I blogged a while ago about how the presence of a “duty to retreat” probably (though not certainly) wouldn’t have affected the outcome of any possible prosecution of George Zimmerman for killing Trayvon Martin. The issue in that case would likely be whether Zimmerman reasonably feared death or serious bodily injury or some similarly serious crime, a requirement that’s present in pretty much all states, whether or not they adhere to the “duty to retreat” doctrine (Florida and most other states don’t).
But I want to talk a bit more generally about the duty to retreat, both in this post and (I hope) in a future post. Recall that this isn’t a true duty, such as the duty to testify when subpoenaed, but rather a rule that
- even if D reasonably believes that he is facing an imminent threat of death, serious bodily injury, rape, kidnapping, or, in many states robbery and some other crimes from V,
- so long as D can escape this threat with complete safety
- by leaving the altercation
- except when D is in his own home (or, in some states, in his workplace),
- D does not have the right to engage in lethal self-defense because such lethal self-defense is no longer necessary given the availability of a safe retreat.
And the question raised by the duty to retreat is this: Should D have to surrender his liberty to be in a place where he has every right to be — e.g., a street, a bar, a party at a friend’s house — in order to retain his right to lethal self-defense? The answer might well be “yes.” Perhaps some surrender of this liberty is indeed proper in order to minimize the risk of a shootout, which could lead to death or injury to D, to V, to innocent bystanders, or to others who may be caught in some escalating cycle of retaliation (as in inter-family feuds or gang wars). But we have to recognize that there is a surrender of liberty involved.
Under a duty to retreat, D must leave V’s presence, or else if he stays he will be subject to V’s potentially deadly attack (or at least seriously injurious attack) without any legal right to use potentially deadly force in self-defense. The law thus ends up supporting V’s thuggery, not with the specific purpose of doing so but with that effect: If V credibly tells D “go away or I’ll kill you,” D must flee (if he can do so with safety, which usually means that he’s fleeing a knife or an unarmed attack rather than a gun). Even if V just says “I’ll kill you,” D must flee; that might not play as much into V’s hands (if V’s goal is really to kill D and not just chase him away), but it will still help V exercise unresisted power over D.
In any case, that’s the theory. Here is a real case in which this issue came up, in one of the substantial minority of states in which a duty to retreat exists. Such relatively recent, simple, and factually well-described cases are pretty rare, and this is the first such one that my quickie query revealed, the Massachusetts Supreme Judicial Court decision in Commonwealth v. Benoit, 452 Mass. 212 (2008) (some paragraph breaks added):
By the time the trial began in January, 2007, there was no dispute between the Commonwealth and the defendant that the victim had died as a result of stab wounds inflicted by the defendant with a knife during a fight between the two young men outside of the victim’s home in Pittsfield.... In particular, at the time of his arrest on May 30, 2005, some hours after the fight with and resulting death of the victim, the defendant gave a statement to the police in which he said that immediately before the actual physical confrontation between him and the victim began, the victim “was on his porch saying that, ‘I’m going to stab you nigger, this and that.’” The Commonwealth was intending to introduce the defendant’s statement in evidence at trial.
In addition, the Commonwealth had given notice that it would seek to introduce evidence of an earlier statement of the defendant to his brother, describing an encounter between the victim and the defendant approximately one year before the confrontation leading to the victim’s death. The defendant had stated to his brother that in that earlier encounter, the victim, accompanied by one friend who was white, had called the defendant, who was with three friends who were black, names, like “nigger this, nigger that,” causing a fight to erupt, and in that fight the victim ultimately “got the best of” the defendant and his friends....
The defendant claims that he was entitled to an instruction on self-defense and that the judge erroneously refused to instruct the jury on this theory. When deadly force is used, such as in this case, the deadly force standard is applied. “In order to create a right to defend oneself with a dangerous weapon likely to cause serious injury or death, it must appear that the person using the weapon had a reasonable apprehension of great bodily harm and a reasonable belief that no other means would suffice to prevent such harm.” Moreover, the privilege to use self-defense arises only in circumstances in which the defendant uses all proper means to avoid physical combat.
A self-defense instruction is not required unless there is some evidence that the defendant availed himself of all means, proper and reasonable in the circumstances, of retreating from the conflict before resorting to the use of deadly force. “This rule does not impose an absolute duty to retreat regardless of personal safety considerations; an individual need not place himself in danger nor use every means of escape short of death before resorting to self-defense.... He must, however, use every reasonable avenue of escape available to him.” Although we resolve all reasonable inferences in favor of the defendant, as we must [when determining whether an instruction should have been given -EV], there was no such evidence in this case.
The defendant did not testify; thus we examine his statements to the police (which were in evidence) and any other evidence relevant to the feasibility of escape. In the defendant’s statement to the police, he said that, as he was about ten feet from the victim on the porch, the victim yelled, “I’m going to stab you niggers,” and that the victim jumped or “skipped” off the porch and “came at” the defendant and the defendant’s friend, Brandon Johnson. The defendant “figured that [the victim] had a knife, too, because he was going to stab us.” At that point, the defendant and Johnson talked about what to do, and Johnson gave the defendant a knife.
Viewing this evidence in the light most favorable to the defendant, after the victim’s threat to stab him, the defendant had the opportunity to go over to Johnson, get the knife, and then engage in combat with the victim. Whether Johnson was ten feet away from the victim, or somewhat closer, all these events transpired outdoors in front of the victim’s house and apparently in the vicinity of a public street. Nothing indicated that his escape was impeded in any way. Because there was no evidence of an attempt to avoid further physical combat or of the defendant’s inability to retreat, no self-defense instruction was required....
Again, the question was: Did the victim’s “I’m going to stab you niggers” require defendant to give up the right to be where he was, or else be legally stripped of the right to defend himself with deadly force if he stayed? (I infer that he was on a sidewalk or a place that’s similarly open to the public, and not on the threatener’s property, or else the court would have noted that. [UPDATE: I should have said, to be precise, that I infer that the evidence seen in the light most favorable to the defendant was that the defendant was in a place open to the public, since that's the test for when such an instruction is given; that way, the jury gets to apply the instructions to the facts as it ultimately concludes they were. And in any event, the court's decision is precedent for other situations in which a defendant is in a place open to the public.] Or should the defendant be free to remain where he was, while retaining the right to defend himself with deadly force, even when that meant a much higher chance of a deadly encounter? The Massachusetts court said the former. Most states say the latter. Which is right, in this case and in others?
By the way, here’s what ultimately happened to the defendant: The conviction was overturned on the grounds that the trial judge didn’t adequately investigate the possibility that a juror was removed because she was black. On remand, the defendant pled guilty to manslaughter before the retrial — presumably in part because the Massachusetts Supreme Judicial Court had concluded that he wasn’t entitled to a self-defense defense — and was sentenced to 18 to 20 years in prison. The defendant was 17 at the time of the incident; the man he killed, Anthony Hopkins, was 18.