Sunday, April 15, 2012

Stand Your Ground/Duty to Retreat

If the Republicans were smart (and if pigs flew) they would be rephrasing this Stand Your Ground question in "war on women" terms.  I'm impressed how many of the cases that I have found so far involve women defending themselves from abusive intimate partners (and sometimes the reverse, as in State v. Glowacki (Minn. 2001))--and being charged because they didn't leave their own homes rather than use deadly force.

Fortunately, the courts have had the good sense to recognize that there is no duty to retreat in your own home and have ordered retrials with different jury instructions.  Just a couple of examples: State v. Livesay, 233 P. 2d 432 (Idaho 1951) (woman shot, perhaps by accident, her abusive husband when he returned home from jail for domestic violence and attacked her; her right to defend herself in her own home was upheld against a jury instruction denying her the right to use deadly force when she had provoked the confrontation; also found that a “duty to retreat” instruction was incorrect). Weiand v. State, 732 So.2d 1044 (Fla. 1999) (duty to retreat not applicable in one’s own residence, even when the attacker is her spouse).  State v. Thomas (Ohio 1997) (no duty to retreat in one's own residence, even when the attacker has an equal right to be there):
Thus, a person who, through no fault of her own, is assaulted in her home may stand her ground, meet force with force, and if necessary, kill her assailant, without any duty to retreat

9 comments:

Mike H. said...

Excellent perspective on the problem. Paints the picture in a way that includes everyone.

Miguel said...

Emiliy Bazelon wrote an article in Slate Magazine in which she actually blames battered women defending themselves for the STG laws.



http://www.slate.com/articles/news_and_politics/crime/2012/03/why_george_zimmerman_trayvon_martin_s_killer_hasn_t_been_prosecuted_.single.html#pagebreak_anchor_2

Henry said...

"Fortunately, the courts have had the good sense to recognize that there is no duty to retreat in your own home…"

"The courts?" Maybe in Idaho, Florida, and Ohio. The unfortunate residents of Massachusetts still have this "duty" routinely reinvented upon them by liberal state judges (e.g., Commonwealth v. Shaffer), despite repeated attempts by the legislature to refute it via legislation.

Massachusetts' prosecutors have argued that a man should have fled and abandoned his sleeping daughter to a home invader instead of shooting him, and quibbled over how high and how small a basement window "escape route" had to be before a woman was justified in defending herself with a gun from a home invader who came through the door.

Clayton said...

In most states, there is no duty to retreat. Even in states that maintain a duty to retreat, for most this doesn't apply in your own home. Can you provide me some citations to such Massachusetts cases? They would be useful for the Cato Institute talk next week.

Clayton said...

Just found a whole bunch of Massachusetts decisions affirming your duty to retreat out of your home rather than use deadly force against an attacker.

It is hard to believe that the voters of Massachusetts are so unwilling to fix this.

Clayton said...

Massachusetts apparently passed a castle law some years back. See Commonwealth v. John J. Peolquin (Mass. 2002): "The enactment of G. L. c. 278, § 8A, modified the common law by justifying the use of deadly force by a person in his own home to respond to an assault threatening death or great bodily harm by someone unlawfully in the home, even though the person had a reasonable means of retreat or escape."

Henry said...

If you can't believe how far Massachusetts voters have their heads wedged up where the sun don't shine, just read the recent reader comments about a proposed state stand-your-ground law here:

http://holliston.patch.com/articles/poll-do-you-think-massachusetts-should-adopt-the-stand-your-ground-gun-law-31eaa516

These readers aren't just against the new law, they want to erase the civilian ownership of guns entirely… if not the very existence of guns itself.

Dr.B said...

I have a policy debate on this topic on Tuesday.
Resolved: All stand your ground laws shall be repealed.
Happily I'm the negative.
Haven't seen you address this in SGN yet.
Wish I'd asked you for helpful links last week....

Clayton said...

I wish that you had asked as well. There's a paper by a guy named Jansen (who is part of the Cato Institute panel on Monday) that while it is hostile to stand your ground laws, includes the full text of the Florida SYG statute (as well as others). Actually read Florida's law, and you will realize that it really isn't all that radical.

Also, search for "domestic violence" and "duty to retreat" in scholar.google.com--you will be amazed at the number of decisions in the last few years that have recognized the danger of imposing a duty to retreat in one's own home.