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Law of Self Defense Question of the Week: If I have no safe avenue of retreat, what actions put me on the best legal ground?

Law of Self Defense, 2nd Edition

Law of Self Defense, 2nd Edition

USA - -(Ammoland.com)-  This week’s Law of Self Defense: Question of the Week comes from Alec Atchison (@PatsPokesNSox):

If I’m somewhere that I have a duty to retreat, but no safe avenue of retreat is possible, what actions can I take to put myself on the best legal ground?

This is a great question because although it seems simple on its face it raises a number of interesting issues.

Failure to Retreat Can Bite You Even in a Stand-Your-Ground State
First, it’s important to recognize that the failure to take advantage of a safe avenue of retreat can potentially be used against you even in a stand-your-ground state. To understand why, it is necessary to understand the scope of stand-your-ground, and the limits of that scope.

A minority of states (16) impose a legal duty to retreat before you can use deadly force in self-defense, if a safe avenue of retreat is available to you. In these duty-to-retreat states, retreat becomes the fifth essential element of the law of self-defense. In order to defeat your claim of self-defense the State need merely defeat any single one of those elements—if one element fails, the entire legal defense fails (I’m setting aside for purposes of this discussion the legal concept of “imperfect self-defense”.)

To put it another way, if there exists a legal duty to retreat, and you failed to meet that legal duty, your use of force was not self-defense, as a matter of law. Period.

The majority of states (34) do not impose a legal duty to retreat before using deadly force in self-defense, making them effectively stand-your-ground states. In these states, retreat is therefore not an essential element of the law of self-defense, and your failure to take advantage of a safe avenue retreat cannot lose you the right to claim self-defense automatically as a matter of law.

That does not, however, mean that the prosecution cannot nevertheless argue to the jury that your failure take advantage of a safe avenue of retreat was unreasonable under the circumstances, and that the presence of a safe avenue of retreat made your use of deadly force unnecessary under the circumstances. This is true even in most statutory stand-your-ground states.  Retreat may not be an element of self-defense in these states, but reasonableness sure is, and necessity is the foundation of all self-defense law.

In these states, then, while you cannot lose self-defense as an automatic function of law because you failed to retreat, your failure to retreat can still be a threat to your claim of self-defense. Instead losing self-defense as a matter of law, as would be the case in a duty-to-retreat state, it’s left to the jury’s discretion to decide if your claim of self-defense still stands.

Having said that, there are a few states that are what I call “strong” stand-your-ground jurisdictions. In these states the prosecution is not allowed to argue, and the jury is not allowed to consider, retreat as an issue of self-defense. Period. Among these states are:

Wisconsin takes a split approach, eliminating retreat as an issue of self-defense in the context of the Castle Doctrine . . .

. . . but leaving retreat available as a point of attack for the prosecutor everywhere else:

While there is no statutory duty to retreat, whether the opportunity to retreat was available goes to whether the defendant reasonably believed the force used was necessary to prevent an interference with his or her person.

State v. Wenger, 593 N.W.2d 467 (WI Ct. App. 1999)

The bottom line is that in most of the country your failure to take advantage of a safe avenue of retreat can be used to undermine your claim of self-defense, whether you live in a duty-to-retreat state or in any one of a majority of the stand-your-ground states.

With that said, let’s look at how the issue of retreat is evaluated.

The “Safe Avenue of Retreat” and the “Reasonable” Person
First, it should be made clear that when we speak of a duty or obligation to retreat in the context of self-defense we are speaking solely of a safe avenue of retreat. You are never, even in duty-to-retreat states, required to attempt a retreat that would increase your danger.

To illustrate, if you see an attacker approaching in a menacing manner holding a tire iron, and you could safely retreat from that attack by walking 100 feet into a secured position before he could reach you, that looks like a safe avenue of retreat.

If, however, in order to reach that secured position you would have to cross 6 lanes of heavy freeway traffic, that would not look like a safe avenue of retreat.

So, if no safe avenue of retreat exists, retreat is simply not legally an issue.

But who judges whether an avenue of retreat is safe or not? In the immediate sense, of course, the defender must make that determination. But as in all things in the law of self-defense the reasonableness of the defender’s determination is going to be judged by others—police, prosecutors, judges, jurors—using the benefit of 20-20 hindsight.

If the defender failed to see a safe avenue of retreat that appears obvious in hindsight, the test will be whether that failure on the part of the defender was one to be expected from the perspective of a reasonable and prudent person in the same or similar circumstances as the defendant was when attacked, not that of, say, a juror sitting in the calm safety of a court room protected by armed bailiffs. The Supreme Court long ago recognized this principle, as noted by the famous Justice Oliver Wendell Holmes:

Detached reflection cannot be demanded in the presence of an uplifted knife.

Brown v. United States, 256 U.S. 335 (1921)

Be Able to Articulate Your Perceptions of Retreat in Detail
Given that it will be your perception of whether safe retreat was possible is going to be determined to have been reasonable—or not reasonable–by others, it’s essential that you are able to make that perception accessible to them in as concrete a manner of possible.

Can you articulate, in precise language, why you believed safe retreat was not possible under the circumstances? The better you can articulate your case, and the more concrete and definite the language you use to do so, the more compelling your narrative of non-retreat becomes.

  • Did the nature of the attacker’s weapons make retreat infeasible? If your attacker is armed with a gun it is difficult to imagine what means of retreat could secure your safety—bullets fly fast.
  • Be specific about distances and your perceptions of the ability of both you and your attacker to cross them.
  • Know such key distance markers as the “Tueller Drill,” and be able to document that this knowledge was possessed prior to your use of defensive force. If the attacker is within 21 feet he can strike a killing blow before most armed citizens can present their holstered gun and obtain center mass hits—turning your back to flee under these circumstances can only increase your vulnerability to attack.
  • Does your attacker appear to be young and fleet of foot, while you’re well past your athletic prime? Do you have physical infirmities that might keep you from moving in retreat as quickly as you could if you were healthier (and might these infirmities not be outwardly visible to witnesses or to a jury—again, documentation of such infirmities is important)?
  • Even if you yourself could have retreated quickly and safely, were you with people whom you had a duty to protect who would not have been able to do so—children, elderly parents, a spouse in high heels?
  • Do you have training you can document in which you tested the practical limits of being able to retreat safely in the face of a threat? The speed with which one can retreat while keeping a deadly threat in sight and adequately defended against is a small fraction of the speed that can be covered in an all-out sprint.
  • Did the attack come so swiftly that no assessment of retreat was even reasonably possible? A rapist lunging from behind a truck and immediately grabbing his victim by the hair allows no reasonable opportunity for even a consideration of retreat.

These are the kind of articulable details that tremendously buttress your compelling narrative of innocence, and that create great difficulty for a prosecutor attempting to weave a compelling narrative of guilt by attacking on the issue of retreat.  Because of this, they are also exactly the kinds of articulable details that are most likely to reduce your perceived legal vulnerability to prosecution, and get you “kicked out” of the system earlier rather than later.

Situational Awareness: Where’s your safe avenue of retreat, right now?
Finally, when considering the issue of a safe avenue of retreat we should also look to our situational awareness. If you find yourself caught without an avenue of safe retreat, how did that happen? Sure, maybe the bad guys planned well and got you trapped in a way impossible to have foreseen. But most bad guys aren’t all that bright, and tend to rely to a great extent on their victims’ inattentiveness.

Many of you will be familiar with my in-depth coverage of the George Zimmerman trial. If so, you’re aware that from my perspective Zimmerman’s narrative of self-defense was among the cleanest I’ve ever seen. It was as near text-book perfect as the real-world is ever likely to offer.

From a legal perspective, that is. From a tactical perspective, Zimmerman did make mistakes. And the single greatest of those tactical mistakes was to position himself where he could be ambushed without an effective means of safe retreat. When Zimmerman, at the prompting of the police dispatcher’s inquiry as to Trayvon Martin’s direction of travel, turned the corner of the apartment building and proceeded in the dark and shadows down the dog-walk area between the buildings, he placed himself in a kill-zone where Martin was able to strike with sufficient speed to make retreat infeasible.

Had Zimmerman instead “sliced the pie” of the corner of the building from several tens of feet back, he would have lost little in terms of observational ability, he would have stayed outside the ambush zone most favorable to Martin’s attack, and he would have greatly increased his prospects for safely retreating from any such attack. Even if Martin had pursued and still carried out his brutal attack, Zimmerman’s narrative of self-defense would have been only that much stronger, and his defensive options that much greater.

Knowing your immediately avenues of safe retreat—and being particularly alert to entering circumstances where such avenues become minimized or eliminated entirely—should be part of everyone’s automatic situational radar, an essential component of being in what Jeff Cooper referred to as a “yellow” state of mental alertness.

Wrap-up
Ok, that’s probably enough for this week’s question of the week. This week’s “winner”, Alec Atchison (@PatsPokesNSox), will get his choice of a complimentary autographed copy of “The Law of Self Defense, 2nd Edition” or a snazzy LOSD ball cap.

If you’d like to submit your own Question of the Week, and become eligible to win a free book or hat, simply submit your question at Ask Andrew at the Law of Self Defense web site, to my Twitter account at @LawSelfDefense (no “of”).

–Andrew, @LawSelfDefense

Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere. In addition to the book, Andrew also conducts Law of Self Defense Seminars all around the country. Seminars for 2014 are currently being scheduled, if you’d like to see one held in your area fill out the comment box on the LOSD Seminar review page, where you can also see reviews of recently completed seminars in New Hampshire, Maine, Texas, Massachusetts, Ohio, Virginia, Florida, South Carolina, Georgia, and elsewhere. Andrew is also a contributing author on self defense law topics to Combat Handguns, Ammoland.com, Legal Insurrection, and others. You can follow Andrew on Twitter at @LawSelfDefense and using #LOSD2, on Facebook, and at his blog, The Law of Self Defense.

If you’d like to submit your own Question of the Week, and become eligible to win a free book or hat, simply submit your question at Ask Andrew at the Law of Self Defense web site., to my Twitter account at @LawSelfDefense (no “of”).

Stay safe!
 
-Andrew, @LawSelfDefense
  • 5 User comments to “Law Of Self Defense Q&A: With No Safe Retreat, What Actions Are My Best Legal Defense”

    1. Richard Aubrey on February 24, 2014 at 8:55 PM said:

      Presume a reasonably fit guy had a self-defense class forty years ago, and the usual Infantry unarmed combat stuff back then, too.
      An assailant comes at him with an upraised–say, heavy garbage can lid from an industrial item–and the guy shoots him. Presuming no way to safely retreat.
      Could the prosecutor say, look the assailant had his weapon high in the air, wasn’t thinking below his adam’s apple and you could have kicked him in the balls?
      Yes, I suppose he could. Qusstion is where this lies in the deadly self-defense continuum.

    2. make sure they really do have a weapon and not just a cell phone and a pack of skittles. tell them that you feared for your life.

    3. Richard: A forceful blow to the head with a “heavy” item clearly constitutes an imminent threat of death or grave bodily harm, and would warrant a deadly force response.

      Of course, the State can argue anything they like, but the defense has a very compelling narrative of innocence in that scenario (conditional on other facts, of course).

      –Andrew, @LawSelfDefense

    4. Jamie: Actually, there is no requirement in the law of self-defense that the attacker “really” has a weapon. The only requirement is that the defender’s perception of a weapon be subjectively and objectively reasonable.

      So long as the perception of a weapon is reasonable, the fact that the perception is mistaken is of no consequence.

      Of course, it’s easier to convince the jury that such a perception was reasonable if an actual weapon is recovered, but that’s a matter of the weight and credibility of the evidence, not an element of self-defense.

      –Andrew, @LawSelfDefense

    5. Hugh Smith on March 15, 2014 at 2:30 PM said:

      Q: someone wants to take your car your wallet or jewelry. Do you submit our can you use deadly force

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