Police crime scene
(AP Photo/Andrew Harnik)

By Emily Taylor

If you own a gun, it is imperative that you learn these three legal concepts that will help you know when it is reasonable to use deadly force. Most gun owners nationwide will recognize these three doctrines, even though they may have different names in each state. A better understanding of these concepts can help keep you on the right side of the law.

The Legal Duty to Retreat

It was once the prevailing doctrine that a person could be disqualified from using deadly force in a self-defense situation if it was shown that he or she had an opportunity to safely retreat and did not.

What is the legal duty to retreat? In layman’s terms, it means if you are attacked, but you know you have the ability and opportunity to escape safely, you must attempt to do so instead of using force — or deadly force — against your attacker. This philosophy is based on the idea that a human life, including that of a criminal, should only be taken as a last resort.

Fourteen states continue to impose some form of a legal duty to retreat: Arkansas, Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New York, North Dakota, Rhode Island, and Wisconsin.

Police crime scene
(AP Photo/Ted S. Warren)

It’s important to note that most states impose a legal duty to retreat only if it can be shown that the defender knew or should have known there was a reasonably safe way to retreat. If there is no safe way to retreat from an attack, then these states allow you to defend yourself.

Additionally, most of these states don’t require you to flee when inside your own home. It is easy for a prosecutor to coolly and calmly reflect on possible escapes to argue that the person was not justified in using deadly force in self-defense. However, in the heat of the moment, while being attacked, when fear and adrenaline are pumping through the body, the imposition of a legal duty to retreat can be a harsh precondition.

This is why most states have reconsidered the unfair burden duty to retreat places on the victim and have abandoned the legal duty to retreat in favor of its converse: no legal duty to retreat.

Stand Your Ground (No Legal Duty to Retreat)

In the last 20 years, most states have revised their statutory self-defense laws to affirmatively state that there is no legal duty to retreat. This doctrine is commonly referred to as Stand Your Ground. “Stand Your Ground” means if you are anywhere you have a legal right to be and you are attacked in a way that would justify the use of force or deadly force, you are not legally required to consider your ability to retreat before defending yourself.

For example, if you are approached when leaving the grocery store by someone threatening you with a knife, the fact that you didn’t flee by retreating to the store or running for your car before defending yourself can’t be used against you. You may stay where you are legally allowed to be (ergo, stand your ground) and use deadly force to defend yourself.

Typically, most Stand Your Ground jurisdictions require the defender to meet a few factors before using force or deadly force in self-defense. These factors generally include: you must have a legal right to be in the place you are located when the force (or deadly force) is used; your use of force (or deadly force) is legally justified; you did not provoke the confrontation; and you were not engaged in criminal activity at the time you were acting in self-defense.

Again, these are not nationally uniform concepts, but are the factors we see most frequently in Stand Your Ground states. It’s important to know the law in your state.

Police crime scene
(AP Photo/John Minchillo)

By way of illustration, if a random person comes onto your property in a Stand Your Ground jurisdiction, you tell them to leave immediately, and they refuse, they are now trespassing. You physically attempt to gently usher the trespasser away, and they punch you in response; the trespasser could not claim they punched you because they “stood their ground” since they did not have a lawful right to be on your property. However, you would likely be successful in arguing that you stood your ground when you responded to their unlawful use of force with defensive force.

The Castle Doctrine

Typically, the duty to retreat doesn’t apply in your own home because of a legal philosophy commonly referred to as the Castle Doctrine. Under the Castle Doctrine, a person, as the “King” or “Queen” of their own home, is never required to flee their castle before using force or deadly force against an unlawful intruder.

All 50 states have some variation of the Castle Doctrine on their books, although a specific state’s laws may not actually contain the words “Castle Doctrine.”

The importance of the Castle Doctrine lies in its creation of a legal presumption. Generally, the Castle Doctrine’s legal presumption has the effect of establishing the reasonableness of a person’s belief that force and/or deadly force was necessary to prevent substantial bodily harm, death, or a forceful felony. Unless rebutted, a jury would be obligated to find them not guilty if charged and tried for assault or murder.

In a self-defense case, it is of the utmost importance to establish the Castle Doctrine. Similar to “Stand Your Ground,” the specific factors and wording of this law vary from state to state.

How Will You Be Judged?

Contrary to what their hysterical critics say, Castle Doctrine and Stand Your Ground laws are not licenses to kill. While each state’s self-defense law is different, we see common elements. That is, force — including deadly force — can only be used in the face of an imminent attack and that any force used to defend yourself be immediately necessary and not disproportionate to the attacker’s use of unlawful force.

If you are compelled to use force or deadly force and seek to be justified under a Castle Doctrine and/or Stand Your Ground law, by what standard will you be judged? The law will evaluate your actions using what is called the “reasonable person” standard. That is, would a reasonable person under similar circumstances agree that the use of force or deadly force was immediately necessary?

The reasonable person standard is the law’s attempt to make the concept of reasonableness an objective test. The jury will decide whether a reasonable person in the same circumstances would have used force and how much force was necessary in defending themselves or someone else.

The Castle Doctrine will give you a legal presumption of reasonableness, and Stand Your Ground will prevent the prosecutors from arguing that your use of force or deadly force was unnecessary because you had an opportunity to retreat.

Since the justification for using force must be seen from the defender’s perspective, you must be prepared to articulate why you used the level of force you did and why that level of force was reasonable under the circumstances. However, trying to communicate those details to an officer immediately after a self-defense incident can be extremely difficult. That’s why you should always confer with an attorney before speaking to the police.


Emily Taylor is a partner with Walker & Taylor, PLLC. 

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