The Duty to Retreat

Do You Have A Duty to Retreat?

Probably not.  But that doesn’t mean you shouldn’t consider it as a practical first step in self defense.

Most of the jurisdictions in the United States where there are adequate concealed carry laws have abandoned the age-old doctrine of requiring retreat before using deadly force.  Alabama is a good example:

Ala.Code 1975 § 13A-3-23: Use of force in defense of a person.

(a) A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he or she may use a degree of force which he or she reasonably believes to be necessary for the purpose. A person may use deadly physical force, and is legally presumed to be justified in using deadly physical force in self-defense or the defense of another person pursuant to subdivision (5), if the person reasonably believes that another person is:

(1) Using or about to use unlawful deadly physical force.

(2) Using or about to use physical force against an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling.

(3) Committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree, forcible rape, or forcible sodomy.

(4) Using or about to use physical force against an owner, employee, or other person authorized to be on business property when the business is closed to the public while committing or attempting to commit a crime involving death, serious physical injury, robbery, kidnapping, rape, sodomy, or a crime of a sexual nature involving a child under the age of 12.

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(b) A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground.

 

While there are other exceptions in the statute, the bottom line is that you can use deadly force against perceived deadly force when there is a threat a reasonable person would presume required it.  The law in Florida and other “stand your ground” states is similar.  But, that does not mean that retreating is not a sound practical way to ensure you don’t spend the rest of your life in the gulag.

Why do I say that?

Because, for the most part, the police do not make charging decisions.  The police are unelected.  They do not answer to the electorate; only their bosses do.  More importantly, the prosecuting attorney, who does answer to the public, is the entity that makes the decision to charge or not charge an individual with a gun-related crime.  This is true for all levels of government, except the FBI when the defendant’s last name is Clinton.

So, what does that mean?  It means that there are a lot of people in elected office who get elected because they’re perceived as “tough on crime” who are in fact charlatans.  They tout conviction rates: “97% of our cases resulted in a guilty plea or conviction,” they say.

Yeah, about that.  When Jethro gets caught with 14 pounds of weed, his attorney plea-bargains possession with intent to sell down to simple possession, a misdemeanor in most cases, and Jethro gets credit for the 14 days he spent in jail before his mama could make his bail.  Jethro walks out a free man.  But – hey – it’s a conviction, right?

When Tyrone goes out and decides to stop Jimmy from selling dope on his street corner, and puts Jimbo in the hospital with high-velocity lead poisoning, it gets sent to the prosecutor as assault with intent to kill, assault with a deadly weapon, attempted murder, and maybe a few other charges like use of a firearm in a drug-related felony.  But Tyrone didn’t have any dope on him when he got arrested, and the police might have been unable to get Jimmy to testify, because Jimmy has his own plans about justice.  So this mayhem gets reduced to simple assault and Tyrone gets probation.

Tough on crime!  You betcha!  Except, not really.

Exceptions

Now, Susie Homemaker is baking cookies for the Boy Scout Jamboree when Cletus decides he needs to sample the goodies (and I don’t mean the cookies).  Cletus breaks in, grabs a knife off the kitchen counter, and comes after Susie, who stands her ground with a .38 Chief’s Special.  Cletus goes down for good.

Stand your ground, right?

Maybe, but maybe not too.

The police will be sympathetic, and will write a report that does not recommend prosecution.  But the prosecutor is running for re-election, and Susie is black, Cletus is white.  There is a racial overtone to the shooting that has absolutely nothing to do with the crime.  Or maybe it’s the other way around.  It doesn’t matter.  In a “duty to retreat” state where there is a duty to retreat, it often applies and courts in those states often go through legal gymnastics to find that duty.

Take the case of Patton Gainer versus Maryland.  In that case Gainer was involved in an altercation in his own house with his sister’s boyfriend.  Patton was 16 at the time.  The other boy was older and known to carry a .44 magnum.  When the victim went out for more beer, he returned holding his hands behind his back and saying that he “had something for” Patton, and that he was going to kill him.  Patton shot him when he saw the hands move.  Two slugs from a .22 rifle beat out a non-existent .44 magnum (which reminds us of the first rule of gun-fighting: bring a gun).

The state knew the evidence was in conflict with the sister calling it murder and Momma and the boy’s brothers calling it justifiable.  So an energetic prosecutor brought murder charges and then argued against a self-defense jury instruction.  Under Maryland law, while a duty to retreat exists in public, it does not exist in the home (Maryland has by case law adopted the castle doctrine).  As a result, the appeals court reversed the conviction.

Could You Have Retreated?

So, if Susie/Cletus happens in one of those jurisdictions the first question will be “could you have retreated?”  And if she could have gotten to the bedroom and locked the door, then she is likely to be prosecuted for murder, even though it is likely that Cletus would have plea-bargained a sexual assault case down to simple assault and walked in 13 months.  The prosecutor will argue that Cletus was shot because he was white, or black, or purple, or gay, or whatever because the idea that people defend themselves is somehow foreign to people who surround themselves with armed guards all day long.

So, while there may not be a duty to retreat under your state’s law, and while that duty may be slowly receding in state law generally, retreat is often the best option for several reasons.

Home Invasion

Let’s take a home invasion setting to begin with.

First, if you can safely retreat (that is, if you can get you and everyone you love into one room), and barricade yourself in, you can call 911 and let the police handle the matter.  Sure, the thief may get Grandma’s ring and that $50 you had in the candy jar, but he’ll also likely get caught and you won’t get hurt.  Second, you won’t have to worry about whether you did the right thing by shooting him.  Third, if he comes through the barricade, and particularly if there is more than just you in that room, then it is obvious he is after more than property, and any action you take at this point will be hard for a prosecutor to quarrel with later.

Your Property

Suppose you’re on your front lawn and your crazy neighbor comes swinging a ball bat.  If you can make it inside and lock the door, again, that is not only safer for both of you, it establishes that you had no intent to harm him.  If he bashes in your front window and comes after you anyway, then you have to shoot.

Out in Public

Now, you walk up to the bank and you notice a masked man pointing a gun and demanding money.  He is pointing a gun right at the teller’s head.  Do you enter and take him down?

Not if you’re smart.  If you’re smart you call 911, give your location, describe the situation, and if possible, get cell phone video of the robbery and the person doing the robbery.  Hide.  If the robber doesn’t shoot anyone you can’t be sure he was going to (or that will be the argument the state will make).  And what if this is a simulation for the bank employees?  So, you wait for officers to arrive and then you retreat further.  They get paid to do that kind of work; they know the risks and the tactics.

If the robber starts shooting people, that’s another story.  Now you have a reasonable fear that he will harm others, and now you may act.  But keep in mind, you don’t know who is working with the robber, and you may be placing yourself in both legal jeopardy and personal jeopardy by getting involved.  That’s especially true if you shoot a bystander by accident.  That’s especially true if you use a round that over-penetrates.

If your life, or the life of someone you love is not personally in danger, it is always better to call for help.

Heroes Often Fail

Like Gordon Lightfoot told us, “Heroes often fail.”

Many will argue that helping others is the reason that they carry.  Indeed, in many jurisdictions intervening to stop a robbery is considered heroic.  But it is also important to remember that this isn’t the way things always work out.  In the San Antonio mall shooting last year, the mall had signs prohibiting gun owners from carrying.  It didn’t stop the guy who stopped the robbery, and it sure didn’t stop the two hoodlums who were committing it.  The headline in the USA Today said Shopper Who Shot Suspect Not Allowed to Carry.  You had to read nearly to the end to find out that it was a policy of the mall; the man had a valid permit.  Under Texas law, a sign has the force of law if it meets the state standards.  Still, I would rather be guilty of a Class C Misdemeanor than dead.  That the mall complained about the concealed carrier and not the robber should certainly convince people not to shop there.

Training

When I train, I always train to move back from the target saying “Stop, I’m armed, I will shoot.”  Obviously if you have time in an emergency it is a good thing to do this.  But, defense of life comes before defense in court.  Or said more plainly: you have to survive to be prosecuted.

The Bottom Line

Retreat is a good idea if you have time.  It is a good idea to practice this in range sessions if allowed, and if not, saying “Stop!” to yourself before you pull the trigger is a good way to build it in to your routine if you’re in an indoor no-draw range.