Law of Self Defense Question of the Week
USA – -(Ammoland.com)- This is a great question because there is so much confusion around both these terms.
Much of the confusion stems from the fact that although both of these terms have a narrow, technically-correct meaning they have also been commonly used to refer to other aspects of self-defense law beyond these core meanings.
(In addition, of course, Stand-Your-Ground has been deliberately mischaracterized throughout the media by political activists for their own purposes.)
The Historical Context of Stand-Your-Ground and the Castle Doctrine
First, let’s talk about the core definitions of the Castle Doctrine and Stand-Your-Ground in terms of how they are similar. To provide necessary context, we’ll begin with some history.
America was, of course, a British colony prior to our Revolution, and operated under principles of British law, much of which was based on common law (that is, law developed by practice in courts rather then formed by statutes). Given the length of British history, much of that common law finds its foundations hundreds of years in the past. And it is in that distant past that we encounter the generalized duty to retreat.
The Pre-Gun Era: The Generalized Duty to Retreat
In the days before firearms a defender was likely to be faced only with contact weapons (projectile weapons such as bows were the tools of a highly trained few, and crossbows were essentially the equivalent of today’s SAWs—not in common hands). At the same time, British law tended to see its citizens as subjects of the Crown—in a way, property of the Crown—rather than through the individualistic lens we Americans are familiar with through our own history and culture.
The combination of these two factors led to the common law rule of the generalized rule of retreat—before a defender could use deadly force in self-defense against an attacker, he was required to first take advantage of any safe avenue of retreat available. This became a generalized duty to retreat, and a breach of this duty —the failure to take advantage of a safe avenue of retreat before using deadly force in self-defense— stripped you of any justification for your use of “defensive” force in self-defense.
This rule follows naturally from the weapons of the day and the perspective of the Crown. If it was possible for a defender to move himself even 20 or so feet distant from an attacker, he’s could essentially make himself safe from that attacker’s impact weapons. Further, by doing so he prevented a violent affray in which one of the Crown’s subjects —either defender or attacker— might be mortally wounded and no longer capable of paying taxes, serving the Crown’s military, etc.
Guns Changed Everything
The advent of firearms, of course, change this dynamic considerably. Even if the attacker is armed with a “mere” single-shot flint-ignition arm, the defender moving a small distance away from brings him little additional safety. Combined with the rapidity that an attacker can be brought to bear, the generalized duty to retreat made little sense in this context.
Britain never really changed its common law in this regard. America, on the other hand, was a whole new kettle of fish. We have effectively always had firearms as part of our culture and day-to-day life, and so gun-wielding attackers have always been a part of our self-defense context. As a result, historically in America there was no generalized duty to retreat—and absent any such legal duty, one could stand his ground and face deadly-force attack with deadly-force defense, with no obligation to first consider whether retreat was safely possible. Most commonly, these no-duty-to-retreat provisions of the law were referred to as “True Man” laws.
Urbanized America Begins to Impose Generalized Duty to Retreat
As the decades passed, however, America became more urbanized, with larger population centers beginning to offer such amenities as professionalized law enforcement capabilities. With these in hand, American courts in various —and, later, legislatures— began to reconsider the issue of retreat. They looked back favorably on the old English generalized duty of retreat, and began to adopt it into American law in their own jurisdictions.
In these jurisdictions, it became the law that one had a legal duty to first take advantage of a safe avenue of retreat before using deadly force in self-defense, and the failure to do so stripped the defender of any legal justification for that use of “defensive” force.
The Pendulum Swings Back: Stand-Your-Ground Returns
Over the last 20 years, however, many of these states began to reconsider the wisdom of imposing a duty to retreat on innocent defenders. Over time, and with the encouragement of gun owners —both individually and through various organizations like the NRA— they began to do away with the duty to retreat. In the modern era this has been done through statute, and most commonly these statutes have used some form of the phrase “stand your ground”—hence, high profile of the phrase in today’s self-defense lexicon.
So, what’s happened then is largely a return of the pendulum. America had been entirely stand-your-ground as a matter of our own common law, a number of states had adopted a generalized duty to retreat, and now many of those that did so have reverted back to the stand-your-ground norm.
“Stand-Your-Ground” Is the Majority Position in the United States
Today, 34 states —a considerable majority— are effectively stand-your-ground states in that they do not impose a duty to retreat. About half of these have done so through stand-your-ground legislation, but the other half have simply always been stand-your-ground states.
It is an interesting historical artifact, for example, that politically deep-blue California has always been a stand-your-ground state—indeed, it is arguably the most aggressive stand-your-ground state in the country. In California not only may you stand your ground, you are even explicitly permitted to pursue your attacker if necessary for safety. All this despite the fact that California has no Stand-Your-Ground statute—the rule derives from a long history of case decisions and is captured in the state’s jury instructions (see CALCRIM 505 Justifiable Homicide: Self-Defense or Defense of Another.)
Now that we’ve laid the proper context for Stand-Your-Ground, let’s talk about the Castle Doctrine.
The Castle Doctrine: Exempting the Home from the Duty to Retreat
Obviously, in Stand-Your-Ground states that impose no generalized duty to retreat, there is also no such duty to retreat in your own home. But what about states that do impose a generalized duty to retreat? Does it apply everywhere, even in your own home?
The answer is, no. Even in states that provide for a very broad generalized duty to retreat, an exemption is made for one’s home. The basis of this is the notion that any duty to retreat is supposed to be a retreat to a greater position of safety, and if you cannot expect safety in your own home, to where then would you retreat?
This exception to the generalized duty to retreat became commonly known as the Castle Doctrine, drawn from the expression that “a man’s home is his Castle,” one’s ultimate place of refuge from violence.
Interestingly, the Castle Doctrine was not always an undisputed principle. In my home state of Massachusetts, for example, our supreme court ruled in 1975 that residents of the Commonwealth enjoyed no such exemption from the generalized duty to retreat [see Commonwealth v. Shaffer, 326 N.E.2d 880 (MA Supreme Court 1975)]. The facts of the case are quite horrific. Shaffer and her two small children had retreated from her abusive fiance all the way to the basement of her home. She had received numerous beatings from him in the past. The fiance, standing at the top of the basement stairs, told her: “If you don’t come up these stairs, I’ll come down and kill you and the kids.” When contrary to the woman's pleas and warnings he began coming down the steps, she shot him once with a .22 rifle. The wound was mortal. Shaffer was indicted for murder, and was tried on manslaughter. She was convicted at trial, the conviction was affirmed by the appellate court, and then again by the state Supreme Court (in the case cited above), on the basis that she failed to take advantage of a safe avenue of retreat.
The public response to this decision was immediate and overwhelmingly negative, and the MA legislature promptly passed Massachusetts General Law Ch. 278 §8A. Killing or injuring a person unlawfully in a dwelling; defense, creating a statutory Castle Doctrine. Even today, however, the Massachusetts Castle Doctrine is among the most restrictive in the country, applying only to the space within the four walls of your home—step one foot outside, and the generalized duty to retreat is once again imposed. (Most other states' Castle Doctrines also apply it to what is known as the curtilage, the area around your home that is part of the ordinary use of the home–so, the porch, the driveway, the front yard, etc.)
The Castle Doctrine: Important Limitations
While few states have as restrictive a Castle Doctrine as does Massachusetts, many do limit it in a wide variety of ways. Some, for example, allow for the exemption only when the homeowner is using force against someone not legally present—an intruder, of course, but it also exempts somebody with some legal authority to be present such as a landlord or inspector–or even to an invited guest (and not just one who was invited by you personally, assuming several people live in your home).
Others apply the Castle Doctrine to every attacker in the world—except the attacker who is also a co-dweller in the “castle”. So if your attacker is a family member living in the household—say, an abusive spouse—or a housemate of some sort, the Castle Doctrine exemption to the duty to retreat is lost in those states.
Needless to say, if you do not know the constraints of the Castle Doctrine in your state, I urge you to learn them.
Tying Together Stand-Your-Ground and the Castle Doctrine
Now, the tie in between the Castle Doctrine and Stand-Your-Ground is essentially this—many folks living in duty-to-retreat states, and enjoying the benefits of the Castle Doctrine in the context of their homes, began to wonder why the doctrine should be limited to just their homes.
If it applies to my home, they wondered, why not to my place of business? With the advent of carjackings in the 1980s and 1990s, many began to wonder why it didn’t apply in their vehicles—for those of us living in highly congested cities, it often feels like we spend more of our life in our cars than in our homes. Finally, if the generalized duty to retreat was going to be waived for homes, businesses, and cars, why impose it anywhere at all? Why not just say that if a defender is the innocent party acting in otherwise lawful self-defense, they simply have no duty to retreat . . . and can stand their ground. And that is how we arrive at the modern adoptions of Stand-Your-Ground statutes, with about 17 states adopting such statutes in the past 20 or so years. (Alaska is the most recent state to adopt Stand-Your-Ground legislation, this past fall, and Ohio is looking like a good candidate to become the next). Keep in mind, again, that roughly 17 states have always were effectively stand-your-ground states, as they never imposed a generalized duty to retreat in the first place.
Now that we’ve, hopefully, brought some clarity to Stand-Your-Ground and the Castle Doctrine, it might be worth a few minutes to highlight some of the areas that cause the greatest confusion.
Areas of Confusion around “Stand-Your-Ground”
First of all, Stand-Your-Ground deals only with the issue of retreat in the context of lawful self-defense. It does not authorize any greater degree of force, nor does it allow you to use force under any lesser degree of threat. You must still meet every other qualification for lawful self-defense—innocence, imminence, proportionality, and reasonableness. If you are the aggressor in the fight, for example, you don’t qualify for self-defense in the first place, and Stand-Your-Ground has no application. In particular, Stand-Your-Ground in no way authorizes a “shoot first, ask questions later” approach to self-defense, despite what so many political activists have claimed.
Second, “Stand-Your-Ground” is also not a provision of immunity from criminal prosecution or civil suit. Immunity is a completely separate legal concept from the duty to retreat, and proper legal analysis demands it be kept separate. Florida causes a great deal of confusion here because they provide both statutory Stand-Your-Ground and statutory self-defense immunity, and both provisions were adopted by the legislature at the same time.
As an artifact of this even Florida judges and prosecutors tend to incorrectly use the phrase “Stand-Your-Ground” to reference self-defense immunity. The commonly referenced “Stand-Your-Ground hearing” in Florida, for example, is nothing of the sort—it is a pre-trial hearing to determine self-defense immunity, and is properly referred to as a “self-defense immunity hearing”. Issues of retreat may be considered in such a hearing just as would any other facet of self-defense law—such as whether you were the aggressor, used excessive force, or acted unreasonably—but the hearing has nothing to do with Stand-Your-Ground, per se.
Third, because the purpose of Stand-Your-Ground is to relieve you of an otherwise existing duty to retreat, it can only have application where such a duty to retreat would otherwise exist. Even in the toughest duty to retreat states, the duty is imposed only where it is reasonably possible to retreat safely. If retreat is not reasonably and safely possible, even duty to retreat states impose no legal duty to retreat before using deadly force in self-defense.
This means that an act of defensive force can only be properly deemed a “Stand-Your-Ground” case where a safe avenue of retreat safely exists. If it does not, there is no duty to retreat, and absent a duty there is no role for Stand-Your-Ground.
To put it another way, if you are being beaten into a sidewalk by an attacker astride you, and your numerous efforts to escape have proven in vain, there is no role for Stand-Your-Ground in your use of defensive force—retreat is impossible, therefore not required, therefore no application exists for Stand-Your-Ground. Similarly if you are in the middle of a crowded movie theater where rapid retreat from an attack is effectively impossible—all of us know how difficult it is to move from your seat to the aisle in a crowded theater–then there is no application for Stand-Your-ground to relieve you of a duty that does not exist in the first place.
Areas of Confusion Around the Castle Doctrine
The Castle Doctrine is properly thought of as relieving the homeowner from any legal duty to retreat when defending himself in his home.
The home, however, is also frequently given numerous other advantages in the context of self-defense, relative to other locations. For example, many states have statutes that provide for a “presumption of reasonableness” that the defender’s use of deadly force was reasonable if committed against someone intruding, or attempting to intrude, into the home. Similarly, many states effectively treat a breach into the home as a de jure deadly force attack upon the residents inside the home, thus relieving the need for the evidence to show that an actual deadly force threat against the defender existed.
These and similar provisions, however, are distinct from the issue of retreat, and proper legal analysis requires that we consider them as separate and discrete legal concepts.
As always, if you do not know the limits around these self-defense legal doctrines in your state, I strongly encourage you to learn them.
Ok, that’s probably enough for this week’s question of the week. This week’s winner,[email protected], has won his choice of a custom autographed copy of “The Law of Self Defense, 2nd Edition,” or the alternative of a snazzy LOSD baseball cap.
I 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.
Stay safe! –Andrew,[email protected]
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 (where a custom autograph can be specified, great for gift purchases!), 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.