 | This articlerelies excessively onreferences toprimary sources. Please improve this article by addingsecondary or tertiary sources. Find sources: "Duty to retreat" – news ·newspapers ·books ·scholar ·JSTOR(January 2022) (Learn how and when to remove this message) |
| Criminal defenses |
|---|
| Part of thecommon law series |
|
| Othercommon law areas |
| Portals |
Inlaw, theduty to retreat, orrequirement of safe retreat,[1]: 550 is a legal requirement in some jurisdictions that a threatened person cannot harm another inself-defense (especially lethal force) when it is possible instead to retreat to a place of safety.[1]: 549–554 This requirement contrasts with some other jurisdictions tostand one's ground, meaning being allowed to defend one's self instead of retreating.
It is a specific component which sometimes appears in the criminal defense of self-defense, and which must be addressed if criminal defendants are to prove that their conduct wasjustified. Depending on the state the criminal defendants have to prove a minimal time period of safe retreat.
InEnglish law the focus of the test is whether the defendant is acting reasonably in the particular situation. There is no specific requirement that a person must retreat in anticipation of an attack. Although some withdrawal would be useful evidence to prove that the defendant did not want to fight, not every defendant is able to escape. InR v Bird the defendant was physically attacked, and reacted instinctively and immediately without having the opportunity to retreat. Had there been a delay in the response, the reaction might have appeared more revenge than self-defense.[2]
As to carrying weapons in anticipation of an attack,Evans v Hughes held that for a defendant to justify his possession of a metal bar on a public highway, he had to show that there was an imminent particular threat affecting the particular circumstances in which the weapon was carried.[3] Similarly, inTaylor v Mucklow a building owner was held to be using an unreasonable degree of force in carrying a loaded airgun against a builder who was demolishing a new extension because his bills were unpaid.[4] More dramatically, inAG's Reference (No 2 of 1983)Lord Lane held that a defendant who manufactured ten petrol bombs to defend his shop during theToxteth riots could set up the defense of showing that he possessed an explosive substance "for a lawful purpose" if he could establish that he was acting in self-defense to protect himself or his family or property against an imminent and apprehended attack by means which he believed to be no more than reasonably necessary to meet the attack.[5]
Most U.S. jurisdictions have astand-your-ground law[6] or apply what is known as thecastle doctrine, whereby a threatened person need not retreat within his or her own dwelling or place of work. Sometimes this has been the result of court rulings that one need not retreat in a place where one has a special right to be.[7] In other states, this has been accomplished by statute, such as that suggested by theModel Penal Code.[8]
InErwin v. State (1876), theSupreme Court of Ohio wrote that a "true man", one without fault, would not retreat.[9] InRunyan v. State (1877), the Indiana court rejected a duty to retreat, saying,[1]: 551–2 [9] "the tendency of the American mind seems to be very strongly against" a duty to retreat.[9]
