The “Duty to Retreat,” the Duty (or Not) to Comply With Demands, Necessity, and Liberty

The so-called “duty to retreat” has been in the news recently, and has long been of interest to people interested in self-defense law. Some have argued that the duty to retreat is a special case of the general requirement that lethal force may only be used when necessary to prevent death, serious bodily injury, rape, kidnapping, or perhaps some other serious crimes. But I think this “corollary of the necessity requirement” view misses an important point, which I want to blog about briefly here.

1. The necessity theory goes like this: “The use of deadly force,” to quote the Model Penal Code, “is not justifiable … unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or [rape].” (Similar formulations are used in many states that haven’t adopted the MPC, though many of those states add robbery and sometimes burglary to the crimes that may be prevented through deadly force.)

If someone “knows that he can avoid the necessity of using such force with complete safety by retreating,” then deadly force isn’t really necessary. Hence the duty to retreat: Even when threatened with death, serious bodily injury, rape, etc., you must retreat if that’s safe (e.g., by driving away from someone who’s threatening you with a knife from across the street, if you’re safely in your car), or else lose the right to use deadly self-defense.

2. But wait: Let’s say that someone tells me “Give me your wallet or I’ll seriously injure you,” and I know that (1) if I give over the wallet, I won’t be seriously injured, and (2) if I don’t, then I will be seriously injured. (I acknowledge that it’s rare to have such confidence, but let’s assume this — perhaps because I know the attacker and his habits — just as duty-to-retreat law assumes that one can sometimes “know” that one can retreat with “complete safety.”) Under the “necessity” definition we’re discussing, here too deadly force isn’t really necessary, since I can avoid the need to use deadly force by handing over the wallet. Yet even under the Model Penal Code — which has a quite narrow view of permissible lethal self-defense (see below) — I can refuse to hand over the wallet without losing my right to use lethal self-defense.

Or say that someone credibly tells me “Beg for your life or I’ll kill you,” and instead of begging I shoot the person. Again, under the “necessity” definition we’re discussing, deadly force wouldn’t really be necessary, since I could have avoided the need to use deadly force by begging. But again, even under the Model Penal Code, I could refuse to beg without losing my right to use lethal self-defense. Likewise if someone tells me “Renounce your apostasy or I’ll kill you” or “reveal this-and-such secret to me or I’ll kill you.”

This, I think, highlights the point I noted in my earlier post on the duty to retreat: Even under a formulation such as the MPC’s, one doesn’t lose the right to lethal self-defense just because one could avoid the need for lethal self-defense with complete safety. Rather, one loses this right only when one could avoid the need for lethal self-defense with complete safety and without undue sacrifice of one’s liberty.

Even the MPC doesn’t require one to give up one’s liberty not to hand over the wallet, or one’s liberty not to beg, as a condition of lethal self-defense. The MPC duty to retreat is thus not just an application of the “use deadly force only when necessary” requirement. Rather, it embodies a judgment that requiring someone to leave a place where he has the right to be is not an undue sacrifice of one’s liberty — even though requiring someone to comply with a demand for money, or a demand that he beg for his life or renounce his apostasy, is an undue sacrifice of liberty.

3. This is made even clearer if we look more broadly at the MPC provision, which reads:

(b) The use of deadly force is not justifiable … unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if …

(ii) the actor knows that he can avoid the necessity of using such force with complete safety
[1] by retreating or
[2] by surrendering possession of a thing to a person asserting a claim of right thereto or
[3] by complying with a demand that he abstain from any action that he has no duty to take, except that:
(A) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be ….

(c) Except as required [above], a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act that he has no legal duty to do or abstaining from any lawful action.

This provision makes clear that people need not comply with a demand that they beg or hand over their wallets, even if doing so would “avoid the necessity of using [deadly] force.” They may have to comply with a demand to turn over property under a claim of right (i.e., if there’s a good-faith dispute about whose property it is). They may have to comply with a demand to abstain from an action. But they don’t have to comply with a demand to turn over property without a claim of right (“give me your wallet”), or a demand to engage in an action (“beg for your life”). Nor do they have to comply with a demand that they leave their homes or their workplaces.

Again, this is a judgment, I think, about acceptable restraints on liberty: The MPC’s view is that (as I argued above)

  1. one loses the right to self-defense only when one could avoid the need for lethal self-defense with complete safety and without undue sacrifice of one’s liberty,
  2. having to leave a place where one has a right to be, having to comply with a demand to abstain from action, and having to turn over property as to which there’s a good-faith dispute is an acceptable sacrifice of liberty, and
  3. having to leave one’s home or workplace, having to comply with a demand to engage in action, and having to turn over property as to which there’s no good-faith dispute is not an acceptable sacrifice of liberty.

4. One may well disagree with the MPC about what counts as undue sacrifice of one’s liberty and what counts as an acceptable sacrifice. One may conclude that the law shouldn’t demand any sacrifice of liberty on the defender’s part when someone is threatening the defender with death, serious bodily injury, and the like — one would therefore reject the duty to retreat and the other duties the MPC identifies.

But the one thing that should be clear is numbered item (1) above: Even the MPC concludes that one loses the right to self-defense only when one could avoid the need for lethal self-defense with complete safety and without undue sacrifice of one’s liberty. And the common-law rule in the duty-to-retreat states embodies this view as well. The duty to retreat is thus not just an application of the “necessity” requirement; it’s a judgment, whether right or wrong, that a particular sacrifice of liberty — though not other sacrifices of liberty — on the defender’s part is acceptable in order to prevent bloodshed.

Incidentally, note that a half dozen or so states have adopted the MPC rule that I quote above, but I haven’t found even a single case that applies the provision that a defender can’t use lethal self-defense if he “knows that he can avoid the necessity of using such force with complete safety … by complying with a demand that he abstain from any action.” I’ve looked hard, because I wanted to see how this provision plays out in practice, and yet I found nothing.

This suggests to me that prosecutors, judges, or juries likely don’t really buy this provision: Though the MPC, and the legislatures that adopted the MPC, seem to conclude that requiring a defender to comply with a demand to abstain from action is an acceptable limit on liberty, the legal system on the ground doesn’t seem to adopt this view. Please let me know if you know of any cases to the contrary.