Stand Your Ground & Duty to Retreat Laws: Definitions & Examples

Instructor: Kenneth Poortvliet
When claiming self-defense, sometimes the law allows a person to stand their ground and sometimes it gives them the duty to retreat. In this lesson, we will learn under what circumstance each of those apply.

Just Defending Myself

What if someone tried to kill you with a knife, and you defended yourself and shot the attacker, but then later you were arrested and charged with murder? Does this make sense? Don't you have the right of self-defense?

Unlawful Killing

The difference between a first-degree murder conviction and a negligent homicide is the level of criminal intent, (desire to commit a crime) that the defendant had when the crime was committed. For example, a first-degree murder charge requires premeditation as the level of intent, whereas if someone was only acting unsafe or negligent, then the charge might be involuntary manslaughter.

Self-Defense

The same law that prohibits murder also allows for the defense of justification, which means that an unlawful killing did occur, but it was justified for some reason. The most common of these is self-defense. If this is the case, then the killer will not be liable for their actions. Self-defense can also be used in assault cases or any violent crime.

A typical self-defense law requires:

  1. An unprovoked attack ( the person can't be the aggressor).
  2. The person reasonably believed that they were in imminent danger of death or serious bodily injury.
  3. The use of force was reasonable when weighed against the threat.

For example, let's say Joseph was attacked by Ben, who tried to stab him with a knife. Joseph pulls out a gun and shoots Ben, who didn't know he brought a knife to a gunfight, and he died. The law against murder could put Joseph away; he committed an unlawful killing, with the intent to inflict great bodily harm, when shot Ben.

However, the self-defense statute also allows Joseph to not be held liable for the charge, if he did so, in accordance with the elements of self-defense, which he did. So Joseph would not be convicted of killing Ben. The reasoning here, is again, connected to the level of criminal intent. Even though a person's actions might indicate the intent to kill someone, their intent was driven by self-preservation, and not an evil desire to do harm.

Additional Elements

Most self-defense laws have the requirement that the killer was not the aggressor. This prevents someone who started the attack, from being able to claim self-defense, when the victim got the upper hand in the fight. The idea is that if you started it, you can't claim self-defense if you kill the person because they fought back.

Duty to Retreat

Some states also have other requirements for self-defense. One of these is the duty to retreat. This adds an element to self-defense that requires the killer, or one claiming self-defense, to retreat before using deadly force, but only if retreat is possible and wouldn't put the person in continued, or greater danger.

For example, if Ben pulled his knife on Joseph, who pulled his gun, this law would require Joseph to retreat if he could, but only if doing so wouldn't be dangerous to him. If Joseph was backed up to a busy highway, or a cliff, then retreat is not an option. But if it's open behind him, and he is safely outside Ben's knife reach, he would have to try and retreat before he would be allowed to shoot Ben.

Proponents of this requirement say that it's needed to reduce violence, in cases where there was a clear path to de-escalate the violence. Opponents say that this is an unreasonable hurdle, to the right to defend one's self. It's not always clear when a retreat is possible, and it may not always be known when it's safe to do so until it's too late. Opponents may also argue that the attacker was the aggressor, and shouldn't be protected by a duty to retreat law.

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