Retreat and Surrender Duties

Retreat and Surrender Duties

Section 3.05(1) makes the three conditions of the justification subject to the rest of § 3.05 and to § 3.09, and the rest of § 3.05 means subsection (2), which applies notwithstanding subsection (1).¹ That subsection speaks to three duties that § 3.04 attaches to a person using force in self-protection: the duty to retreat, the duty to surrender possession of a thing to someone asserting a claim of right to it, and the duty to comply with a demand that the actor abstain from conduct he has no duty to perform. Under § 3.04 each of those duties applies only when the actor knows that doing it would let him avoid the need for force with complete safety.² Subsection (2) takes the duties as § 3.04 defines them and reshapes them for force used on another person's behalf.³

Subsection (2) matters only when a § 3.04 duty would otherwise apply, since an adjustment presupposes something to adjust. If the self-defense analysis under condition (a) shows that the actor would owe no duty to retreat, surrender, or comply, nothing in subsection (2) needs to be applied, and the rescuer's use of force turns on the other conditions alone. The content of the § 3.04 duties belongs to the study of self-defense, so this chapter takes them as given and asks only how defending another person changes them. The change is a reshaping that leaves the duties in place. The first two adjustments keep a duty alive in changed form, tied to what the actor knows about securing the complete safety of the person being protected, and the third carries the dwelling and workplace exception over to the home or workplace of either person.⁴

The reason for the reshaping lies in the purpose of the retreat duty. A duty to retreat exists in self-defense because the actor can often avoid the harm by stepping away with complete safety, which makes force unnecessary. When the threatened injury falls on someone else, the actor's own departure usually does nothing for that person, and a rescuer who could walk out of a room unharmed gains nothing for a friend pinned to the floor inside it. The Code therefore relaxes the duty unless the actor's retreat would secure the other person's complete safety. The logic also runs the other way: if the protected person could safely avoid the danger and the actor knows how to bring that about, force is not yet necessary, and the actor must first try that route.⁵ Tort law reaches a similar concern through a looser standard, in which the jury weighs whether an avenue of retreat existed and whether choosing it would have been reasonable, and some states have enacted stand-your-ground statutes that drop retreat requirements altogether.⁶ Subsection (2) fixes its adjustments in advance and keys each to the actor's knowledge. The next section begins with the first of them, the protector's own duty to retreat.

Protector's Retreat Duty

Section 3.05(2)(a) takes the duties to retreat, to surrender possession of a thing, and to comply with a demand, which § 3.04 places on a person defending himself, and removes them from the rescuer in the ordinary case. In its words, an actor who would be obliged under § 3.04 to retreat, to surrender possession of a thing, or to comply with a demand before using force in self-protection is not obliged to do so before using force to protect another person, unless he knows that he can thereby secure the complete safety of that other person.⁸ The provision is built as a default with one exception. The default relieves the rescuer of the duty, and the exception restores it in the single situation where the rescuer's own yielding would end the danger to the person he is protecting. The subsection comes into play only after condition (a) has shown that a § 3.04 duty would otherwise exist, since there is nothing to relieve or restore if no duty would have arisen.⁹

The default follows from why the duty exists at all. In self-defense a duty to retreat makes sense because stepping away can remove the threat to the actor himself, and force is unnecessary when the harm can be avoided with complete safety. When the threatened injury falls on someone else, the actor's departure usually changes nothing for that person. The defender's ability to retreat without risk to himself therefore should not control when the force is used to protect another party who cannot retreat.¹⁰ The same reasoning reaches the other two duties, because an actor who hands over a thing or gives in to a demand ordinarily ends the confrontation only as to himself, while the attack on the third person goes on. Insisting on any of these steps would leave the person the privilege exists to protect exposed to the attack.

The exception applies the same logic in reverse. The default rests on the assumption that the actor's retreat does nothing for the person in danger, and when that assumption fails, the reason for the default fails with it. An actor who knows that walking away, handing over the thing, or complying with the demand will secure the other person's complete safety has no need to use force, because the danger will end without it. Force that is unnecessary lacks the necessity on which the privilege rests, so the Code puts the duty back.¹¹

The two scenes differ in one fact, which is what the actor knows about the effect of his retreat. The exception turns on that knowledge and not on how events would objectively have unfolded. The Code's word is knows, which is narrower than a hope or a hunch that leaving might help, and the question is asked from inside the actor's head, as conditions (b) and (c) were.¹²

State statutes reach a similar result by different wording. North Dakota's self-defense provisions, reproduced in the state supreme court's opinion in State v. Leidholm, extend justification to lawful defense of others and bar deadly force that can be avoided by retreat with safety to the actor and to others.¹³ The words and others carry the point of § 3.05(2)(a), because a retreat that leaves the third person in danger is not a safe retreat for purposes of that statute. The wording differs from the Code in one respect: the statute asks whether the force can be avoided, and on its face it does not mention what the actor knew. On an exam, identify whether the problem is governed by the Code or by a statute worded like North Dakota's before deciding whose perspective controls.

On an exam, the usual error is asking whether the actor could have escaped safely himself. A stem will often stress that the rescuer had an open exit and was never in danger, and the temptation is to declare that he should have left. The actor's safe exit is not the question under § 3.05(2)(a), which asks whether he knew that leaving would secure the other person's complete safety. A second slip is to test the exception against what a retreat would actually have accomplished, when the text turns on what the actor knew.

Retreat by the Protected Person

Subsection (2)(b) of § 3.05 turns the retreat question around. Subsection (2)(a), covered just above, asks what the rescuer must do about his own retreat, while subsection (2)(b) looks at the person being protected. Its text provides that when the person the actor seeks to protect would be obliged under § 3.04 to retreat, to surrender possession of a thing, or to comply with a demand if he knew he could obtain complete safety by doing so, the actor must try to cause that person to do so before using force in his protection, provided the actor knows he can obtain complete safety in that way.¹⁵ The duty therefore rests on the rescuer, but its content is an effort to prompt someone else's retreat, such as a shouted direction toward an exit, and the rescuer stays where he is.

Two different kinds of knowledge are built into that sentence, and they are tested differently. The protected person's side is hypothetical: the question is whether § 3.04 would oblige him to retreat, surrender, or comply if he knew that doing so would give him complete safety. The hypothetical is needed because a person under attack often cannot see the exit or has no idea that stepping away would end the danger, and a duty that depended on his actual awareness would almost never arise. The Code supplies the missing knowledge in imagination and then asks whether § 3.04 would demand the retreat of someone who had it. That inquiry imports every limit found in § 3.04, because the retreat, surrender, and comply duties sit in its limitation on deadly force and carry an exception for the person's own dwelling or place of work, which an initial aggressor loses.¹⁶ The actor's side is actual rather than hypothetical: he must in fact know that causing the retreat will obtain complete safety, a demanding standard because the safety must be complete and the knowledge must be his own.¹⁷

The reason for placing this duty on the rescuer follows from the necessity that underlies all protective force. Force is justified only when it is needed, and if the protected person could reach complete safety by stepping through a door or handing over a disputed object, and the rescuer knows it, a word of direction can accomplish the protection without any force at all. The rescuer is the natural person to carry the obligation, because the one under attack is usually too frightened or too poorly placed to see the route, while the rescuer, by hypothesis, already knows it. Subsection (2)(b) is the mirror image of subsection (2)(a). There the rescuer's own departure ordinarily does nothing for the person in danger, so the duty to retreat is lifted, whereas here the protected person's departure would do everything, so the rescuer must try it first.¹⁸ The knowledge requirement confines the duty to cases in which a safe route is actually known, and it spares the rescuer from guessing about routes he cannot assess in the middle of an attack.

The obligation is to try to cause the retreat, which does not make the actor answerable for the result. If the attempt works, no force is needed and no justification question arises. If the friend cannot or will not move, the actor has done what subsection (2)(b) asks, and whether force is then justified depends on the remaining conditions of § 3.05(1).¹⁹

The two scenes differ in one fact, the actor's knowledge about whether the retreat would produce complete safety. In the first the actor knew, and in the second the actor had only a guess about a route that would have left the friend exposed to a gun. The Code's words are knows and complete safety, so a hope that the friend might escape, or a route that improves the friend's odds without ending the danger, does not trigger the duty.²⁰

These scenes differ in one fact, where the friend stands. The duty to prompt is derivative of the protected person's own § 3.04 duty, so it exists only if § 3.04 would oblige that person to retreat, surrender, or comply had he known a safe way, and a person at home who is not the initial aggressor owes no such retreat.²¹ Subsection (2)(c), taken up next, carries the dwelling and workplace point further by applying the exception to the home or workplace of either the actor or the person defended.²²

On an exam, the usual error is requiring a prompt whenever an escape route existed. A stem may stress that the friend could have run through an open door, and the temptation is to declare that the actor should have sent the friend that way. The duty arises only if § 3.04 would oblige the protected person to retreat and the actor knew that the retreat would secure complete safety. A second slip is to confuse this duty with subsection (2)(a), where the question is whether the rescuer's own retreat is required, while here the rescuer's duty is to try to cause the protected person's retreat. Only a few modern codes follow § 3.05(2) in this detail, so the specific duty to prompt should be applied when the problem invokes the Model Penal Code or a statute worded like it.²³

Dwelling and Workplace

Subsection (2)(c) of § 3.05 supplies the last adjustment to the retreat duties, and its text is short: neither the actor nor the person he seeks to protect is obliged to retreat when in the other's dwelling or place of work "to any greater extent than in his own."²⁵ The comparison in those closing words is the whole rule. Section 3.04 already provides that a person defending himself is not obliged to retreat from his dwelling or place of work, subject to two limits: he loses that relief if he was the initial aggressor, and he loses it if he is assailed in his place of work by someone whose place of work he knows it also to be.²⁶ Subsection (2)(c) carries that treatment across the line between the two people. A visitor who steps in to defend the person whose home it is, or an occupant who steps in to defend a guest, is measured against what each would owe on home ground. The exception therefore applies when the place is the dwelling or place of work of either the actor or the person defended.²⁷

The reason for the extension comes from why § 3.04 excuses retreat from home at all. A dwelling or workplace is a place the person has a right to be, and a duty to leave it would hand the place over to the attacker and ask the victim to give up that right. Section 3.04 words its exception around the person's own place, excusing retreat from "his dwelling or place of work."²⁸ Read alone, that wording would leave a guest, or a protected person who is the guest, without home-ground relief, because the premises belong to someone else. The interest in not being driven out of a lawful position does not depend on who holds title, so subsection (2)(c) closes the gap. It also works as a limit on subsections (2)(a) and (2)(b), which both begin from what § 3.04 would require. Where § 3.04 would excuse a retreat from home, (2)(c) keeps the other person's premises from supplying a duty that the actor's own home would not. The fuller doctrine of dwelling defense belongs with self-defense and defense of property, so the only question here is how the home and workplace treatment travels between two people.

The two scenes differ in one fact, the place where the attack occurs. In the first, the setting is a dwelling of one of the two people, so the home treatment extends to the actor. In the second, no dwelling or workplace is involved, so there is nothing to extend.²⁹

Because the standard is "to any greater extent than in his own," the limits that come with § 3.04 come along too. An actor who would have forfeited home-ground relief as the initial aggressor does not gain it by standing in someone else's house, and the same is true of a worker in the co-worker situation described above.³⁰ State statutes may draw those limits differently. North Dakota's provision, reproduced in the opinion in State v. Leidholm, denies the no-retreat rule to a person who was the original aggressor or who is assailed by someone he knows also dwells or works there.³¹ The Code's text applies the co-occupant limit only to the place of work, so a dwelling shared with the attacker does not by itself restore a retreat duty under § 3.04.³² On an exam, identify whether the Code or a statute worded like North Dakota's governs before deciding which limits travel with the actor.

On an exam, the usual error is requiring a guest to retreat because the home is not his. A stem may stress that the actor was only visiting and had an open door behind him, and the temptation is to declare that he should have left. Subsection (2)(c) measures the visitor against his own home, where no retreat would be required. A second slip is to treat the subsection as a justification in itself, when it only adjusts the retreat duty and leaves the necessity and belief conditions of § 3.05(1) to decide whether force was justified.³³