Police crime scene
(AP Photo/Andrew Harnik)
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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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41 COMMENTS

  1. Personal Defense: Duty to Retreat, Stand Your Ground, Castle Doctrine – Do You Know the Difference?

    Why yes, yes I do.. But thanks for asking… I do hope there some new gun owners that can find this information useful but if there is anyone reading this that didn’t already know at least those laws then they should immediately divest themselves of ALL weapons (guns, knives, bats, hammers, large flashlights etc..)

    • ALL weapons?

      Don’t forget boots, belts, shoelaces, glasses, pens, bottle openers, long-sleeved garments….

      • ETC; etcetera (adverb)
        used at the end of a list to indicate that further, similar items are included.
        indicating that a list is too tedious or clichéd to give in full.
        Pretty much covers ALL that plus pencils, socks full of quarters, chain saws, lawn mower blades, attack dogs, light sabers, slingshots, cows femur, cork screw, glass bottle, lead pipe, D cell batteries in a sock, spray bottle full of ammonia and any and ALL items that mans imagination can conjure a way to use to kill or do serious bodily harm to anyone or anything else… Next time I’ll try to be more specific….

  2. Thanks. This is a great introduction for newbies and a helpful refresher for the rest of us.

  3. Reasonable people are in short supply these days. If you go to trial there is a good chance the jury will sympathize with the hood and view you as a vigilante. The sorros backed DA will make an example of you.
    Let’s all Hope we are not forced to confront anyone, especially a mob in front of the house with rocks and gasoline bombs.

  4. Regardless f the law, an over zealous DA might charge you anyways even though it is almost undisputable that it was self defense.
    Even though you might be found innocent, let’s be clear, it can ruin your life trying to defend yourself.

    • It’s correct to say, Daniel, that it can ruin your life trying to defend yourself. But it’s even more correct to say that NOT defending yourself can be an immediate end to your life.

      I don’t trust the “justice” system. Nobody should. But I trust a street thug even less. If push comes to shove, I’ll take my chances in court.

    • let’s be clear, it can ruin your life trying to defend yourself.

      That’s why I carry $250.000 legal defense and $2,000,000 liability insurance… Best $300 I’ll spend this year and I recommend it to anyone who carries a gun WITH the intent to use it.. (yes there are those who carry a gun just to say they carry and have neither the will nor the balls to use it)…

    • “…Even though you might be found innocent, let’s be clear, it can ruin your life trying to defend yourself…”

      Witness what Kyle is going through even though guys were trying to off him, one with a skateboard upside the head. A DA wanting a name for himself no less.

      Then there is the civil side. Some States have put laws in place to stop the civil lawsuits, others have not.

    • I knew of a case where the defender became a defendant despite there being absolutely no doubt that resort to lethal force was completely justified. The prosecutor went after the guy on the basis of the ammunition he’d used: he happened to have his .357 loaded with wad-cutter rounds, and the prosecutor argued that the guy had deliberately designed to do cruel and excessive damage.
      Fortunately the guy had been on his way home from a shooting range where his name was on the sign-in sheet, which explained why he had wad-cutters loaded; even more fortunately, the defense attorney knew two sheriff’s deputies who also used wad-cutters for practice — and who testified that they also left the range fairly often with those rounds still loaded. The jury decided it was unreasonable to expect a regular citizen to change out loads before leaving a range if law enforcement didn’t always do so.
      But local gun shops posted a warning after that case to always check that you have ammunition appropriate to self-defense, and because of another case in the next county over, that your self-defense ammo not be home-loaded.

  5. Long story short…If both of your feet are not in bounds with self defense laws you could wind up in the cross bar hotel with hundreds of dirtbags just like the one you smoked.

    • whatever….. sheesh….. I’m not scared of the “dirtbags”…. you obviously are, but i’m not…
      plus i’ll play the whole thing like a liberal would…. good luck to the po po…

      • i’ll play the whole thing like a liberal would

        So you’ll either shoot a guy in the back based on what you THINK he MIGHT do or, if confronted, you’ll fall down and curl up in a fetal position begging the bad man to not hurt you?

  6. HAVE USCCA AND READ / VIDEOS ON MY RIGHTS AS WHAT TA DO .
    ITS HELPS TO KNOW , HOWEVER AS A COMBAT VET , I KNOW MURRHYS LAW COME INTO PLAY ALSO .
    STAY SAFE AND ALERT YA ALL .

  7. “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.”

    A list of states I’ve no interest in visiting or living in, considering how very low a priority my personal safety is to the lawmakers in those states.

  8. possum takes the coyote approach, run like hell when you can, fight like a demon when you cant. If I ever have to use a gunm for my defense a law about what I can and cannot do is not on the list.

  9. As of today Governor Asa Hutchinson has signed a bill bringing a “stand your ground” law to the state of Arkansas.

  10. Just a friendly reminder to CLEAN THAT SELF DEFENSE AMMUNITION….. CLEAN IT VERY VERY WELL….. KEEP IT CLEAN AND FREE OF DEBRIS….

    • KEEP IT CLEAN AND FREE OF DEBRIS….

      And wear rubber gloves when loading magazines, keep those shell casings fingerprint/DNA free…

  13. Anyone who carries a gun should have “carry insurance”
    Everyone calls it insurance, yet they are really prepaid legal plans and not an insurance product at all.
    Mad Max, while I applaud you for having carry insurance, A $250,000 limit is way too low.
    That will get you thru to trial for a brandishing charge, but it’s not enough to defend against manslaughter or murder charges.
    For a murder charge, you will need at least $500,000 to get to trial.
    You will need expert witnesses, investigators, trial exhibits, legal and medical consultants.
    And if you are convicted of brandishing, you will need another $250,000 for the appeals process.
    I am with Ccw Safe, and they have no limit on the amount to be used for your defense.
    They also have no limits for appeals and they cover red flag accusations as well.
    It’s also relatively inexpensive in the $400 per year range.
    Plus as near as I can tell, they are the only carry insurance company to successfully defend a murder charge at trial.

  14. the author states, “ That’s why you should always confer with an attorney before speaking to the police.”

    other attorneys say that is horrible advice. they say variants of: be the first to call the police, tell the police you feared for your life, and then tell them you need an attorney before making a further statement.

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