Do You Have a ‘Duty to Retreat’ in Public Places in Your State?

(Photo: Jordan Michaels)

With Iowa set to become (by my count) the twenty-sixth state to pass a “stand your ground” law, the self-defense community in this country has nearly gained a clear majority. If you add the eight states that have “stand your ground” precedents in their case law, it’s more than likely that you live in a state that legally protects you if you choose to fight rather than run in a life-threatening situation.

But what about the remaining 16 states? What happens if you live in a “duty to retreat” state and you shoot an attacker who you believe wants to take your life or cause you serious bodily injury?

In that case, you have to prove that 1) your life was actually in danger and 2) that you could not safely retreat. You must show that force was the last available option because there was nowhere to run or to hide.

You can see how such a high standard of proof can expose attack victims to both criminal and civil litigation. When faced with a life or death situation, a person cannot always choose whether they will respond with “fight” or “flight.” Without a “stand your ground” law in the books, a victim’s natural self-defense reaction could land him or her in jail for a long time.

But I’m getting ahead of myself. Let’s define some terms.

Generally speaking, a “stand your ground” law enables a person to match force with force in a public life-threatening situation as long as that person is legally allowed to be in that public place. There is no duty to retreat. Even if a person could safely move out of the area and avoid the confrontation, they do not have a legal obligation to do so.

It’s important to understand that this protection only applies when the victim reasonably believes himself to be in danger of death or serious bodily injury. Stand your ground laws, contrary to the anti-gun media, are not “shoot first” laws. You cannot kill a person just because they yell at you or insult your mom—you have to reasonably believe yourself to be in danger of death, rape, assault, etc.

Also keep in mind that “stand your ground” laws are distinct from “castle doctrine” laws. The castle doctrine legally protects a person if they injure or kill a home intruder. Few (if any) states require you to retreat from your own home before matching force with force.

States with explicit “stand your ground” laws: Alabama, Alaska, Arizona, Florida, Georgia, Indiana, Iowa (pending, likely to pass), Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia.

States that include “stand your ground”-like precedents in their case law: California, Colorado, Idaho, Illinois, New Mexico, Oregon, Virginia, and Washington.

(Note: State laws are almost impossible to aggregate with 100 percent accuracy. If I missed a state or mislabeled a state, leave a comment. Also, this article does not constitute legal advice. If you aren’t sure what the law is in your state, Google “[your state] justifiable homicide” or “[your state] stand your ground law.” Poke around until you find that actual statue on an official government website.)

In “duty to retreat” states, the victim of an attack must first determine whether or not there is a safe avenue of retreat before matching force with force. Here’s an example. Article 35 of New York’s Penal Code says that an “actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating.” The law makes exceptions if the person is either a) in his or her residence and not the initial aggressor or b) a police officer or someone assisting a police officer.

So, under New York law, if a person comes at you with a knife in an alley, you may not be allowed to shoot that person if you can turn around and run away. But if that person has a gun, you would probably be justified in killing your attacker (good luck with that) because you cannot retreat with “complete personal safety.”

Arkansas state law (surprisingly) includes almost identical language. According to §5-2-607, a person “may not use deadly physical force in self-defense if the person knows that he or she can avoid the necessity of using deadly physical force by retreating.” Exceptions are made, again, if the victim cannot retreat with “complete safety,” if the victim is in his or her residence (and not the initial aggressor), or if the victim is a police officer or assisting a police officer.

Many “duty to retreat” states include similar language and exceptions.

States with a “duty to retreat”: Arkansas, Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Nebraska, North Dakota*, Rhode Island, Vermont, Wisconsin*, and Wyoming.

*Duty to retreat does not apply in vehicles.

Stand your ground provisions are actually relatively new in the United States. The law has always recognized the right to self-defense in life-threatening situations, but until 2005 many states still required victims to retreat in public settings if they could do so safely.

In the 1980s a handful of states passed castle doctrine-like laws (nicknamed “make my day laws,” according to the National Conference of State Legislatures) that provided protections for people who defended their homes against unlawful intruders.

In 2005 Florida extended the castle doctrine to public places where a person is legally allowed to be. Since then, 24 additional states have included such language in their statutes (Utah passed the first “stand your ground” provision in 1994).

If you live in one of the 16 states that have yet to pass a “stand your ground” law, you need to be especially wary of inserting yourself into dangerous situations. The law does not protect you unless you have nowhere to run or hide and you reasonably believe your life is in danger. If you’re attacked without warning, you have to do your best to keep a cool head and evaluate all potential avenues of escape.

In the meantime, call your state legislators. The last several election cycles have seen huge gains for the pro-gun community at the state level. It’s never been a better time to make the necessary changes to ensure that your right to self-defense is protected—in every situation.

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About the Author: Jordan Michaels is a new convert to the gun world. A Canadian immigrant to the United States, he recently became an American citizen and is happily enjoying his newly-acquired Second Amendment freedoms. He’s a communications professional, a political junkie, and an avid basketball fan.