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Duty to retreat
Clayton Cramer has a posting on a NY case on self-defense.
NY follows the "retreat" requirement: a person cannot claim self-defense if they did not "retreat to the wall" (first try to escape, unless cornered). There is an exception for a defender in his/her own residence: your home is your castle and you need not retreat out of it. The NY decision says that a person standing in the doorway of his apartment is not "in his castle" and must retreat. (The defender and the deceased apparently had a longstanding feud -- the deceased had stabbed the defender in the past and put him in the hospital for two days. This time the defender apparently began the dispute by pounding on the wall between the apartments: the deceased came over and "got his his face," and he hit him with a pipe.
Don Kates once made an interesting observation with regard the "retreat" requirement (which some states, such as Arizona, do not impose).
Don's observation was that if we look at the common law in full context, we see a different picture. At common law, a person was permitted to kill to prevent a felony. No requirement of retreat, or anything like it. So if the aggressor was trying to rob, rape, burglarize or kill you, no retreat was required and in fact you wouldn't plead self-defense in those cases.
The self-defense claim would only come up in a brawl situation, where two non-felons got into a fight with no other criminal purpose. In that context, it made sense for the law to require that a person try to break off the fight off the fight, if possible, before using lethal force.
Comments
The "retreat" requirement is interesting. The news in Columbus, Ohio today is that a man was stabbed to death in his car in a case of road rage. The victim did not have a firearm, and his passenger was unable to get out of the car to help because passengers in the assailants car blocked his exit. But if he did have a gun, at what point would he be justified in using it (assuming he was able to miraculously remove the firearm and ammunition from their separate, locked compartments)? Would he have to actually get stabbed once first?
Also Don's "common law" argument reminds me of a favorite passage from John Locke I thought worth sharing:
Thus a thief, whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill, when he sets on me to rob me but of my horse or coat; because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which, if lost, is capable of no reparation, permits me my own defence, and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable.
Posted by: Howard Brooks at April 5, 2005 12:16 PM
Florida is getting a new bill -- it's called 'stand your ground' ... The right to self defense is expanded in Florida. Note that most of the bill's provisioned had already been litigated by the FL courts.
Story is filed by al-rooters in the 'oddly enough' category so it will get the most possible exposure -- don't you think?
http://www.reuters.com/newsArticle.jhtml?type=oddlyEnoughNews&storyID=8092681&src=rss/oddlyEnoughNews
Posted by: bill at April 5, 2005 12:30 PM