Self-defense And The Duty To Retreat

[Sojourner]

So I have been doing research in this area lately, and am interested to hear what people think about it.

Self-defense laws in a majority of states include no duty to retreat (if possible) before using deadly force, although the use of deadly force must always be a reasonable reaction in a given situation.

The breakdown has shifted in recent years -- 15 states in the past 2 years adopted "stand your ground" or "shoot first" laws (depending on which side of the debate you're on), and several more states are thinking about adopting such laws.

The laws are often being couched as "castle doctrine" laws, or defense of home, although the no-retreat provisions typically do not have a geographic limitation. A person does not need to retreat as long as he or she is in a place where he or she has a lawful right to be. Most states already have common law (not codified) provisions eliminating a duty to retreat in the home.

So ... I am wondering where people stand on this. I am really not quite sure what I think. Are these laws good or bad?

[Paddington]

Terra Firma,

That is a really fascinating issue. I personally wonder if there are any "perfect laws" in general. But, I still believe that we need lots of laws. I guess that makes me not an anarchist. *shrug* From the whole legal side of it, at least invaders have the warning. Although, people should try not to injure an invader. That is definitely a moral issue. I know there are people in the "gun nut" crowd that think it is great to shoot an invader. (Their fantasy?) I heard one of them (a Christian, but Protestant of course ) talking joyfully about how people should shoot a criminal at the doorstep and then drag the body inside a little so that he could say it was an invader.

Peace,
Paddington

[Mercy me]

These laws don't require a duty to retreat but they do require proof that you are in a defensive possition and the threat be serious. I live in Florida where we have the type of law to which you refer. They take this very seriously and there had better be ample evidence of the threat or it will be you headed to jail.

Several years back when I lived in an apartment, a woman in my parking lot was carjacked in the parking lot. She was able to reach her gun and drive the criminal away with just the sight of a gun. There is no option for retreat when someone steps out from behind something effectively cornering a victim and attempts something like this. If retreat were written into the law and a shot had been fired who knows what would have happened. (I no longer live there but this incident that happened right 4 feet from my window did color my perception of things.)

[Sojourner]

Typically when retreat is written into the law it is an "if reasonably possible" thing ... that your first thought should be "retreat" and not to use some form of deadly force, be it gun, knife, fists, whatever.

The scary thing about the laws as written is that it creates a presumption of intent to do serious harm/murder/rape when someone forcefully or stealthily enters a home. Under the law as written, it seems to create the possibility that if you were driving down the road with a TV in the back seat of your car, and some kid opened the back door to steal the TV, you would be justified in the use of deadly force because of the presumption created. It's assumed that the use of deadly force is reasonable, and therefore justified.

[Winchester]

If you have the opportunity to remove an unjust aggresor and do not take it for whatever reason, you give him the opportunity to do it again.

[journeyman]

Many criminal laws have a moral ancestor
The God of Moses covered it with two lines - thou shalt not kill; thou shalt not covet.
If everyone followed those two precepts, the question of whether or not the use of defensive force is reasonable would never come up.

For those with a "pro-life" orientation, it seems like it would be a "no brainer" "Vengeance is mine" saith the Lord. Retreat preserves the life of the believer and leaves the malefactor to divine mercy.

By styling the statute as a "castle" doctrine, there is an implicit (or perhaps explicit) finding that property rights receive preferential treatment over human rights.

The modern legislator seems to be balancing the American constitutional right to "life, liberty and property" on a "three strikes and you're out" scale. By engaging in anti-social behavior, the invader is presumed to have forfeited any right to a presumption in their favor, and the "target" gets the benefit of a presumption that they are "defending" their life, even if the malefactor was only interested in their property.

Especially as many of these incidents occur during the night, when the castle's defender really can't see whether or not the invader has a weapon, the presumption may work for those with little experience with firearms, nervous personalities, poor vision and the like. The presumption should not be nearly as strong in favor of retired military, off-duty law enforcement, or others with a good working knowledge of strategy, tactics and firearms. Anyone wearing night vision goggles should get no benefit from the presumption. (the jury is still out on whether simply bearing the name Winchester entitles one to a presumption)

With the use of projectile weapons, even retreat is no guarantee of safety. Very few of us can outrun a bullet.

Legisltors are leaning toward the point of view that you should not be forced to leave the presumed safety of your castle in order to meet some "duty" owed the invader, who by reason of the invasion has removed themself from the ranks of those deserving society's protection.

I suspect actually doing some research might strengthen or disprove some of the above opinions.

[Socrates]

Since I'm no expert in these laws, it would help if it were more clearly explained exactly what the laws in question say.

Personally, I see no reason why we should be so concerned with the "rights" of burglars and other criminals.
Those who freely chose to unlawfully break and enter do so at their own risk. They get what they deserve.

And it seems that it can be extremely difficult to determine exactly who was in a defensive position, was threatened, etc.
Are people supposed to wait until an unlawful invader actually pulls a gun before taking any action against him?

If someone has a legitimate purpose for entering another's property, he can use the front door. Otherwise, he should stay the hell away!

It sickens me the way liberals spend all their time crying over the plight of thieves, murderers, and rapists, yet care little for the rights of the innocent.

[journeyman]

[quote name='Socrates' post='1165020' date='Jan 14 2007, 11:50 PM']
Since I'm no expert in these laws, it would help if it were more clearly explained exactly what the laws in question say.

Personally, I see no reason why we should be so concerned with the "rights" of burglars and other criminals.
Those who freely chose to unlawfully break and enter do so at their own risk. They get what they deserve.

And it seems that it can be extremely difficult to determine exactly who was in a defensive position, was threatened, etc.
Are people supposed to wait until an unlawful invader actually pulls a gun before taking any action against him?

If someone has a legitimate purpose for entering another's property, he can use the front door. Otherwise, he should stay the hell away!

It sickens me the way liberals spend all their time crying over the plight of thieves, murderers, and rapists, yet care little for the rights of the innocent.
[/quote]

The text is always helpful in analyzing statutes.

If I trusted the individuals who serve in government more, I might care less about the rights of the individuals accused . . . (power corrupts, absolute power corrupts absolutely)

Specific facts are the basis for the maxim that "hard facts make bad law" (hence the apocraphyl story related earlier on that after the intruder has been dealt with, the body needs to be found inside the house)(and anyone who tampers with the evidence to better fit within their understanding of the law is well on their way to losing the status of "victim")

It is precisely the concern for the innocent that makes me reluctant to call anyone guilty until and unless the charge is proven by evidence beyond the shadow of a doubt, or at least beyond a reasonable doubt . . . an evidentiary burden that the government can not always meet

[Sojourner]

Here's an interesting fact situation I recently ran across:

A 74-year old man, community leader in his small town, recently saw some people he recognized as having tried to steal gas and a radiator from his neighbor a few days earlier. He called police, but then also started chasing after the alleged thieves, brandishing a shotgun and threatening to shoot them and their vehicle. The man is not a police officer. The couple in the car had a 3-year-old child in their back seat.

A couple of questions:
Under laws recently enacted in several states under the category of self-defense/defense of property, had the man caught the couple attempting to steal gas on his own property, he would theoretically be justified in using deadly force against them. Is this outcome just?

Then, as Socrates so eloquently stated earlier, there is the question of who should be charged here. On one hand, the couple was attempting to steal gasoline and a radiator. On the other, they were threatened with a deadly weapon. Who should be charged?

[SJRod55]

It is not the 'rights' of the criminals that are the only concern. Even police officers are restricted in 'hot pursuit' instances in many states and countries. It is not just a matter of chasing after the bad guy. There are the hundreds of totally innocent people who enter into this scene from start to conclusion who 'might' become victims if either car loses control or deliberately involves other people. Police officers are supposed to be trained in hot pursuit and yet there are frequently tragic accidents. Despite the over coming vigilante instinct we must temper this with caution.

[ardillacid]

[quote name='Terra Firma' post='1192723' date='Feb 12 2007, 06:02 PM']
Here's an interesting fact situation I recently ran across:

A 74-year old man, community leader in his small town, recently saw some people he recognized as having tried to steal gas and a radiator from his neighbor a few days earlier. He called police, but then also started chasing after the alleged thieves, brandishing a shotgun and threatening to shoot them and their vehicle. The man is not a police officer. The couple in the car had a 3-year-old child in their back seat.

A couple of questions:
Under laws recently enacted in several states under the category of self-defense/defense of property, had the man caught the couple attempting to steal gas on his own property, he would theoretically be justified in using deadly force against them. Is this outcome just?

Then, as Socrates so eloquently stated earlier, there is the question of who should be charged here. On one hand, the couple was attempting to steal gasoline and a radiator. On the other, they were threatened with a deadly weapon. Who should be charged?
[/quote]
According to the Star Tribune, his shotgun was empty.

[homeschoolmom]

I think he was really hunting squirrels.

[Sojourner]

[quote name='notardillacid' post='1193750' date='Feb 13 2007, 01:17 PM']
According to the Star Tribune, his shotgun was empty.
[/quote]
legally that doesn't matter

but good googling skillz

[homeschoolmom]

[Sojourner]

[quote name='Rod' post='1193457' date='Feb 13 2007, 10:10 AM']
It is not the 'rights' of the criminals that are the only concern. Even police officers are restricted in 'hot pursuit' instances in many states and countries. It is not just a matter of chasing after the bad guy. There are the hundreds of totally innocent people who enter into this scene from start to conclusion who 'might' become victims if either car loses control or deliberately involves other people. Police officers are supposed to be trained in hot pursuit and yet there are frequently tragic accidents. Despite the over coming vigilante instinct we must temper this with caution.
[/quote]
I agree. I think there's a tricky balance here, between empowering people with a legitimate right to defend themselves and their loved ones while not encouraging vigilante behavior.