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The Duty to Retreat

March 22, 2012

For many centuries, English common law, on which most American law is based, provided that a person could not use deadly force, even in self-defense, if the person could safely escape from the situation.  This is the legal doctrine that has come to be referred to as the “duty to retreat.”  The duty to retreat says that a life should not be taken, even the life of a criminal  attacker, unless taking that life is necessary to save another life.

American states began chipping away at the “duty to retreat” in the 1800s.  More recently, the National Rifle Association has made repeal of “duty to retreat” laws a central part of its national agenda.  In the place of “duty to retreat” laws, the NRA advocates “stand your ground” laws.  Most American states have now adopted “stand your ground” laws.  Infamously among them is Florida, where then-Governor Jeb Bush signed a “stand your ground” law in 2005.

A “stand your ground” law says that a person is not obligated to retreat from an attack, but may stand and fight, and may use deadly force in that fight.  By contrast to a “duty to retreat” law, a “stand your ground” law says that taking a life, at least the life of an attacker, is preferable to compromising the pride of the person who was attacked.

The American shift from the English common law to the modern “stand your ground” law is a substantial and important diminution of our civilization.  It is of a piece with modern American gun culture, and it speaks poorly of us as a country.  It is no coincidence that the Second Amendment is the least copied of our constitutional rights among the nations of the world.

In the month since George Zimmerman killed Trayvon Martin in Sanford, Florida, commentary has focused on the Florida “stand your ground” law.  But despite the moral poverty of “stand your ground” laws, there is more to the problem than just the lack of a “duty to retreat” in Florida law:  the law is poorly thought out, and poorly written.

Here’s the Florida law, in full:

Section 776.012.  Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to s. 776.013 [relating to home protection].

For comparison purposes, here’s the comparable section of law from New York State, which is a “duty to retreat” state:

Section 35.15 

1.  A  person  may,  subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:  (a) The latter’s conduct was provoked by the  actor with intent to cause physical injury to another person; or  (b)  The actor was the initial aggressor; except that in such case the use of physical force is nevertheless  justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the  incident by the use or threatened imminent use of unlawful physical force; or  (c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

2.  A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:

(a) The actor reasonably believes that such other person is using or about to use deadly  physical  force.  Even in such case, however, the actor may not use deadly physical force if he or she knows  that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is  under  no duty to retreat if he or she is:

    (i) in his or her dwelling and not the initial aggressor; or

    (ii)  a police officer or peace officer or a person assisting a police officer or a peace officer at the latter’s direction, acting pursuant to section 35.30 [pertaining to law enforcement]; or

    (b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape,  forcible  criminal sexual act or robbery; or

    (c) He or she reasonably believes that such other person is committing or  attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision  three  of section 35.20 [relating to burglary].

First, notice that the New York State law imposes a duty to retreat on a person only when “he or she knows that with complete personal safety . . . he or she may avoid the necessity” of using deadly force by retreating.  If a person is not sure whether safe escape is possible there is no duty to retreat.  This is not a high standard; it is not the assault on personal safety that the NRA makes it out to be.

Second, notice that the New York State law establishes very clear exceptions to the right to use force in self-defense.  In New York, a person cannot use force in self-defense if that person provoked the attack or was the initial aggressor.  New York’s law includes these exceptions in the general self-defense provision; not just in the special “duty to retreat” provision.  In other words, it’s not just that a person can’t kill his attacker if the person provoked the attack; the person cannot lawfully use any force at all if the person provoked the attack.  A person who provokes the first punch and responds in kind is guilty in New York of assault.  A person who provokes a deadly attack and responds in kind is guilty in New York of homicide.

The Florida statutes have no such provision.  In other words, looking at the statutes alone, I find nothing that prohibited Zimmerman from chasing Martin down, confronting him, and even provoking Martin into using or threatening force against Martin, then shooting and killing him in self-defense as defined by and permitted by the statute quoted above.

One of the sponsors of Florida’s “stand your ground” law, State Representative Dennis Baxley, is feeling understandably sheepish just about now.  He has been all over the airwaves and print media of late, claiming that “his” bill doesn’t protect George Zimmerman.  “His” bill allows a person to “meet force with force,” not to hunt down and kill.  Others disagree.  The Orlando Sentinel quotes Arthur C. Hayhoe, director of the Florida Coalition to Stop Gun Violence, as saying that, under the “stand your ground” law, “Almost every case between two individuals where one was armed and the other was not is dismissed.”

In 2010, a study of the Florida law by the Sentinel found that the number of homicides that had been excused as “justifiable” had tripled after the new law went into effect.

Trayvon Martin was a 17-year old boy, watching the NBA all-star game with his dad.  At half-time, he went out to buy some Skittles, and he never came back.  Trayvon Martin is dead because we place more importance on the right to own, carry and use guns than we place on the lives that the exercise of those rights ends.  Trayvon Martin is dead because we place a higher value a man’s prideful need to stand his ground than we place on life itself.

“Stand your ground” laws cost lives.  Our pride and our manhood should not be so fragile that we insist on engaging in deadly violence when we know we could retreat from it in complete safety.

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