments. (As became an issue in the war of 1812.)

          Thus some states have both NG units AND state militia.

    5. > Which today exists in the form of the National Guard

      I don’t think this is strictly correct. The militia in the United States consists of (per 1903 law) the organized and unorganized militias. The “well-regulated” clause applies to the unorganized today the same as it did when drafted – all able-bodied men between a certain age range.

      > Out of the hands of the mentally unfit
      I wish the gun control debate in America focused more on this and we started (with courage) to discuss the idea of a national registry for the non-criminally insane (along with the requisite companion topics of due process and protecting from stigma). It’s troubled waters, but I think less fraught and more solvable than the attempt to disarm the citizenry. The former is a complex issue for technocrats, the latter is a violation of many people’s core political philosophy (i.e. the police/soldiery/politicians shouldn’t be the only ones armed).

    6. Reason refuses to post this. Let’s see if deleting the link works:

      You are wrong

      The National Guard was created under Congress’ authority to regulate the Army

      The “Militia” was every single able bodied free male between the ages of 17 and 44, and still is.

      (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
      (b) The classes of the militia are—
      (1) the organized militia, which consists of the National Guard and the Naval Militia; and
      (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

    7. The standard was not in any way what you claim here.

    8. Why do Americans obsess over gun ownership, rather than gun usage?

      Why don’t any jurisdictions try the obvious, and take the guns away from their regular police officers? (Countries without police that are routinely armed have special armed police units for use when necessary.)

      It’s not like the current system works. Why not de-escalate and see what happens?

      1. Simple solutions to complex problems.

        Query: An urban, black 14 y.o, is much more likely to die of gun violence by a non-white citizen, rather than a police officer (c.f., Chicago, Detroit, Baltimore, Philadelphia, …). Who should we disarm?

  8. Even to the extent that the situation can exist, of course, a duty to comply with the arbitrary demands of others is fundamentally incompatible with a free society.

    1. On the contrary, a duty to avoid killing your fellow citizens whenever possible is a key requirement for something to be a free society. You can tell because the founding fathers put “domestic tranquility” right there in the preamble to the Conststution.

      1. To be clear, are you claiming that a duty to comply with the arbitrary demands of my fellow citizens is not fundamentally incompatible with a free society? I know you guys do freedom a little different over there, but jeez.

        1. We do it without gunfights in the street, yes. But misrepresenting other people’s arguments is something that happens everywhere.

          1. Your argument was that “a duty to avoid killing your fellow citizens whenever possible is a key requirement for something to be a free society.”

            In your view, would the Charlie Hebdo victims have been precluded from using deadly force in self defense, since they had received demands that they change the nature of what they publish and could have avoided the deaths by complying?

            Do Orthodox Jews and other minorities surrender the right to self-defense if they fail to heed demands to avoid traditional dress, or stay out of certain neighborhoods?

            That doesn’t sound like a very free society.

    2. “a duty to comply with the arbitrary demands of others”

      No such duty is under discussion here. The duty is to back away rather than escalating a situation, in order that it can be dealt with safely by the police.

      Frankly, if someone has a gun to your head and you don’t do what they tell you, you’re an idiot. So you comply long enough to change the situation.

      That’s not some fine point of principle, it’s just reality.

      1. No one else spotted this howler earlier, either?

        in order that it can be dealt with safely by the police. [emphasis added]

        There is, of course no such assurance that the police can do it safely. There’s the further issue that, if it’s not moral for you to defend yourself, how can it possibly be moral for you to hire the police to do it for you, or for society to do so on your behalf?

  9. the Old West approach:
    Everyone walks around armed. If faced with a threat, one is expected to react with deadly force. No running away, no complying with the attacker’s demands. Just shoot the presumptuous SOB.
    I like it!

    1. Ed Grinberg likes! the culture of honor.

  10. What if I am using force in defense of another, I can retreat in complete safety, but the person I am protecting can not? The part of the Connecticut law quoted isn’t clear on the scope of “complete safety”. Would it matter if the third party is somebody I have a duty to protect instead of a friend or stranger?

    1. Subection (a) of the statute permits a person to use force to “defend himself or a third person”, while subsection (b) says that “Notwithstanding the provisions of subsection (a) of this section, 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 (with no exeption for the safety of the third person) or complying with the demand.

      So it seems to me that by its literal terms, the statute does require you to abandon the third person to their fate if you can do so.

      1. It says the opposite. The key bit is, “. . . if he or she knows that he or she can avoid the necessity.” Necessity includes defense of another.

        1. You changed my mind. I agree.

  11. I could not support the duty to comply with positive or negative demands. I cannot know the veracity of the statements made to me by my attacker; therefore there is no “complete safety” in complying with demands. I cannot know the attacker’s motivation; he may only want my wallet, or he may want my wallet and to not leave any witnesses. A completely accurate statement, “give me your wallet and then I’ll kill you so you can’t identify me later,” will elicit no wallet. The attacker has already created a criminal situation that he would want to avoid punishment for, and has already proved himself less than honest. Oh what basis should I take his word that I’m safe if I comply? Some people are left alone after complying; others are killed. That fact alone argues strongly that compliance does not confer perfect safety. I’m sure I don’t know my particular attacker’s record for keeping his word. No support for any duty to comply, thank you.

    1. JohnW in Md fights the hypothetical.

    2. “Oh what basis should I take his word that I’m safe if I comply?”

      The basis that it’s a hell of a lot more illegal to murder than to steal a few bucks in a street robbery? It doesn’t guarantee you won’t be killed, but in practice, it does.

  12. Fleeing can be distinguished from compliance (positive and negative).

    1. It is a remedy in itself. Unlike turning over your wallet, which at best will propitiate the criminal, retreating physically moves you away from the threat, which in and of itself can make you safer.
    2. It is not what the criminal wants. Turning over your wallet is what the mugger wants you to do. Complying directly encourages the criminal and criminality generality. Running away can defeat the purposes of the mugger or rapist.

    The problem with both of those distinctions is, they are often not true. Retreating typically makes you a better target, at least for a period of time; forcing you to retreat is sometimes the criminal’s actual goal.

    But they are distinctions.

  13. In much of rural Maine, workplace and residence is often the same.

  14. Retreating actually removes you from danger; complying with demands doesn’t. Forcing you to trust that someone prepared to kill you is not prepared to lie to you, is unreasonable.

  15. Have to be careful, the statues and law have to be read in context.

    For example in Maine:
    https://legislature.maine.gov/statutes/17-A/title17-Asec105.html
    A person is justified in using a reasonable degree of nondeadly force upon another person when and to the extent that the person reasonably believes it necessary to prevent what is or reasonably appears to be an unlawful taking of the person’s property, or criminal mischief, or to retake the person’s property immediately following its taking; but the person may use deadly force only under such circumstances as are prescribed in sections 104, 107 and 108.

    and there is an exception for “Committing or about to commit a kidnapping, robbery … ” (see section 108)

    So, I simply do not think that the examples “Give me your wallet or I’ll seriously injure you” (which is attempted robbery) and “Beg for your life or I’ll kill you” (attempted murder) are valid examples of a duty to comply.

    I have tried to think of what a hypothetical example of a duty to comply with “a demand that the person abstain,” but I am sure that complying with a robbery is not such an example.

    1. dwb68: I appreciate your point that some states allow deadly force to defend against robbery, so then you wouldn’t have to turn over your wallet even under a duty to comply with positive demands (since then you’d be robbed, not avoiding the robbery). But other states, such as Connecticut, don’t allow deadly force against robbery.

      And with “beg for your life or I’ll kill you,” begging instead of using deadly force in self-defense would be required by a (hypothetical) duty to comply with positive demands — just as with “go away or I’ll kill you,” retreating instead of using deadly force in self-defense is required by a duty to retreat. Complying with both demands would avoid death, serious bodily injury, rape, etc. The fact that the threat (“or I’ll kill you”) is a threat of murder doesn’t preclude the duty to retreat or comply from applying.

      1. I wish I could edit posts.

        A more accurate analysis, IMO, of the relevant Maine statue is the statues do no automatically allow deadly force against robbery. In the case of Maine, I think a better way to read 105 in the context of 108 is that the force in defense of a robbery needs to be “proportionate.” If someone steals your lunch money, you can take it back as long as the force is roughly equal (but you cannot automatically shoot them).

        My overall point though is that the “duty to comply” might turn on a lot of things, like what they are asking to not to do, and how much force that they are using.

      2. “just as with “go away or I’ll kill you”” — but duty to retreat is “if I go away he CAN’T kill me”, i.e. not based not trusting the robber’s word. E.g. if the robber only has a knife, and you can easily outrun him. The robber has a motive to kill you even if you comply, to remove witnesses.

        If “Complying with [robber’s] demands would avoid death, serious bodily injury, rape, etc”, why is armed robbery punished much more harshly than unarmed robbery or non-violent extortion?

        1. “go away or i’ll kill you” is a much better hypo example of when one would have a duty to comply

          Although I was thinking that this provision was more in line with a bar fight: “stay out of this.”

          If you happen upon two women having a knife fight, in Maine, and they tell you to “stand back” or stay out of it, maybe you should.

    2. Actually, I think the statutory structure provides precisely the opposite result.

      Me. Rev. Stat. § 108(2)(A)(1) says that “A person is justified in using deadly force upon another person [w]hen the person reasonably believes it necessary and reasonably believes such other person is [c]ommitting or about to commit a … robbery”. But the exception that Prof. Volokh is talking about, § 108(2)(C)(3), says that “a person is not justified in using deadly force as provided in paragraph A [i.e. the paragraph that permits deadly force to protect against robbery”) if [t]he person knows that the person or a 3rd person can, with complete safety: (a) Retreat from the encounter, except that the person or the 3rd person is not required to retreat if the person or the 3rd person is in the person’s dwelling place and was not the initial aggressor; (b) Surrender property to a person asserting a colorable claim of right thereto; or (c) Comply with a demand that the person abstain from performing an act that the person is not obliged to perform.” So if you tried to claim that you were justified in using force to stop a robbery, and the prosecution could prove that you could have complied with the demand in complete safety instead, the correct verdict under this statute would be guilty.

      1. Why isn’t (b) superfluous, if (c) covers even robbery (let alone “a person asserting a colorable claim of right” to your stuff)?

        I wonder how “the prosecution could prove that you could have complied with the demand in complete safety instead”? As opposed to e.g. proving that you could’ve run away from a robber who only had a knife.

  16. Consider an analogy:

    The law often has to balance between predictability and flexibility. The law could define a standard of conduct at a very high level — i.e. you must do what a reasonable person would do — and leave it to the jury to sort it out. But that creates unpredictability. Or the law could define standards of conduct at a very low level — e.g. you must tie up your dog if and only if it has already bitten at least one person, but not before — and decide many cases as a matter of law. But that makes it hard to cover all possible fact scenarios well.

    Therefore, it is common for the law to do a bit of both. It will define a standard of conduct at a high level of generality. But then, for fact scenarios that come up frequently, if will further define how this high-level standard applies. In theory the general and specific formulations are the same. But in practice this allows for greater predictability. Juries aren’t reinventing the wheel in each case, and some cases can be decided as a matter of law. A classic example of this is duties of care in negligence. Another example is particular types of fiduciary duties.

    It’s notable that the law of torts and property is littered with places where there once was a specific rule, but over time courts have abandoned the specific rule in favor of a general rule that lets a jury consider all factors — e.g. there used to be two different rules for whether you had to tie up your dog, depending on whether you lived in the city or the countryside, whereas now that is just a fact that juries consider.

    I view the duty to retreat as another example of the phenomenon of having both a general rule and a specific rule that applies it to a common fact pattern. The general principle is that you can use force only when it is reasonably necessary. The duty to retreat says that using force is not reasonably necessary if it is reasonably possible to avoid danger by retreating. This is the specific application of the general standard. I don’t view it as an exception to the general standard as much as an elaboration of the general standard. Professor Volokh seems to agree with that view, or at least to agree that this is the origin of the specific standard.

    The question, then, is when should you have only a general standard, and when should you also define how that standard applies to specific situations? I think the factors that need to be balanced are roughly: (1) how often a specific situation comes up; (2) how much clarity is added by the specific rule; and (3) how often will the specific rule create too much rigidity, either in terms of creating unanticipated outcomes in strange cases, or in terms of being unresponsive to changes in relevant social conditions?

    The best case for a specific rule is probably distinguishing how the use of reasonable force applies to defense of property versus defense of a person. Property crimes are common. So it will probably come up a lot whether it is reasonable to use lethal force to prevent a property crime. Answering that question provides a lot of clarity, because different juries with no guidance might come to different ideas if they were reasoning only from first principles.

    The case for having a duty to retreat as a specific rule seems like it might once have been strong, but is growing weaker over time. I get the impression that violent confrontations outside of the home used to be more common. I rarely see them now. By contrast, I still see violent confrontations inside the home frequently. Likewise, I get the impression that the possibility of retreat used to be more important. When I do see cases of non-domestic violence, self-defense often is not practically possible or else retreat is not reasonably possible. In short, it seems the situation is coming up less often, and the specific rule is providing less and less clarity in the cases when it does.

    Finally, I think you can make a good case that a duty to comply doesn’t especially add much in the way of predictability or judicial efficiency. I don’t know that I have ever seen a case where a person has chosen to resist force with force rather than comply with some demand. And I would imagine it is not often that clear whether complying with a demand would really prevent the aggressor from using force or not. Moreover, I can imagine that the circumstances where a duty to comply would apply might be quite varied. So it is easy to believe that the rule would have unanticipated results in a large fraction of the times it is applied. It would have some cost in terms of flexibility lost and little benefit in terms of predictability gained.

  17. If someone is threatening me with a weapon and says, “I will kill you unless…” all I’m going to hear is “I will kill you.” and defend myself, if I have the means.

    How can you trust a person who will threaten death to not kill you even if you comply?

    1. “How can you trust a person who will threaten death to not kill you even if you comply?”

      You can’t. That’s actually a good argument. In theory.

      Set against that:

      “defend myself, if I have the means.”

      What are the chances you’ll actually have the means and opportunity to do so without putting yourself into greater danger?

      Ultimately, it’s something of a wash, because anyone threatening to kill you is probably at least borderline mentally unstable. You should (for your own safety) do your best to calm them down, and that probably doesn’t involve escalating the situation.

  18. Public self help is the sole unifying factor of all jurisdictions with low crime rates. The lawyer profession is in utter failure at providing the vital government purpose of safety.

  19. I don’t have a good answer to the question because “abstain from performing an act which he or she is not obliged to perform” is so broad. Maybe I’m picking flowers in my neighbor’s garden. Maybe I’m looking for my lost wallet in my own yard. I’m sure he’ll steal the wallet if I walk away, but that is only simple larceny rather than robbery if the wallet is not in my possession. Society could give me greater rights in the second case than in the first.

    Here’s an example where I could subjectively believe that compliance leads to safety. Say the lot line between my neighbor and me is disputed. I’m digging on my side of the line when my neighbor says stop messing with my flower bed or I’ll shoot. Each of us has a good faith claim to ownership of the patch of dirt. Probably I’d believe him. He could have shot first and issued demands later. If I trust the police I can go inside and call 911. If I live in a state where a threat of deadly force can be used against a trespasser, or if I don’t trust the local police to enforce the law, then it’s a tougher situation for me.

  20. What about a duty to not threaten people with deadly violence?

    The idea that someone threatening you creates a duty for you to follow their wishes is offensive to anyone who is not morally bankrupt. If someone doesn’t want to be met with deadly force, they shouldn’t threaten someone with deadly force, regardless of the location. A violent criminal legally has a greater claim to a public place than you do, precisely because of the fact that they are violent? By definition, the duty is only triggered if someone commits or threatens to commit a criminal act against you. That is shameful.

    The right of self-defense is an inseparable component of the right to life, which incorporated due process requires all states to respect. My argument is that duty to retreat or comply with commands from those who threaten you is therefore not only wrong but unconstitutional, at least as applied to a situation where you do, in fact, have reason to believe that you are in serious danger.

    1. “What about a duty to not threaten people with deadly violence?”

      What about it? Does failing in that duty remove someone’s other rights?

      I can see the argument for killing out of necessity. But you’re talking about killing out of revenge.

      It doesn’t matter what someone does. If you have a way out of the situation that doesn’t involve anyone dying, take it. For your sake, not theirs. You don’t want to be a killer.

      That doesn’t mean letting someone get away with it. It just means backing away, calling the police, and catching and prosecuting them in the normal way.

  21. Twelve states more or less tells the victim that they have no rights to resist the the criminal’s demands. This with the criminal committing a criminal act right up front. Yet none of these states has the same requirement upon the criminal when that criminal is being confronted by the police.
    It seems to me whomever that formulated these laws much have had their head up their rear where the sun doesn’t shine when they wrote these laws. They are giving to the criminal more rights when confronted by law officers than they are to the citizen when confronted by a criminal. So just why should the criminal be afraid of the police? If the police kills them then the criminal’s family will get a very large settlement and if they kill the cop, who knows they might not even have to stand trial or at most serve only a few years in prison. It seams these laws are all to the benefit of the criminal.

  22. Lets start with some basic premises about why duty to retreat laws came into being in the first place.

    Most homicides today, and even more so in the past, arise not from organized crime, serial killers, mass shootings, or even robberies, but from domestic disputes, bar fights, road rage, and similar.

    When people get angry, they tend to stick to theie rights and their guns. Their sense of victimhood becomes exaggerated. Left to themselves, people can get killed.

    The duty to regreat recognizes this natural tendency in human beings and imposes a duty to avoid it. Road rage, which is becoming an increasing problem, presents a clear example. The law imposes a duty to yield to prevent an accident, even if one clearly has the right of way and the other party doesn’t, because preventing people from dying is more important in the scheme of things than feeling vindicated for being in the right. Rather than helping support people in feeling justified for refusing to yield, the law instead punishes them, to try to ensure that the natural human impulses behind road rage are kept in check and do not lead to too much death and destruction.

    The duty to retreat and similar laws are based on extensions of this same basic principle. The idea is that somebody’s life isn’t worth being in the right, or even property. When people in a bar get into a fight, spouses quarrel, or a road rage incident starts, the law imposes a duty on the more rational and lucid one to get the heck out of there before things get out of hand.

    There can be exceptions. But I think the basic principal is a just, valid, and necessary one, and exceptions should be very limited. It isn’t fair that the person in the right should have to yield. Of course it isn’t fair. But that’s a feature, not a bug. Life isn’t fair. We humans aren’t fair. We want a society where people are able to live, in peace if possible. Human beings are imperfect. The law has to take their imperfections into account. The only perfectly just society is probably one where we’re all dead. If we want a society where we can live, that means we will sometimes have to live with imperfection.

    That’s what the duty to retreat to avoid a death, like the duty to yield to avoid an accident in traffic law, is all about.

    1. There are also pragmatic evidentiary considerations, separate from the moral ones. The law predates the days of portable video cameras and smart phones. When people get into a fight, only one side of the story survives if the other side gets killed. How do we know the deceased was attacking? The police shooting cases make clear what the commin law has long known, that people’s perceptions of feeling threatened can sometimes, perhaps more than just sometimes, be subjective. The duty to retreat poses an additional check to ensure the perceptions of being threatened are not erroneous.

      Indeed, in a world where members of a different race are perceived as more threatening than members of ones own when doing objectively the same behavior, tempering rules like the duty to retreat becomes all the more relevant to prevent unnecessary deaths. It is possible that parts of racism like perceptions are genetic and we will just have to find ways to live with them. I do not know. But regardless of the cause, rules like the duty retreat, common-law rules designed over centuries to alleviate the negative consequences of natural human instincts, help us allievate the worst consequences of this aspect of our behavior as well.

    2. You mentioned exceptions; what would some be?

    3. I think what you are writing here is a Just So Story. There isn’t a state in the US where someone who initiates a fight, or who participates willingly in a mutual brawl, can claim self-defense (without having completely withdrawn from the fight.)

      This may all be codified by now, because we’ve been moving that way for quite a while, but it certainly originates in common law. The duty to retreat comes from another, far less admirable, strand in British jurisprudence which says you’re all subjects, and the monarch objects to his or her subjects damaging each other. This shows up in current British law that is shockingly self-defense hostile.

      1. That’s complete nonsense. There’s no such thing as British law. English&Welsh law is very strong on self-defence. I think Scots law is too, but tbh I don’t care enough about Scotland to be sure.

        https://www.bbc.co.uk/news/uk-england-london-48134851

        We had a pretty exemplary case a couple of years ago:

        “A 79-year-old man who killed an armed burglar with a kitchen knife acted lawfully, an inquest has decided.”
        […]
        “He told the hearing that when he grabbed the knife, Mr Vincent’s accomplice fled out of the front door but the intruder came down the stairs holding the screwdriver and saying “get out of my way or I’ll stick you with this”.

        “Mr Osborn-Brooks said he had then warned Mr Vincent that his weapon was “bigger than yours”.

        “”I thought he would look at my knife… and he would take the opportunity to run out the front door which was open.

        “”He definitely didn’t try to get out of the front door, he came towards me,” Mr Osborn-Brooks said.”

        [I think inquests are broadly the same in the US as they are here – a coroner investigates the circumstances of a death, and their verdict can potentially lead to a criminal investigation and/or charges.]

      2. I don’t have a problem with that. I’m saying society has an interest in keeping the peace and people staying alive. So it seems to me very logical that in a monarchy, where the king is seen as embodying and personifying society and its values, the law would say that it’s the king’s peace and the king valuing the lives of his subjects. It seems pretty much the same. Saying things that way doesn’t seem to me to be any more or less degrading than having a king in the first place. If you have a monarchy, that’s the sort of thing you get. It comes with it.

        In any event the idea that society values keeping the peace and preserving life seems to me to be similar regardless of what form the idea of “society” having values takes.

    4. “Most homicides today, and even more so in the past, arise not from organized crime, serial killers, mass shootings, or even robberies, but from domestic disputes, bar fights, road rage, and similar.”

      nalysis Of Murder Data In Baltimore: 82% Of Victims Have Criminal Record, 81% Of Suspects Have Criminal Record, Average Victim Had 10.8 Arrests

      Actually, most murders consist of criminals killing criminals. Not necessarily in the course of a crime, criminals also have private lives, just like anybody else. They just happen to typically be extremely violent private lives.

      By the way, the stats actually understate the degree to which murder is primarily a criminal on criminal thing, because some criminals have not been caught for the first time, or have sealed juvenile records, and so wouldn’t show up as criminals in research such as this.

      1. Examining the neighborhood context of the violent offending-victimization relationship: A prospective investigation.

        “Abstract
        The persistent link between offending and victimization is one of the most robust empirical findings in criminological research. Despite important efforts to isolate the sources of this phenomenon, it is not fully understood. Much attention has been paid to the role of individual-level factors; however, few studies have systematically integrated neighborhood conditions. Using prospective data from the Pittsburgh Youth Study the current research examines a set of hypotheses regarding the interplay of neighborhood structural conditions and the victim-offender overlap. A multilevel analytical technique is applied to the data which purges time-varying covariates of all time-stable unobserved heterogeneity. Results indicate that the relationship between offending and victimization is pronounced in disadvantaged neighborhoods, while offending is not significantly related to victimization risk in contexts marked by lower levels of disadvantage. The implications of the results for theory are discussed, along with recommendations for future research. (PsycInfo Database Record (c) 2021 APA, all rights reserved)”

        One way to interpret this is that, while criminals are at a much, much higher risk of both victimizing and being victimized, than law abiding people, in sufficiently peaceful areas the percentage of criminals is low enough that they none the less do not dominate the total numbers.

        Though they dominate over-all, of course.

    5. In both traffic law and homicide law there is an incentive to stay out of trouble even when you are in the right. Your life is likely to be messed up by the investigation or other consequences. If I hadn’t braked to avoid the bicyclist who failed to yield I’d probably be without a car for a while due to the investigation and damage. I’d be harassed by lawyers and cops. Not worth it just to be an agent of Darwin.

  23. That rate was for some towns, mostly Democrat jurisdictions.

  24. I’d go for #4 – but with the caveat that the question comes from a very American basis which assumes certain things I don’t agree with.

    Really, it doesn’t matter what someone does, or doesn’t do. If you can avoid killing a person, do so. If that means damaging some property, then so be it. If the person’s a terrible scrote, it doesn’t change anything, because you’re not doing it for them, you’re doing it for you.

    The only time it’s justifiable to kill someone – and even then it’s a terrible thing to have to do – is when that will _directly_ prevent the deaths of more people _and there is no other option_.

    I can’t understand how this shit is hard for some people. We don’t kill human beings. End of story.

    Are the people here saying they’d take a life to preserve the contents of their wallet serious? I’d happily give a few notes and some replaceable plastic cards to save someone’s life.

    1. In the first place, nobody’s really saying that. The big objection to the “comply” position, which I see stated repeatedly above, is that you have no reason to believe in the good faith of the person making the threat.

      However, I will go on to further shock you and say you that yes, society is better when there are fewer people who would threaten others with death as a way to take their possessions. So while I am completely supportive of the American law notion that you don’t get to kill in revenge — e.g. you don’t get to chase down the person who threatened you with death while holding up your shop, after they have left and are walking down the street — I am even more supportive of great leniency towards those who are threatened with death or serious bodily harm if they don’t comply, and choose not to take the criminal at their word.

  25. I don’t believe in either of these legal concepts. Regarding the duty to comply: No one should have the right to control my behavior with a threat of harm. Regarding the duty to retreat: We see all the time TRAINED police officers making bad decisions under the combined pressures of time and physical danger–why should we expect UNTRAINED civilians to do any better?

    1. Because when the untrained civilian is under assault, he or she usually has no doubts who the innocent party is. That can be a difficult thing for a police officer arriving on the scene to determine.

  26. My problem with the duty to comply rule is this: take any hypothetical, and then add the additional threat “and I’ll kill you if you go to the police.” In the real world, that is usually at least an implicit threat and can be a very credible one. There is generally no legal obligation to report a crime to the police (except sometimes for child abuse). So what’s a law abiding person to do? I can’t do whatever it is this bully is telling me not to do, I can’t go to the cops, and I can’t lawfully defend myself. If I want to follow the law, I am indefinitely at the mercy of bullies.

    1. In Massachusetts witnesses to certain violent crimes have a duty to report them if they can do so safely.

      It really matters if you trust your local police. If you trust them to defuse the situation, go to them despite the implied threat. If you trust them to tip off the armed and dangerous guy that you’ve filed a police report then you’re in trouble.

      I would trust my town’s police unless my antagonist was well connected. We don’t have much violence in town and I am confident the important people want to keep it that way.

  27. By the time you weigh all your options and the repercussions of each, you’re probably dead!

  28. It seems to me a duty to retreat is a duty to be a coward. If you can stop an active shooter (or someone a reasonable person may believe is about to be), you aren’t allowed. I’d almost rather have duty to advance.

    1. Isn’t a duty to yield to avoid a traffic accident also a duty to be a coward? If you’re in the right, isn’t having to move aside or stop for someone who’s in the wrong also degrading to ones machismo?

      This argument is exactly why I make the connection between the duty to retreat and the duty to yield to avoid traffic actions.

      If we really believe that the law should never impose a duty to be a coward, then it seems to me that we ought to repeal the duty to yield to avoid an accident and legitimate road rage. Perhaps road rage really is braver, more manly, a greater display of machismo than this cowardly business of yielding.

      But perhaps society sometimes has to require people curtailing their machismo and impose duties to be a coward, so that people can stay alive.

      Again, the duty to retreat, like the duty to avoid an accident, is based on the idea that much of the time, the other person is not some inherently evil OTHER completely beyond any considerations of mercy and who deserves anything he gets, but a person like oneself who has got caught up in anger and made bad decisions. If both parties are able to survive, the anger and the bad judgment may pass.

      1. It is an agreed upon protocol to enable safe passage. It is convention that allows predictable behavior.

        In the case of driving, there isn’t really an upside to violating the convention. In fact, there is every reason to believe it is dangerous to violate it.

        In the case creating a protocol that lets criminals succeed easier isn’t a net win for society. Ideally, we’d create protocols that make is more dangerous for people to violate the laws. As it stands, with the defund the police, and other responses, we are making it the protocol that the state, polices AND citizens will stand down. This is not goot.

        1. But the traffic context is exactly the same. The duty to yield to avoid an accident requires a person with the legal right of way to yield to the person who is violating the law, the criminal. And that does all the things you said. It makes it easier for scofflaws to violate the law because they can get away with it. The law actually requires letting them get away with it.

          If preventing law violators from getting away with violating the law is really so obviously more important than preventing people from getting killed, why shouldn’t this also apply in the traffic context?

    2. Also, the law in duty to retreat states permits taking action to prevent harm to others, so it wouldn’t apply to a mass shooter case where if you escape there is a substantial likelihood someone else will get killed. It is only when you can escape without anyone getting hurt (and there is a basis for a reasonable degree of confidence of this) that the duty is relevant.

      I think this fact deals with most of the examples people are giving.

      I can give examples that go the other way. Stand Your Ground, taken literally, could be interpreted as permitting spouses in a domestic dispute to kill each other without consequence because, after all, BOTH of them can call it their home. And yet momentary rage in a quarrel between spouses is perhaps the paradigmatic example of a case where a duty to retreat to prevent a fight from escalating into a killing makes the most policy sense. Here, ones own spouse really shouldn’t be seen as a shapeless evil OTHER who deserves anything they get, even if own does get into a quarrel with them sometimes, and even if they are in the wrong.

  29. I mean, we already say police don’t have a duty to advance. And some states say we can’t have citizens advance. That way lies barbarism.

  30. I don’t support either duty. I have questions on what “duty to comply” might mean in practice:

    1. After some angry altercations, I am warned not to show my face in the local park again. The threatener often frequents the park, as do I. I have every reason to believe that the threats are real. In a “duty to comply” state, am I obliged to absent myself from the park?

    2. An angry neighbor warns me not to park in the street in front of his house, as it’s “his” spot. Parking is limited in the neighborhood, and sometimes the only spot available is in front of his house. In a “duty to comply” state, am I obliged to refrain from parking in front of his house?

  31. If I’m sitting in my car at an empty intersection, and I see someone running towards me carrying something I think is a knife, not driving away seems like a choice to escalate the situation.

    Just because someone (possibly unknowingly) makes me fear for me life doesn’t give me the right to exact retributive justice on that person.

  32. It depends on the nature of the demands made. If the demands advance the security of the scarer at no cause to the scaree, then that is a reasonable demand the scaree should be obliged to take. The scaree doesn’t have the right to use deadly force simply to rebuke the scarer. Also, the scaree is not acquiescing to notion that the scarer’s safety is more important than the scaree’s saftey. It is simply requiring of the scaree an acknowledgement of the humanity of the scarer and the scarer’s human right to saftey, even if the scaree has reason to believe the scarer does not reciprocate.

    In summary, I don’t believe there is a right to kill someone to defend one’s ego.

  33. There is also no right to kill someone because of one’s own issues with insecurity or prior trauma.

  34. For example, if there is a person with a knife standing 15 feet from a person with a gun, and the knife guy shoots “back away or I’ll stab you!” Then I think the gun guy is wrong to stand and shoot.

    1. How does that comport with the Tueller drill?

        1. Have you tried the drill, gun drawn and gun holstered?

          I have, and my take is – if I have the knife and want you dead, you are probably dead. The gun defender might get lucky with a shot to the central nervous system, but absent that lucky shot people shot with handguns can keep operating for long enough to make good use of a knife. When you have tried it, have you had different results?

          1. So then it would behoove you run for it instead of trying and failing to shoot.

            1. Give the drill a try and see what works for you.

              IMHE, running is great … if and only if you can run faster than the attacker. If not, you get stabbed in the back.

              I ran track in high school, but that was several decades ago. My knee surgeon is top notch, but realistically speaking, I’m not going to be outrunning too many people these days. If you can do so reliably enough to bet your life on it, bully for you! Enjoy it while it lasts.

              1. Better than laying on the ground and play dead, I suppose.

                1. Or maybe even fighting back. It’s fight or flight … and when flight isn’t an option…

  35. Counselor –

    We could avoid having to dissect this nonsense if we’d just heed Oliver Wendell Holmes’s advice:

    “Detached reflection cannot be demanded in the presence of an uplifted knife.”

    “Uplifted knife” is a metaphor for any lethal threat.

    (cue Spock) “Seems logical.”

    1. It’s called the fight or flight response. Not the fight or fight response.

      1. I can’t run quickly

        So it’s “fight or die”

        And the proper outcome is that the person who threatens me dies

  36. Here’s an interesting video where a robbery victim complies with the robber.

    1. That’s why it’s so important to know when to flee for safety.

      1. No sane person would discount situational awareness. Avoidance is the safest and smartest thing to do, hands down. That said, if you’re confronted with an imminent lethal threat, sayin’ “Oh, sh!t!” and trying to flee will get you killed, likely as not. Absaroka’s video post is an object lesson.

        I once had a dude step out from behind a pillar at a MetroRail station with his hands behind his back. I was situationally aware, but his presence was instant. I was CCW cross-draw, and my hand went immediately to my gun. When he presented empty hands, I continued on my way. All he wanted was to hit me up for “spare change.” But I’ll tell ya, under those circumstances if he’d have come out with a weapon, the LAST thing I’d do try to run away.

        Just sayin’.

  37. Here’s an interesting story where the assailant is gunned down in self defense, the victim leaves him on the ground, and then returns to shoot the assailant more, with the assailants own gun, which is pretty boss, but illegal.
    https://news.yahoo.com/miami-man-killed-armed-teen-185056266.html

  38. Stephen Lathrop, a man with no honor, wrote 10+ comments attacking anyone who said that being forced to do or not do something was in itself a personal attack, and worthy of self defense. His phrase was “invokes the culture of honor”.

    I was looking at the 5th Circuit ruling in Wilson v. Hous. Cmty. Coll. Sys., that the SC took up today on appeal (I’m hoping it’s to make sure this precedent goes national)

    https://casetext.com/case/wilson-v-hous-cmty-coll-sys

    “Additionally, the Supreme Court has held that a free speech violation giving rise to a reputational injury is an injury in fact.” Meese v. Keene , 481 U.S. 465, 473, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987).

    Bad news, Stephen, the US has a “culture of honor” that was embraced by SCOTUS back in 1987.

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