The Right to Defy Criminal Demands: The Duties to Retreat and to Comply with Negative Demands

I've just finished up a rough draft of my The Right to Defy Criminal Demands article, and I thought I'd serialize it here, minus most of the footnotes (which you can see in the full PDF). I'd love to hear people's reactions and recommendations, since there's still plenty of time to edit it. You can also see previous posts (and any future posts, as they come up), here.

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Thirteen states and D.C. continue to recognize a so-called "duty to retreat" as a limitation on the right to use lethal force in self-defense.[1] The Model Penal Code captures the standard definition well: Even in defending against threat of death or serious bodily harm, deadly force may not be used if "the actor knows that he can avoid the necessity of using such force with complete safety by retreating." And this likely means that the defenders can't return to the place from which they retreated, at least for some time.

Seven states also recognize the duty to comply with negative demands, by denying the right to use deadly force in self-defense if "the actor knows that he can avoid the necessity of using such force with complete safety … by complying with a demand that he abstain from any action which he has no duty to take."[2] And one state appears to recognize a narrow duty to comply with both positive and negative demands, but only if they are minor: North Dakota denies the right to use deadly force in self-defense if "it can be avoided, with safety to the actor and others, by … conduct involving minimal interference with the freedom of the individual menaced."

Here too the law in essence requires people to comply with criminal demands. Say Craig tells Danielle, "leave this bar or I'll kill you." (It's not Craig's bar, so he's not just demanding that she cease an illegal trespass.) If Danielle refuses to comply with Craig's demands, she will lose her right to use deadly force to protect herself against Craig's deadly attack.[3] And "[t]he same result follows, of course, if there is no demand but the actor knows that he will be attacked if he appears in a certain place." (Not all duty to retreat scenarios involve such demands—sometimes the attacker actually wants the defender to stay, for instance when the attacker wants to beat up the defender. But they often do involve such a "retreat or else" demand, and then the duty to retreat, if state law recognizes it, applies.)

Likewise if Craig tells Danielle, "don't dance with your new lover in front of me at this bar." That is "a demand that [s]he abstain from any action which [s]he has no duty to take." By refusing to "comply[] with [that] demand," Danielle again loses her right to use deadly force should Craig attack her. And the statutory formulation of the duty to comply could in principle extend to serious demands indeed: "Don't have sex with my ex-lover or I'll kill you"; "don't set up your business competing with me, or I'll kill you"; "don't set up an abortion clinic, or I'll kill you."

Of course, the theory behind such duties is that Danielle should try to have Craig arrested and prosecuted. But say he denies having made the threat, and it's just his word against Danielle's at that point. The police may then decline to arrest him, the prosecutor may decline to prosecute (perhaps foreseeing that it would be hard to prove the threat beyond a reasonable doubt based just on Danielle's word), or the jury may acquit for lack of proof beyond a reasonable doubt.

Then Danielle would still lose her lethal self-defense rights by (say) dating the ex-lover. Indeed, her report of Craig's threat to the police could be used against her, since it would show that Craig had indeed made a demand with which Danielle has refused to comply. Self-defense is a form of self-help, which is especially useful if past attempts to enlist the legal system's help have failed. The duties to retreat and to comply foreclose that form of self-help.

The duties to retreat and comply are sometimes characterized as a special case of the "necessity" requirement in self-defense law:

1. To lawfully use deadly force in self-defense, the defender must reasonably believe that the use is necessary to prevent death, serious bodily injury, rape, kidnapping, or (in some states) some other serious crimes.
2. Deadly self-defense is necessary, the argument goes, only if there is no alternative that would still avert the danger without using deadly force.
3. And if there is an alternative—averting the danger by safely retreating—that means deadly force isn't necessary.

But this formulation of "necessity" is incomplete, because the law always recognizes that some alternatives need not be taken, because they unduly impose on your liberty.

For instance, say you're in a jurisdiction that doesn't allow deadly force simply to prevent robbery. (Half of all American jurisdictions take this view.) The "can't use lethal self-defense if it's not necessary" approach would suggest that you therefore can't use lethal self-defense if a robber demands your money, you refuse to obey, and he attacks you in a way that threatens death or serious bodily injury. After all, you could have averted the danger by handing over the money, so deadly force wasn't necessary.

Yet even the Model Penal Code's duty to comply wouldn't require this. Instead, it makes clear that the duty to comply never includes the duty to turn over property (except property demanded under a claim of right, for instance as with repossession of borrowed or mortgaged property). Having to turn over even a modest sum is seen as such an intrusion on liberty—or perhaps on dignity—that you don't lose your right to self-defense by refusing to take that alternative.

Likewise, say someone credibly says, "beg me for mercy, or I'll break your arm." No jurisdiction would bar you from using deadly force against this threat of serious bodily injury on the theory that deadly force was not "necessary" because you could have avoided the injury by begging.[4] Even the Model Penal Code makes clear that, while you have a duty to comply with demands to abstain from action—or else lose your right to self-defense—you don't have a duty to comply with demands to take action. Though there is an alternative (begging) that would still avert the danger without using deadly force, the Code (and, to my knowledge, the law of all states) would still let you use deadly force to protect yourself, without condemning such use as unnecessary.

The Code's drafters justified this exclusion of a duty to comply with positive demands by saying th­at such demands of "positive action" could be "infinite in variety," and some of them may be "outrageous, a demand to which the answer is that one would risk death rather than comply." Perhaps a demand for begging might so qualify for some people, and other positive demands for still more people.

So the duty to retreat is more specific than a necessity requirement: It is a statement that, if threatened with serious violence, you must surrender your right to be in a particular place—but not your right not to turn over your money, or your right not to beg—or lose your right to deadly self-defense. Likewise for the duty to comply with negative demands.

This may be part of the reason why, despite the Model Penal Code's endorsement, the duty to retreat is now recognized in only about a quarter of the states—and why the duty to comply has been adopted by even fewer states. Dean Margaret Raymond put it well in a 2009 article:

[The Model Penal Code's] approaches inappropriately undervalue that actor's dignitary interest …[:] the actor's interest in being permitted to move about freely and to pursue those activities fundamental to a free society, without being subjugated to the unlawful demands of another actor…. Any rule that constrains the law-abiding citizen's choice of lawful options by requiring her to submit to the unlawful demands of others in order to retain the privilege of self-defense improperly invades that interest. Such a rule … requires her to submit to the subjugation of an aggressive and unlawful actor. This allows bullies effectively to require compliance with their [express or implicit] demands.

Whatever the (uncertain) pragmatic costs and benefits of such duties to retreat or comply, such legally mandated "submi[ssion] to the subjugation of an aggressive and unlawful actor" is understandably unpopular.

The duty to comply with negative demands, by the way, appears to have been inherited from the Restatement (First) of Torts, where it was a limitation on the self-defense defense to a tort claim for battery. The Restatement, as best I can tell, invented the rule; it offers no case citations supporting its position. The Restatement (Second) continued to endorse the rule, but it was deliberately removed from the Restatement (Third).

The practical limitation on the duty to comply may be prosecutorial discretion. I have found only two appellate cases that refer to the duty having been invoked, and the facts in both seem unusual.

[1.] James Savage and C. Sumner Morrill were fellow bluegrass band members; Savage had an affair with Morrill's wife, and after that ended,

Savage and his wife went to [Morrill's farm]. Savage brought a loaded revolver, a tape recorder and copies of letters and tapes from Morrill's wife.

As a result of an earlier confrontation, Savage was aware that Morrill did not wish to discuss Savage's relationship with Morrill's wife…. Savage placed the tape recorder on the table and said he wanted Morrill to hear something. Morrill said he did not want to hear it, he knew all about it, this was his home and that he would have to get his "persuader." Savage fired four shots at Morrill, the first two in his chest, a third through the side and a fourth through his back as he was kneeling on the floor. Savage testified that Morrill had previously threatened to kill Savage and that he thought Morrill referred to a gun when he mentioned "persuader."

The court upheld the conviction, and in particular endorsed a jury instruction "that Savage was not justified in using deadly force if he knew that he could with complete safety comply with a demand by the victim that he abstain from doing something that he was not obliged to do"—namely, the demand that Savage stop talking about the affair.

Two facts here, though, make this an unusually strong case for a duty to comply, and may explain why it was argued in this case but so few others. First, Savage was in Morrill's house, doing something that Morrill had told me he didn't want to do. It doesn't appear that Morrill had demanded that Savage leave, so Savage wasn't exactly a trespasser. Still, any claim for a right to defy others' demands appears weaker when one is defying a homeowner's demands in his own home.

Morrill could have lawfully demanded that Savage leave, and could have lawfully threatened deadly violence as a means of backing that up. Morrill's demand that Savage abide by Morrill's conditions if he were to stay seems comparable.

Second, Savage was talking to Morrill, over Morrill's objections. The law often gives people considerable veto powers over others' talking to them, whether through unwanted letters, unwanted phone calls, or other unwanted contact. (Indeed, the ban on fighting words may be seen as a special case of that principle.) That would not justify Morrill's seeming implicit threat to shoot Savage if Savage continued discussing the matter. But it does weaken any interest on Savage's part in continuing to exercise his liberty notwithstanding Morrill's threat.

[2.] Lauren Daly and Margaret Dover were raising children together; after they broke up, they had conflicts about the custody arrangements. At one exchange of children, Daly shot Dover; her defense was that she believed Dover was trying to run her over with her car, and therefore shot in self-defense. The parties had apparently agreed that all exchanges would take place with Daly remaining in the home (presumably to avoid tense in-person interactions between Daly and Dover); and the judge instructed the jury that

[If the Commonwealth proves that Daly] knew that she could avoid the necessity of using deadly force with complete safety by complying with a demand that she abstain from any action she had no duty to make and failing to do so by coming out of the house and coming to the proximity of this automobile during the transfer of the child[,] … the actions of [Daly] are not justified.

This seems to me to be an error on the judge's part, because "the duty to retreat does not arise until the defendant forms a reasonable belief that the other person 'is using or about to use deadly physical force'"; by the same logic, the duty to comply wouldn't, either. Thus, if Daly and Dover were (say) having a non-visibly-life-threatening argument, and Dover said "just go away," Daly didn't go away, and Dover tried to run Daly over with her car, Daly would be able to use deadly force if she were unable to safely retreat at that point—it wouldn't matter that she could have avoided the problem by leaving before the situation became deadly (or else we would have a standing duty to avoid anyone who we think might threaten us if a conversation goes bad). Likewise here: If at the point Dover was (supposedly) trying to run Daly over, Daly couldn't safely avoid the situation by retreating or complying with a demand to abstain, she should have the right to use lethal force in self-defense—even if she could have avoided the problem by complying before the threat to her life became apparent.

[1] The states are essentially the mid-Atlantic and New England states (minus New Hampshire and Vermont), plus three midwestern states (Wisconsin, Minnesota, and Nebraska) and Hawaii.

[2] Connecticut, Delaware, Hawaii, Maine, Nebraska, New Hampshire, and New Jersey.

[3] The right to use deadly force in self-defense against threats of death or serious bodily harm is understood by American law as a right—often even a constitutional right—and not just as a benefit that the law is free to withdraw.

[4] I assume that even under North Dakota's provision that "The use of deadly force is not justified if it can be avoided, with safety to the actor and others, by … conduct involving minimal interference with the freedom of the individual menaced," such begging-on-demand would be seen as more than a minimal interference with freedom.