Duty to Retreat: A Problem for Conservatives?
Brooks Holland, currently a NYC Public Defender, and about to be a CrimPrawf at Gonzaga Law, writes to us about this interesting criminal law development in Florida about duties to retreat.
Gov. Jeb Bush appears ready to sign a bill that would eliminate any duty to retreat before one may use deadly force in self defense. The NRA apparently pushed for the bill. According to CNN “[t]he bill says a person has ‘the right to stand his or her ground and meet force with force.’” So, self defense in Florida no longer will focus on the necessity of taking one life to protect another in light of the defendant’s inability to retreat safely from deadly force, but instead on the victim’s forfeiture of his right to life due to his own violent misconduct? Perhaps sort of like the old Texas cliché, “He needed a killin’.”
Does this change transform self defense from a justification defense into an excuse defense? Contrast the more traditional approach illustrated in the NY Court of Appeals’ recent decision in People v. Aiken, 2005 NY Slip Op 02562 (Mar. 31, 2005). Interestingly, while this Florida bill would appear to reflect a “conservative” political view toward criminal justice, the Court of Appeals’ decision in Aiken imposing a pretty strict duty to retreat is rooted in the “protection of life.”
DM: I haven’t given tons of thought to the duty to retreat rule, but I know Dan Kahan (Yale Prawf) has written about this in various articles. It seems this is another example of the challenges of expressive politics: how law both constitutes and reflects our competing values and senses of social responsibility. I’d be interested if people had more thoughts on this, especially with empirical evidence, in the comments. Should I be learning target shooting in T-town? Or practicing my sprints?
Posted by Administrators on April 8, 2005 at 01:25 PM
Comments
For heaven’s sake, guys, this is the rule already in the majority of states and has been since the early 1800s. Florida is just joining the other states. The sky is not falling. This is just one aspect of the common law that American frontier judges never liked or adopted (with the exception of the minority states).
Posted by: ED | Apr 26, 2005 11:02:11 AM
By the way, Dan, I haven’t read it since law school, but as I recall George Fletcher’s _A Crime of Self Defense_ (dealing with Goetz) gives some interesting discussion of duty to retreat.
(That may have just been the class, though, and not the book — I had crim law with Fletcher, and he discussed the concept quite a bit).
Posted by: Kaimi | Apr 8, 2005 4:32:55 PM
I’m very interested in this issue, since next fall I’ll be opening a Philosophy of Law class for undergraduates with a discussion of the duty to retreat in self-defense cases. There is something to the notion that machismo is at stake: the no-duty-to-retreat rule in Beard v. United States, 158 U.S. 550 (1895), is called the “true man” rule–i.e., a true man would not retreat. “[A] true man, who is without fault, is not obliged to fly from an assailant, who by violence or surprise maliciously seeks to take his life, or to do him enormous bodily harm.” 158 U.S. at 561 (quoting an Ohio case). I’d appreciate any advice from anyone who has experience teaching self-defense doctrine to undergrads, though there may not be a lot of you, I understand.
Here’s the Findlaw address for Beard, though I can’t seem to put in into a link:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=158&page=550
Posted by: Chris Green | Apr 8, 2005 2:23:27 PM
Goetz is the most apt analogy for the situation. The jurisprudential question of whether this changes self-defense into an excuse based defense is interesting. Justification based defenses can be affirmatively proven by facts surrounding the event. In the case of self-defense, was there a threat? Could I reasonably retreat? Was the level of force I used commensurate with the danger involved? Changing this to an excuse paradigm runs into the question only of whether there was a threat? From what I have seen of this Bill trying to be an Act, the level of force with which a victim may meet force is not very clear. Hopefully the proportionality test is incorporated here …
Posted by: Joel | Apr 8, 2005 2:21:43 PM
What it seems to me as doing is creating a bar to prosecution as opposed to the traditional affirmative defense to prosecution. That is rather problematic. One can envision a scenario where self-defense is claimed in an otherwise outright “criminal” act.
Doing away with the duty to retreat seems rather foolhardy as well. While it almost never serves any purpose – scenarios are hardly ever conducive to “retreat” – the duty does encode common sense. Avoid the situation if possible, only then resort to violence.
(I posted on this a few days ago: http://publicdefender.typepad.com/public_defender_blog/2005/04/meet_force_with.html)
Posted by: Gideon | Apr 8, 2005 1:53:34 PM
There’s an obvious analogy to the Bernard Goetz case. One of the key issues there was, did he have a duty to retreat — to wait until he was actually cornered — before using force?
Posted by: Kaimi | Apr 8, 2005 1:31:49 PM