Also known as: duties to retreat · retreat doctrine · duty of retreat
Written by attorneys — see sources below.
A rule in self-defense law that requires a person to withdraw from a confrontation before using deadly force if the withdrawal can be accomplished in complete safety. The rule applies only in a minority of jurisdictions and is subject to exceptions that eliminate the obligation entirely.
Carlos lives in the upstairs unit of a duplex. Maya breaks a window and climbs into the shared foyer, then advances up the stairs toward his door while shouting threats. Carlos draws a handgun and shoots her. In a retreat jurisdiction the home exception removes any duty to retreat, so Carlos may stand his ground inside the dwelling without first shutting or locking his door.
Miguel is in his barn office when Darryl shoves him into a desk and advances while raising a heavy chain. Miguel seizes a pitchfork and drives it into Darryl's chest. The jurisdiction's rule creates a robbery exception to retreat, so Miguel need not attempt to leave the office before using force.
Luis lives year-round in the cabin of his moored vessel. A deckhand forces open the cabin door and charges toward the bunk. Luis stabs the intruder with a knife. Because the cabin functions as Luis's dwelling, the home exception eliminates any duty to retreat even though Luis could have left the vessel.
Justus Rosemond participated in a drug transaction arranged by Vashti Perez to sell a pound of marijuana to Ricardo Gonzales and Coby Painter. Perez drove to a local park accompanied by Ronald Joseph and Rosemond to complete the exchange. Upon arrival, Gonzales entered the backseat of the vehicle to inspect the marijuana while Painter remained outside. Instead of paying, Gonzales punched the backseat passenger and fled with the drugs. As Gonzales and Painter ran away, one of the male passengers exited the car and fired several shots from a semiautomatic handgun before the three individuals pursued the buyers in their vehicle. A police officer responding to a dispatcher's alert pulled over the car before the pursuers could catch Gonzales and Painter. The Government subsequently charged Rosemond with violating 18 U.S.C. §924(c) by using a gun in connection with a drug trafficking crime or, alternatively, aiding and abetting that offense under 18 U.S.C. §2. Because the identity of the shooter remained disputed, the prosecution pursued both theories at trial: that Rosemond himself fired the weapon or that he aided and abetted Joseph's use of the firearm. At trial, the District Judge instructed the jury on aiding and abetting principles. A person aids or abets if he willfully and knowingly associates himself with the crime and seeks by some act to help make it succeed. The judge further instructed that Rosemond could be convicted of aiding and abetting the §924(c) offense if he knew his cohort used a firearm in the drug trafficking crime and knowingly and actively participated in the drug trafficking crime. Rosemond had proposed an alternative instruction requiring that he intentionally took action to facilitate or encourage the use of the firearm specifically. The jury convicted Rosemond of the §924(c) violation along with other offenses, resulting in a consecutive 120-month sentence for that count. The Tenth Circuit affirmed the conviction, upholding the District Court's aiding and abetting instructions against Rosemond's challenge. The Supreme Court granted certiorari to address the requirements for aiding and abetting liability under these circumstances.
View caseLena lives alone in a tiny house. Mark forces his way through the only door and corners her against the kitchen sink. Lena grabs a rifle and shoots him. The attack occurs inside her dwelling, so the home exception removes any duty to retreat through a window or other route before using deadly force.
This was a writ of error to a judgment of the Circuit Court of the United States for the Western District of Arkansas sentencing the plaintiff in error to death for the murder of Philip Henson, a white man, in the Cherokee Nation of the Indian Territory. The defendant was tried and convicted in 1893, and upon such conviction being set aside by this court, 150 U. S. 551, was again tried and convicted in 1894. The case was again reversed, 157 U. S. 675, when Allen was tried for the third time and convicted, and this writ of error was sued out. The facts are so fully set forth in the previous reports of the case that it is unnecessary to repeat them here. We are somewhat embarrassed in the consideration of this case by the voluminousness of the charge, and of the exceptions taken thereto, as well as by the absence of a brief on the part of the plaintiff in error.
View caseGerald returns to his rented townhouse and finds Roger rifling drawers. Roger advances while holding a metal object. Gerald strikes Roger with a brass lamp. The long-term exclusive residential use qualifies the townhouse as Gerald's home, so the home exception eliminates any duty to retreat down the hallway before using deadly force.
On July 21, 1983, petitioner Earline Martin and her husband, Walter Martin, argued over grocery money. Petitioner claimed that her husband struck her in the head during the argument. Petitioner's version of what then transpired was that she went upstairs, put on a robe, and later came back down with her husband's gun which she intended to dispose of. Her husband saw something in her hand and questioned her about it. He came at her, and she lost her head and fired the gun at him. Five or six shots were fired, three of them striking and killing Mr. Martin. She was charged with and tried for aggravated murder. She pleaded self-defense and testified in her own defense. The judge charged the jury with respect to the elements of the crime and of self-defense and rejected petitioner's Due Process Clause challenge to the charge placing on her the burden of proving self-defense. The jury found her guilty. Both the Ohio Court of Appeals and the Supreme Court of Ohio affirmed the conviction. Both rejected the constitutional challenge to the instruction requiring petitioner to prove self-defense. The latter court, relying upon Patterson v. New York, concluded that the State was required to prove the three elements of aggravated murder but that Patterson did not require it to disprove self-defense. The court said, "the state proved beyond a reasonable doubt that appellant purposely, and with prior calculation and design, caused the death of her husband. Appellant did not dispute the existence of these elements, but rather sought to justify her actions on grounds she acted in self defense." The Supreme Court granted certiorari, 475 U.S. 1119 (1986).
View caseThe duty applies only when a person seeks to use deadly force in self-defense and can safely retreat. It does not apply to nondeadly force and is eliminated by recognized exceptions such as an attack inside the defender's own home.
Supporting sources
No. The exception turns on whether the location functions as the defender's dwelling. Long-term exclusive residential use, payment of rent, and storage of personal belongings establish the necessary status even when title is held by another party.
Supporting sources
In a retreat jurisdiction the failure defeats the self-defense claim unless an exception such as the home or workplace rule applies. The jury must determine whether the defender honestly and reasonably believed safe retreat was impossible.
It depends on the jurisdiction's rule. Some formulations relieve the duty at a place of work unless the actor was the initial aggressor or the assailant also works there and the actor knows that fact.
Supporting sources
…bodily harm, and that her only means of escape from such danger was in the use of . . . force,” and (3) she “did not violate any duty to retreat or avoid danger.” Ibid. Martin argued that due process did not permit the State to impose the burden of proving self-defense on her, because proving self-defense would necessarily negate…