The current state of both duty to retreat and stand your ground laws are a direct result of the late 20th century social and criminal justice movements. Duty to retreat was originally the law of self-defense in most western societies. The idea of stand your ground began with the castle doctrine, a law that allowed for an individual to defend themselves in their home only. Such doctrines date back to the 1600s and were the only exception to the general duty to retreat laws. Americans began moving the boundaries of the ''castle'' following the Civil War, with individual cases allowing for self-defense outside the home in specific circ*mstances. Further exploration and enactment of home self-defense laws, along with lobbying by the National Rifle Association (NRA) in the 1980s, sparked a desire for permission to use deadly force outside of the home. Scholars believe that this interest was sparked by expanded interests in gun ownership. The first stand your ground law was passed in Florida in 2005.
Duty to Retreat: Adoption and Implementation
Duty to retreat laws have been established by some states in an effort to reduce fatal violence. Duty to retreat was once thought of as the default self-defense law as established by colonial England, but following the rise of no duty to retreat laws, states began adopting explicit duty to retreat laws. Although these laws do not prohibit fatal self-defense in the home, their goal is to result in less violence in all other threatening situations. States that have duty to retreat laws include:
- Connecticut
- Delaware
- Hawaii
- Maine
- Maryland
- Massachusetts
- Minnesota
- Nebraska
- New Jersey
- New York
- Rhode Island
Stand Your Ground: Adoption and Implementation
Some states have no duty to retreat, which includes both castle doctrine and stand your ground laws. Thirty-eight states have enacted stand your ground laws, with many having guidelines that require that the perceived threat must be reasonable, and the force used must be proportional. After Florida established its stand your ground law in 2005, many other states followed suit. States with no duty to retreat laws include:
- Alabama
- Alaska
- Arizona
- Florida
- Georgia
- Idaho
- Indiana
- Iowa
- Kansas
- Kentucky
- Louisiana
- Michigan
- Mississippi
- Missouri
- Montana
- Nevada
- New Hampshire
- North Carolina
- North Dakota
- Ohio
- Oklahoma
- Pennsylvania
- South Carolina
- South Dakota
- Tennessee
- Texas
- Utah
- West Virginia
- Wyoming
The remaining states not included on this list have adopted doctrines similar to stand your ground through the interpretation of their self-defense laws. However, these states have neither explicit stand your ground laws nor no duty to retreat statutes. Others not included in either list have no explicit laws regarding stand your ground, but court precedent has supported stand your ground guidelines.
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Both stand your ground and duty to retreat laws receive public criticism. Following the discourse surrounding armed self-defense in the 1980s, some Americans view armed self-defense as a fundamental protection under the Second Amendment of the Constitution. They believe that preventing individuals from standing their ground will cause more violence, despite evidence suggesting otherwise. Some are also concerned that in some situations, it is difficult to determine if a safe retreat is possible, and a split-second decision can mean the difference between life and death. This led to many states adopting no duty to retreat laws following Florida's initial adoption of a stand your ground law in 2005. These views have led lawmakers to ask the question: Duty to retreat or no duty to retreat?
Duty to Retreat or No Duty to Retreat?
No duty to retreat describes laws that explicitly remove the duty to retreat, which includes stand your ground laws and castle doctrine. The goal of removing the duty to retreat is to prevent further criminal victimization. Because lawmakers have created laws that already extensively cover self-defense when safe retreat is not possible, no duty to retreat laws only apply when safe retreat is either possible or ambiguous. Lowering the legal risk of using deadly force can be tricky for lawmakers to balance without unintentionally causing more injuries or homicides. Alternatively, such laws may serve to discourage violent crime and help reduce crime rates. However, current research seems to support the former, showing an increase in homicides.
Stand Your Ground: Criticism
Stand your ground is criticized for being shown to increase firearm homicides, allowing individuals with violent criminal histories a ''free pass'' for taking a life (sometimes after initiating the altercation). It is argued that stand your ground laws encourage violence even when a situation allows for a safe retreat. Critics also point to research that suggests that stand your ground laws are unfairly applied between white and Black individuals, with white individuals being offered more consistent protection and Black individuals finding themselves guilty of murder in obvious self-defense cases. Stand your ground laws can be legally challenging as self-defense can be difficult to prove, with court precedence sometimes ruling differently on similar cases. When differentiating between a murder being ruled a homicide vs. self-defense, the difference is the presence of intent. In this case, intent is the criminal intention to kill someone. Intent is difficult to prove in court, however, as there is often little evidence to show the thoughts of an individual. Because of these issues, some states have considered repealing their stand your ground laws, such as Florida.
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Duty to retreat is the legal responsibility for an individual to retreat from a dangerous situation if a safe retreat is possible. Stand your ground laws dictate that an individual may use deadly force when threatened, so long as the threat is reasonably perceived, and the force used is proportionate. These laws address the legal idea of self-defense, or the right to defend oneself when threatened. To be considered self-defense, there must be (1) an unprovoked attack, (2) an attack that threatens imminent injury or death, (3) defense with a reasonable degree of force, and (4) defense in response to a reasonable assumption of imminent injury or death. These modern laws developed from castle doctrine, an ancient law that allowed for deadly use of force in the case of home defense. No duty to retreat describes laws that explicitly remove the legal requirement to retreat if possible, such as the castle doctrine and stand your ground laws. When differentiating whether a case would be considered a homicide or self-defense, the intent of the perpetrator must be considered.
There are criticisms of both of these laws. Critics of duty to retreat argue that it is not always clear if a safe retreat is possible and that disallowing armed defense in any capacity infringes on Second Amendment rights. Critics of stand your ground laws argue that not requiring retreat when possible encourages more violence and ultimately leads to more homicides. Because of the controversy surrounding these guidelines, some states have opted to adopt stand your ground laws, while others have decided to adhere to duty to retreat guidelines.
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Additional Info
Just Defending Myself
What if someone tried to kill you with a knife, and you defended yourself and shot the attacker, but then later you were arrested and charged with murder? Does this make sense? Don't you have the right of self-defense?
Unlawful Killing
The difference between a first-degree murder conviction and a negligent homicide is the level of criminal intent, (desire to commit a crime) that the defendant had when the crime was committed. For example, a first-degree murder charge requires premeditation as the level of intent, whereas if someone was only acting unsafe or negligent, then the charge might be involuntary manslaughter.
Self-Defense
The same law that prohibits murder also allows for the defense of justification, which means that an unlawful killing did occur, but it was justified for some reason. The most common of these is self-defense. If this is the case, then the killer will not be liable for their actions. Self-defense can also be used in assault cases or any violent crime.
A typical self-defense law requires:
- An unprovoked attack ( the person can't be the aggressor).
- The person reasonably believed that they were in imminent danger of death or serious bodily injury.
- The use of force was reasonable when weighed against the threat.
For example, let's say Joseph was attacked by Ben, who tried to stab him with a knife. Joseph pulls out a gun and shoots Ben, who didn't know he brought a knife to a gunfight, and he died. The law against murder could put Joseph away; he committed an unlawful killing, with the intent to inflict great bodily harm, when shot Ben.
However, the self-defense statute also allows Joseph to not be held liable for the charge, if he did so, in accordance with the elements of self-defense, which he did. So Joseph would not be convicted of killing Ben. The reasoning here, is again, connected to the level of criminal intent. Even though a person's actions might indicate the intent to kill someone, their intent was driven by self-preservation, and not an evil desire to do harm.
Additional Elements
Most self-defense laws have the requirement that the killer was not the aggressor. This prevents someone who started the attack, from being able to claim self-defense, when the victim got the upper hand in the fight. The idea is that if you started it, you can't claim self-defense if you kill the person because they fought back.
Duty to Retreat
Some states also have other requirements for self-defense. One of these is the duty to retreat. This adds an element to self-defense that requires the killer, or one claiming self-defense, to retreat before using deadly force, but only if retreat is possible and wouldn't put the person in continued, or greater danger.
For example, if Ben pulled his knife on Joseph, who pulled his gun, this law would require Joseph to retreat if he could, but only if doing so wouldn't be dangerous to him. If Joseph was backed up to a busy highway, or a cliff, then retreat is not an option. But if it's open behind him, and he is safely outside Ben's knife reach, he would have to try and retreat before he would be allowed to shoot Ben.
Proponents of this requirement say that it's needed to reduce violence, in cases where there was a clear path to de-escalate the violence. Opponents say that this is an unreasonable hurdle, to the right to defend one's self. It's not always clear when a retreat is possible, and it may not always be known when it's safe to do so until it's too late. Opponents may also argue that the attacker was the aggressor, and shouldn't be protected by a duty to retreat law.
Stand Your Ground
Other jurisdictions not only remove the element of the duty to retreat, but they have a law that allows someone to stand their ground. This law simply states that a person doesn't have a duty to retreat, so long as they weren't the aggressor, and reasonably believed they were in danger, and used only the force necessary to stop the threat.
Proponents of this law say that it is needed to prevent the conviction of a person who didn't feel that a retreat, away from the aggressor, was possible. Opponents say this gives too much power, to a person who could easily reduce the confrontation by just retreating, and de-escalating the incident.
Lesson Summary
A criminal homicide is the unlawful killing of another with a certain level of criminal intent, which is the level of desire to commit a crime. The difference between first and second-degree murder, for example, is the level of intent the killer had when the killer unlawfully took the life of another person. This same reasoning allows for the defense of justification to the charge of a criminal homicide, or an assault. If a person did the killing or injuring, because they only wanted to protect themselves, then the law will not hold them liable for the crime.
Self-defense is allowed when a person is not the aggressor, felt that they were in danger of death or great bodily harm, and used only the level of force necessary for the purpose of protection. Some states require that before a person can claim self-defense, they have a duty to retreat, which means that if the possibility of retreat exists, and doing so wouldn't put the person in danger, then they must take that option before using deadly force.
Other jurisdictions reject this and have a law that gives a person the right to stand their ground. This means that if they were not the aggressor, and believed they were in imminent danger of death or great bodily harm, and they used reasonable force, then they did not have any duty to retreat.
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