Also known as: retreat requirements · duty to retreat
Written by attorneys — see sources below.
A rule in minority jurisdictions that requires a person who seeks to use deadly force in self-defense to retreat as far as reasonably possible if the retreat can be accomplished in complete safety. The duty applies unless a recognized exception eliminates the obligation to withdraw.
Rebecca Ross stood inside her duplex apartment when Victor forced open the locked front door and rushed into the living room. She drew her handgun and shot Victor without moving toward a back exit. The attack occurred in her own dwelling, so the retreat requirement did not apply and her self-defense claim remained available.
Rowan Russell faced an advancing coworker holding a heavy wrench in their shared service bay. She picked up a tire iron and struck the coworker once on the arm without attempting to exit through an open side door. Because the threat involved serious bodily harm and the location was her place of work, the retreat analysis turned on whether she qualified as the initial aggressor.
Rosa Ruiz assisted a friend during a confrontation in a public alley. When the aggressor advanced with a knife, she remained in place and used deadly force rather than stepping back to a safe distance. The retreat requirement applied because the location was not her home and no exception removed the duty.
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 caseRiley Rivera stood her ground in a parking lot after an argument escalated. She used deadly force without retreating even though a clear path to safety existed behind her. Allocation of the burden regarding whether the retreat requirement had been satisfied followed the jurisdiction's rules on self-defense proof.
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 caseIn minority jurisdictions following the traditional common law approach, a person must retreat as far as reasonably possible before using deadly force if the retreat can be accomplished in complete safety. The duty applies unless a recognized exception eliminates the obligation.
No. A person has no duty to retreat when the attack occurs in his or her own home. This exception, known as the castle doctrine, removes the obligation entirely even if a safe exit exists.
In a jurisdiction that requires retreat when it can be done with complete safety, the use of deadly force is not justified. The defender must use the safe avenue of retreat rather than kill.
No. A person has no duty to retreat when the attack occurs while making a lawful arrest or when the assailant is in the process of robbing the defender.
…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…