Guns for Beginners: Castle Doctrine and The Duty to Retreat

(courtesy graintegrok.com)

“A witness called police saying that someone had just shot their wife in the middle of the street,” reuters.com reports, “and that he was trying to get into the house across the street. The homeowner heard the shots and grabbed a firearm. As the man attempted to enter the home, he killed the suspect.” Given the totality of circumstances, the Oklahoma homeowner who terminated his wife-aversive neighbor will not face prosecution. Ah, but the antis would say, “Why didn’t he retreat into the house? He didn’t have to confront the man trying to break in.” No he didn’t. But neither was he obliged to retreat . . .

Like many but not all states, Oklahoma has a “castle doctrine” or “stand your ground” law.

[Click here to see if yours is one of them. It is imperative that you know whether or not your state is on the list. Even if your state has a so-called stand your ground law” it’s equally important that you read and understand the statute. There are key differences between laws which could well mean the difference between a pat on the back and serious jail time.]

Oklahoma law stipulates that an resident has a right to “stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm – provided the self-defender “is not engaged in an unlawful activity” and is attacked “in any place where he or she has a right to be.”

If all those boxes are ticked – as they seem to be above – Oklahoma grants the armed self-defender legal immunity. Of course, whether or not those boxes were ticked in a defensive gun use may be a source of some dispute; if the police and prosecution are not satisfied that an armed self-defender had a right to stand their ground, they may have to prove their innocence in court.

Note: Oklahoma’s law (strengthened in 2011) specifically removes any “duty to retreat.” This is a critical component. As Wikipedia points out, “in those jurisdictions where the [duty to retreat] exists, the burden of proof is on the defense to show that the defendant was acting reasonably.”

If the event described at the beginning of this post had happened in Connecticut, Delaware, Maine, Maryland, Massachusetts, New Jersey, New York, Pennsylvania, Rhode Island, Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, Ohio, Wisconsin, Hawaii or Wyoming, it might have had a very different outcome for the man who shot the wife murderer.

Or not. As Eugene Volokh pointed out, laws concerning armed self-defense are not entirely straightforward. Again, your state’s law may contain caveats and exceptions that will dramatically effect the outcome of a criminal investigation. “Pennsylvania, for instance, imposes a duty to retreat only when the person whom the defendant is defending against has not displayed a ‘weapon readily or apparently capable of lethal use.'”

And then there’s your state’s lethal force law – another must-see – and the “reasonable person” standard.

In any defensive gun use, the police and prosecution will consider the totality of circumstances when deciding whether or not to arrest and/or prosecute an armed self-defender who uses lethal force to stop an attack. Those variables include

  • your sex, age, height, weight, physical condition and criminal background
  • the attacker’s sex, age, height, weight, physical condition and criminal background
  • the exact circumstances of the attack (where, when, how and what)
  • whether or not your prosecution serves the police and DA’s career progress or political ambitions

Stand your ground laws are an extra protection against unjust arrest and prosecution, a protection that can provide immunity from civil prosecution. Gun control advocates would remove it (story to follow). If you keep and bear arms for self-defense, it’s in your best interest to do everything you can to defend your state’s stand your ground law, modify it if necessary, or work to enact one if one doesn’t exist. Your safety and freedom depend on it. [h/t GR]

comments

  1. avatar ANdrew Lias says:

    The way I look at it stand your ground or not, he is in between me and my wife who needs medical attention.

    1. avatar Timmy! says:

      While the story was worded in a confusing manner, and I can understand your interpretation of the events, I believe man A witnessed man B shoot Mrs. B in the street. Then when man B attempts to enter the home of man C, he is ventilated by homeowner C… at least that is how I interpret it.

      1. avatar Galtha58 says:

        The story is definitely written to confuse. Sounds to me like Man A (The First Shooter) shoots his own wife. Apparently Neighbor B sees him do this and then sees Man A try to get into Neighbor C’s home. Neighbor B then shoots Man A (First Shooter). Not sure why he would do that but maybe he thought that because Man A had just shot his wife he was going to harm someone in Neighbor C’s home also. Maybe he knew something the story is not telling. Perhaps Neighbor C was having an affair with Man A’s wife and Neighbor B was aware of that. All speculation, I know. But trying to figure out why Neighbor B shot Man A and why the police seem to be OK with that.

  2. avatar Ralph says:

    When it comes to self defense, there’s only one rule. One.

    Get yourself a great lawyer.

    Everything else is just words.

    1. avatar Don says:

      Yep, and shut up. Ask for medical attention point out witnesses, follow lawful orders, and KEEP YOUR MOUTH SHUT! Get the USCCA subscription, research local lawyers and find one that is sympathetic to self defense, have a conversation with that lawyer to let them know that they will be contacted should the need ever arise.

      1. avatar foo dog says:

        +1. This preparation is a must, imho, if you plan on regularly carrying outside your home. Its not a question of if, but when someday you will need representation, if only to later resolve a mis-communication or misunderstanding with local LEOs or neighbors who are concerned, and do not know the law.

      2. avatar Jonathan - Houston says:

        Memorize that lawyer’s phone number, too. After a DGU, your cell phone may be lost, broken, stolen, or booked into evidence. Your spouse may not be available, for whatever reason. You should also have a short list of specific things that must be done, consider it a post-defensive gun use action plan, which you can provide your attorney with in advance. Very basic necessities:

        Like contact your brother/sister to pick up your kids (from school, home, from the crime scene, wherever they happen to be during your DGU).
        Like having access to some cash or credit cards to make bail.
        Like having power of attorney in place should assets need to be put up for collateral.
        Like notifying your employer that you’ve been the victim of a crime and won’t be in the office for a few days.

        You can’t detail how your entire life will be run in your absence. I’m just talking about some critical priority tasks that must be done until you’re out on bail and to get you out on bail.

        1. avatar craig K. says:

          Well written. I was involved in a DFG use here in Houston. DA office tried to file charges based on that I didn’t retreat, didn’t know her own laws. Even though I didn’t’ have the chance to retreat. Avoid this kind of thing, it will cost you 60K even if you are innocent and no-billed as I was. Please stay away from ANY of it if at all possible gents. It will ruin your life….

      3. avatar Cuteandfuzzybunniess says:

        I’m. In TEXAS thank god. If somebody forces or attempts to force entry I to my home he is assumed to be intending and able to use deadly force on me. A DA can’t even argue that in court its in the statute.

    2. avatar jsj says:

      Yep, yep and don’t depend on websites like the one linked in the story for legal advice. It’s wrong about Wisconsin (we’ve been a Castle Doctrine state since 2011)

    3. avatar Dyspeptic Gunsmith says:

      And, I would add, find out which lawyer(s) in your town/area/etc to call in the event of a DGU. That lawyer might cost you money up front, but it will probably be money well spent if you have a lawyer who knows the laws/case-law of self defense in your state and can get you and your case off the LEO radar as quickly as possible.

  3. avatar Mikial says:

    Here in Virginia we are a stand your ground state. They tried to push a castle Doctrine bill through last year, but our state 2nd Amendment rights organization worked hard and had it dropped because it left too many openings for homeowners to be prosecuted.

    What we have now works well, and protects the right of the homeowner and private individual on the street to protect themselves. Having said that, i do have a liability policy through USCCA and have a local 2nd Amendment attorney.

  4. avatar What about Bob says:

    Not sure the linked list is up to date.

    Regarding Wisconsin, third paragraph.

    http://www.wifirearmlawyer.com/article2.html

    1. avatar tdiinva (now in Wisconsin) says:

      When I applied for my Wisconsin carry permit I had to sign a statement that I read and understood the requirements for the use of deadly force. Nowhere did I see a duty to retreat requirement. However, the tactical situation should dictate your actions. Just because you can stand your ground doesn’t mean that this is your best option. Stand your ground laws offer legal protection not advice on the best course of action.

  5. avatar Anonymous says:

    A duty to retreat in Wyoming? I wouldn’t have expected that.

    1. avatar Dyspeptic Gunsmith says:

      Well, it’s more complicated that what it sounds like.

    2. avatar LarryinTx says:

      I have always planned to retreat. Just as soon as I need to reload.

  6. avatar Badgerman says:

    Wisconsin has had the castle doctrine I believe since 2011, your source is out of date. Wisconsin is an incredible example of how it can turn completely 2A Pro in a year. It actually was better to own a firearm in Wisconsin than Texas, after Wisconsin passed concealed carry.

    So, I witness a murder happen in the street in front of my house. Then, the murderer comes to my house to do what? Yes!!! Lethal force is authorized, just like if I wisteness gang bangers light up a house next door; yes I can I engage with extreme prejudice if I choose.

    Molon Labe.

    1. avatar jsj says:

      Wisconsin always was pro 2A, We just finally got a governor who realized the state didn’t end at the Dane county line.

      Our Castle Doctrine law is still evolving. Court of appeals recently ruled that it has to be your home, car or extension thereof. They Denied castle doctrine protection to a homeowner who shot perps standing in his yard.

  7. avatar Don says:

    I believe that the intent of the law in Wyoming is that you would retreat only as far as your gun safe, or rifle rack if you’re driving…..

    1. avatar Chadwick P. says:

      Haha or glove box if it’s not winter time. Lots of cars rolling around when it’s sunny but I have to wonder what they do when the wind blows the snow sideways. I’ve only had a few Wyoming winter experiences but they sure as hell were as brutal as any I’ve seen in Utah and possibly Idaho(some parts anyway).

  8. avatar Chadwick P. says:

    It’s very interesting that Wyoming is a duty to retreat state. I would assume it hasn’t been a major issue so far considering most of the people I know that live there but still. I am going to guess that a stand your ground law is really only needed when a large majority of the people(ie the media and people too ignorant to think against the media) are against self defense.
    It’s crazy to think that the idea of self defense of ones life or the lives of others from a predator should require so much legislation and debate. Water-wet, air-you breathe it, food, you eat it, life-defended at all costs from predators. That’s just the basic instincts of a successful species. All unsuccessful species die off and make room for something more adept.

    1. avatar Dyspeptic Gunsmith says:

      There is no statute requiring a retreat. The laws are based on the more ambiguous “reasonable fear” doctrine of self-defense law.

      So, let’s say you’re out on the street: Someone threatens you – to a point where you have “reasonable fear” of death or great bodily harm (or rape). If you have an escape route or a way to avoid the threat that a “reasonable person” would agree was available to you, a jury might decide that if you used lethal force in self-defense, you didn’t need to do so because you had an escape.

      This doesn’t apply in your house. In your house, if someone breaks in, the WY statute law gives the homeowner or resident of a dwelling the presumption of reasonable fear if someone is breaking in. You need not play a game of 20 questions to ascertain the intent of the intruder, you can assume they will present a reasonable threat of death or GBH, and shoot them. There are exceptions to this (ie, if the person trying to enter the dwelling has a legal right to be there – a roommate, spouse, tenant, etc) the reasonable fear presumption doesn’t apply.

      Here’s the statute presumption:

      6 2 602. Use of force in self defense.

      (a) A person is presumed to have held a reasonable fear of imminent peril of death or serious bodily injury to himself or another when using defensive force that is intended or likely to cause death or serious bodily injury to another if:

      (i) The intruder against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, another’s home or habitation or, if that intruder had removed or was attempting to remove another against his will from his home or habitation; and

      (ii) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring.

      1. avatar Joe R. says:

        So, if you find yourself needing to shoot someone, away from your home, don’t go to bed without going after LE, and your local judicial system, as they will be after your a_ _ before the morning. Give them at least as sh_tty a night as you’ve had.

  9. avatar Anon says:

    Shit happens.

  10. avatar Mk10108 says:

    The link leads to Thetrace.org. Seed money provided by Everytown. Working hard to end stand your ground laws. Real news, objective, invites opposing points of view while relaying current stand your ground laws promote racial discord and in fact us a low cost license to kill….

    Wonderful. Dem’s open borders to illegal immigration, provide sanctuary cities for illegals who represent 30% of our prison population and now a army of lawyers want to prevent law abiders from lawful self protection.

    Reshaping of America to keep one party in political power. Taking away 50% of your earned income and giving it to the illegal that gets our sons and daughters job.

    The future of America well on the way of becoming a hell hole.

  11. avatar foo dog says:

    Good article. Very important to know your own state laws, as no one national source can go into as much detail as you might need. For example, the FindLaw link does NOT include information about California’s castle doctrine, nor the stand your ground like provisions in jury instructions to allow acquital in justifiable homicide in self-defense.

    http://ww2.kqed.org/news/2013/07/22/5-things-to-know-about-stand-your-ground-in-california

  12. avatar Joe R. says:

    OK is way ok.

    Eveyone else, better go hide, and ball-gag yourselves while you bend over and take it. First law of nature is: the dumb must suffer. Second law: suffer in SILENCE beotch.
    Someone tells you you shouldn’t end someone who you’ve witnessed performing a vilient crime and is a continued threat. . . chase them over to the nearest gun-grabbers house and shoot anyone trying to interdict the perp from having his way with them.

  13. avatar Bruce says:

    The terminology is a bit confusing. Got into a discussion the other day about the Castle Doctrine and duty to retreat here in MT. But, as I understand it, the default under the common law was that you had a duty to retreat if you could safely do so. That has been abrogated in most states by now (Stand Your Ground laws). But, one of the exceptions of the duty to retreat is that some states enacted the Castle Doctrine, which provides that you don’t have to retreat if you are in your castle (i.e. your home). But, notably, this only makes sense if the retreat doctrine is still in effect in a given state, since abrogating the duty of retreat generally (Stand Your Ground) is broader than merely doing so in your home (Castle Doctrine).

    Why is the retreat doctrine bad? Because it allows prosecutors and police to second guess those claiming self-defense. When faced with a threat of deadly force, people often focus on meeting that threat, to the exclusion of much of what is going on around them. They may be focusing on the person posing that threat, etc. So, there may have been safe routes to safety that they did not avail themselves of, since they didn’t see them. The prosecutors, on the other hand, have months to look and relook at all the evidence, and find that one route to safety that was missed, and that may be more than sufficient in states retaining the retreat doctrine to defeat a claim of self-defense.

    1. avatar uncommon_sense says:

      Bruce,

      Duty-to-Retreat is much worse for a much simpler reason: it requires that the defendant prove their innocence rather than requiring that the prosecution prove their guilt. As you well know, this violates our several hundred year bedrock legal principle that we are presumed innocent until proven guilty in a court of law in front of a jury of our peers.

      For that reason alone, our courts should not allow the concept of Duty-to-Retreat.

  14. avatar Hobbez says:

    You are slightly in error about the duty to retreat laws here in Maine. Our use of deadly force laws clearly state that you do not have a duty to retreat inside your home. If someone crosses your threshold without permission, you can deal with them as necessary without retreating deeper into your home, such as the law is in states like Maryland. This does not apply to areas outside your home, however, even if it is your property. So, if the individual in this story were to force the door open and enter a dwelling here in Maine, the homeowner would not face prosecution. Ask me how I know…

  15. avatar fishydude says:

    When I lived in MA there was a self defense/defense of another. Martha Coakley was the cowardly DA at the time with her eye on higher office. So you can guess what she tried to do.
    The particulars?
    A 19 year old called to 911 because his mom’s live in boy friend was beating her badly and trying to kill her. The young man did the right thing. He first called 911. But before the police could get there, the live on a-hole got the mother pinned and was choking the life out of her. So the son grabbed a kitchen knife and stabbed the bass turd, killing him before police could get there.
    He was arrested on possible murder charges even though it was a clear case of self defense/defense of another.
    Martha Coakley forced this young man to face a grand jury inquisition. Fortunately for him, the citizens of Massachusetts are a lot smarter than the people they elect. The young man got a no bill. They ruled it a clear case of self defense. And it was. But Coakley was too cowardly to just drop the charges.
    Massachusetts. on paper, is a duty to retreat state. No right to self defense. But juries rarely, if ever will indict in cases of self defense regardless the instructions from the judge or evidence presented regarding the duty to retreat aspect. (shooting an intruder in the back after they are out of one’s home is about the only time someone may get indicted in MA since it is hard to argue the threat is still active.)

    1. avatar Ralph says:

      MA is a Castle Doctrine state.

      https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleII/Chapter278/Section8A

      Under this law, “There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.”

      But MA is not a SYG state; its Castle Doctrine does not apply outside a person’s dwelling. On the street, there is a duty to make a safe retreat.

  16. avatar Stinkeye says:

    “…they may have to prove their innocence in court.”

    I thought the burden was on the prosecutor to prove a defendant’s guilt, not the other way around.

    Of course, with the court system the way it is now, and the news media convicting anyone accused of anything in the first twenty-four hours, maybe the original wording is more representative of what actually happens…

    1. avatar fishydude says:

      There is an exception when one is putting forth an affirmative defense. One of those things that was made up by the courts along the way and has not been undone by SCOTUS.
      The defense should never have to prove a negative.
      Should I have to prove I didn’t know the intruder meant know how and was only carrying a fake gun? Because if I knew it was fake that there was no real threat.

  17. avatar Mike says:

    Missouri doesn’t seem to have duty to retreat if you’re home or in car (with appropriate caveats of “you didn’t start the fight” stuff):

    Section 3: A person does not have a duty to retreat from a dwelling, residence, or vehicle where the person is not unlawfully entering or unlawfully remaining. A person does not have a duty to retreat from private property that is owned or leased by such individual

    http://www.moga.mo.gov/mostatutes/stathtml/56300000311.HTML

  18. avatar Bigdiogi says:

    Bizarrely enough, the great state of Illinois, that bastion of Liberty- while not having a Stand Your Ground law or the Castle Doctrine, actually gives a defender decent rights. A strange and bizarre coincidence.

  19. avatar franklin the turtle says:

    in PA we don’t have to retreat from our house/ workplace/ vehicle under any circumstance and in outside “castle areas” there is no duty to retreat if confronted with a weapon. and we can not be sued if we cause injury to the aggressor

  20. avatar Ken of RI says:

    Rhode Island does not have written into the Castle Doctren law a duty to retreat.

  21. avatar schernobyl says:

    Self Defense immunity is even better and we should all be pushing for this in our home states

  22. avatar smart tvs says:

    Asking questions are really good thing if you are not understanding anything totally, but this
    post provides nice understanding yet.

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