Know When to Stand Your Ground and When You Have a Duty to Retreat (Part II – Duty to Retreat)

Understand your right of self-defense so you will know when you have a duty to retreat. (photo/iStock)

In Part I of this series, we discussed those jurisdictions in which you have the right to stand your ground when exercising self-defense. In this part, we will discuss jurisdictions in which you have a duty to retreat prior to exercising self-defense.

Although currently in the minority, some jurisdictions impose a duty to retreat. In those jurisdictions, you may not use force to defend yourself unless you first attempt to remove yourself from the situation. Generally, retreat is not required unless you can do so safely.

In order to understand the duty to retreat, you must first learn about your rights as they relate to self-defense.

What is self-defense?

Self-defense is generally defined as the right to prevent suffering, force, or violence through the use of a sufficient level of counteracting force or violence. The definition seems easy enough to understand, but it is sometimes difficult to apply in real-world situations.

In the real world, questions arise like: What is a sufficient level of force or violence to use when defending yourself? What if an attack is provoked by the apparent victim? Can you defend yourself if you reasonably perceive a threat that does not actually exist? Each state has developed laws to address these questions. This article will address general considerations that apply.

Self-Defense Q & A

When does self-defense apply?

As a general rule, self-defense is only justified when there is an immediate threat. The threat can be verbal as long as the verbal threat creates an immediate fear of physical harm. If there is no threat or fear of immediate harm then the right of self-defense does not generally exist.

What constitutes fear of harm?

Sometimes, self-defense can be justified in situations where a perceived attacker does not actually intend to harm a victim. In those situations, a reasonable person standard is used to evaluate the right of self-defense.  The question becomes, would a reasonable person believe that harm was imminent based upon all of the facts and circumstances that exist at the time. If the fear of harm is objectively reasonable, then the right of self-defense generally applies.

How much force can I use in self-defense?

If you want to understand the duty to retreat, you must first learn about your right to self-defense. (photo/Shutterstock)

Generally, self-defense allows a response that matches the level of the threat. Said another way, a person can only use as much force as is required to remove the threat. If a threat involves deadly force, the person defending himself can use deadly force in return. If the threat involves only minor force, then only minor force can be used. If the amount of force used is greater than the amount of force threatened, then the claim of self-defense will fail.

Can I defend other people?

The same principles that apply to defending yourself generally apply to cases involving the defense of another. A person may be permitted to defend another person if he has a reasonable fear that the other person is in danger or reasonably believes that force is immediately necessary to protect the person from a third party’s use of force.

Does self-defense apply even though I can’t safely retreat?

Your right to self-defense is independent of whether you have a duty to retreat. Even in jurisdictions where you have a duty to retreat, you can defend yourself with reasonable force if a safe retreat is not possible.

Do I always have to retreat?

Generally, the duty to retreat only applies in public places. Most duty to retreat jurisdictions do not require you to retreat if you are in your home, your business, or your car.

Examples of self-defense and duty to retreat

Let’s look at some examples to drive the point home. In these examples, we will assume that the duty to retreat applies.

Example 1:  You are at a stadium watching a football game. An opposing fan starts arguing with you about which team is better. The argument escalates and the fan walks towards you saying he is going to “break your face.” As the man gets closer, you hit him in the face breaking his nose.

In this situation, you were not justified in striking the fan because you first had a duty to retreat. A self-defense claim would fail.

Example 2: You are waiting at a bus stop. While you are waiting, a man approaches you and pulls out a knife. The man demands your wallet. You do not believe you can safely walk away without being stabbed by the man.  You use your handgun and shoot the man.

In this situation, you could not safely retreat. The man threatened deadly force by brandishing the knife. You used deadly force to stop his attack. A self-defense claim would succeed in this case.

Example 3:  You are at the bar having a drink. A man walks over to you, throws a drink in your face and threatens to fight you. You retreat from the situation and leave the bar. The man follows you outside and says he is going to teach you a lesson. He puts up his hands in a traditional boxer’s stance and comes towards you. You use your handgun and shoot the man.

In this situation, you tried to retreat but the man followed you outside. Once outside, the man threatened to fight you and advanced towards where you were standing. Using a gun to defend yourself against someone who is threatening to hit you with his closed fists will likely be found to be an excessive use of force. A self-defense claim would likely fail.

Example 4:  You are at a park and you see a man approach a woman. The man grabs the woman’s arm and starts yelling at her. The woman cries out for help as the man raises his hand to strike her. You run over and hit the man in the face. The man runs away.

In this situation, you saw a third person who reasonably appeared to be in immediate danger of being hit. To defend her, you ran over and struck the attacker in the face. The amount of force used matched the perceived use of force by the attacker. Since the woman was in imminent danger and the use of force was reasonable, a claim of self-defense will likely succeed.

Things to Remember

Here are some things to keep in mind if you are in a “duty to retreat” jurisdiction:

• You have a duty to retreat and not a duty to put yourself in danger. If you cannot safely retreat, then you can act reasonably to defend yourself.

• The duty to retreat generally only applies in public places. If you are in your home or business, you likely have no duty to retreat.

• The laws of each jurisdiction are different. It is best to check with an attorney in your jurisdiction so that he can advise you on the specific legal standards that apply where you live.

Why have a duty to retreat?

Ultimately, whether your jurisdiction imposes a duty to retreat does not really matter very much. Whether you have to retreat or are allowed to stand your ground, your right to defend yourself remains the same.

Anti-gun advocates want us to believe that a duty to retreat reduces violence. The implication is that those of us who would defend ourselves without running away would be the ones committing the increased acts of violence. That simply isn’t true. Just because a person is allowed to stand up to an attacker at the beginning of an encounter does not mean he will use excessive force to defend himself.

Consider this: A person who stands his ground may intimidate the attacker and make him think twice about using force or violence in the situation. The opposite may also be true. A duty to retreat may increase incidences of violence because those who initiate unlawful attacks will be emboldened when victims turn and run away. Is it any wonder an increasing number of states are adopting stand your ground laws and allowing people to defend themselves and their families at the first sign that an encounter is taking a violent turn.

Regardless, the battle lines over this issue have been clearly drawn. The anti-gun crowd will continue to try and eliminate stand your ground laws.  As law-abiding gun owners who want to protect ourselves and our families, we must arm ourselves with knowledge about the self-defense laws where we live so that we can be prepared in the event that we have to exercise our rights.

About the author: John Thomas is a U.S. Navy veteran, and a former prosecutor and defense attorney with over 20 years of experience in state and federal courts. He has handled everything from traffic tickets to first-degree murder cases and is a long-time supporter of Second Amendment rights and the rights of individuals to defend themselves, their families and their property.

{ 9 comments… add one }
  • Stephen July 29, 2020, 12:04 pm

    In addition to age or disability differences, how about gender! A larger, stronger male vs. female. (I won’t get into the newer definitions of gender these days.) More and more females are getting CCW’s and taking self defense with firearm classes.

  • Kenneth Jamin July 28, 2020, 2:25 pm

    I liked your article but as a certified firearms and CCW instructor, I would suggest that you also address the “disparity of force” defense that may exist due to the relative ability(s) of the attacker and defender such as size, age, number of attacker(s) vs. defender(s) etc. For example, a senior citizen who is attacked by a teen-age criminal, might well be justified in the use of deadly force, due to the disparities of ability and age, even tho the attacker is unarmed.

  • Tail Gunner July 27, 2020, 5:15 pm

    Soooo, a 24 yr old pulls his Ka-bar on a feeble 80 year old. The 80 year old is armed but to avoid “excessive force” liability must only use his knife for defense. Of course the younger man cleans his clock. But the elder is legal to the end, as noted by the preacher at his funeral the next week.

    All this hyperbole defies common sense. I doubt the bad guys are reading all this confusing information. Probably spending the time sharpening their hate rhetoric …. and their Ka-bars.

  • Patm July 27, 2020, 11:33 am

    Very informative series. I would have liked the author to address maybe the most common scenario:
    home intrusion, person located on second floor (or somewhere where there’s no reasonable safe retreat), its at night and dark and someone is there. Due to darkness you don’t know if the intruder is armed. What can/must the homeowner/tenant do before using force?

  • Newell D Anderson July 27, 2020, 8:56 am

    Supporting Rangemaster’s comment, I am 80years old!! I am licensed & carry. I do not believe I am a Kung Fu fighter!! A fist fight could be fatal to me with health issues & age. There is an old adage, old people won’t fight you, they will kill you!!

  • Alej Marcos July 27, 2020, 8:51 am

    Universal suffrage will prove to have been the terminal cancer of the Republic. Dull-witted non-hacker low-class people vote for demagogues exhibiting the same (interior or exterior) characteristics. Witness Nancy Pelosi, Charles Schumer, et al). People like that argued endlessly over “duty to retreat” until it became law in certain degenerated parts of the country.

  • Jim Rice July 27, 2020, 8:45 am

    You have no legal obligation to take a beating. The basic premise is that amount of force necessary to stop the threat. If the only thing you can do to stop someone from doing greatbidily harm to you is stop them with deadly force, then that deadly force would normally be justified. However, ever jurisdiction is different as is every situation. Always remember in today’s world politics can also play a role-especially in high profile cases. Remember these words, ‘i was in fear for my life and there was nothing else I could do”. Or better yet, ” he was trying to kill me. I thought I was going to die! Why did he make me shoot him? Why?” Then say you are too distraught to talk and call a lawyer.

  • Louis July 27, 2020, 8:42 am

    In Ex. #2 the person attacked has additional support for use of deadly force as he (she) is preventing a robbery. In NY, at least, this is specifically authorized In Article 35 of the Penal Law:

    “(b) He or she reasonably believes that such other person is committing
    or attempting to commit a kidnapping, forcible rape, forcible criminal
    sexual act or robbery..”

  • Rangemaster11B July 27, 2020, 6:45 am

    Example #3 does not consider the possible disparity of force. If the assailant is substantially larger/stronger/younger, exhibits a trained fighting skill, or the defender is physically handicapped in a way that would make unarmed self defense problematic, this could be still be self defense.

    Self-defense is always an affirmative defense to a criminal charge. The burden of proof is on the defender to prove that is defensive and reasonable under the circumstances, rather than the State proving it’s case beyond a reasonable doubt.

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