Duty to Retreat and Stand Your Ground: Counting the States
Eugene Volokh • July 17, 2013 10:11 am
People are talking about how common “stand your ground” states are compared to “duty to retreat” states, so I thought I’d do a bit of looking to see the current head count. First, let me explain what I mean by “duty to retreat,” which is something of a misnomer (though a very common one):
Say that a defendant is facing the risk of death or serious bodily injury (or rape or kidnapping or, in some states, robbery or some other crimes). And say that the defendant
1. is not in his home or other property that he owns or his place of business,
2. is in a place where he may lawfully be,
3. is not engaged in the commission of such crime, and
4. has not attacked the victim first or deliberately provoked the victim with the specific purpose of getting the victim to attack or threaten him.
In duty-to-retreat states, the defendant is not legally allowed to use deadly force to defend himself if the jury concludes that he could have safely avoided the risk of death or serious bodily injury (or the other relevant crimes) by retreating.
In stand-your-ground states, the defendant
is legally allowed to use deadly force to defend himself without regard to whether the jury concludes that he could have safely avoided the risk of death or serious bodily injury (or the other relevant crimes) by retreating.
Relaxing criterion 1 above moves states into the stand-your-ground category; for instance, nearly all (and perhaps all) states don’t require retreat when the defender is in his own home, except in some narrow circumstances. Relaxing criterions 2 to 4 above moves states into the duty-to-retreat category, or even denies a right to self-defense regardless of whether the defendant tried to retreat. I’m speaking here of the core duty-to-retreat vs. stand-your-ground case, in which all four elements are satisfied.
As best I can tell, the current rule is that 19 states (plus D.C.) fall in the duty to retreat category, with the states being bunched up quite a bit geographically:
Northeast/Mid-Atlantic: Connecticut, Delaware, Maine, Maryland, Massachusetts, New Jersey, New York, Pennsylvania, Rhode Island.
Midwest/Plains: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, Ohio, Wisconsin.
West: Hawaii, Wyoming.
All the other states do not impose a duty to retreat. The rule in federal cases seems to be ambiguous.
This oversimplifies matters somewhat (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 I might have erred in classifying one or two states in either direction, since this is the result of a few hours’ worth of research and has not been fully cite-checked. Still, I think this reflects the general pattern:
1. The substantial majority view among the states, by a 31-19 margin, is no duty to retreat. Florida is thus part of this substantial majority on this point. And most of these states took this view even before the recent spate of “stand your ground” statutes, including the Florida statute.
2. There is however a significant minority in favor of a duty to retreat.
3. Of course, none of this tells us what the right rule ought to be.
