Legal Duty to Retreat vs. Moral Duty to Retreat

[Glenn E. Meyer]

Let's stay with the issue and not name call.

Also, it's a thread drift to argue about bystander intervention - that wasn't the main thrust.

I think KingEdward is trying to focus the issue.

 

[OldMarksman]

Do you know of any qualified instructors who recommend clearing a house, or doing anything other than getting to a safe place except to attend first to the safety of family members?

I guess the answer is "no."

What's your definition of "qualified instructor"?

Come now! How about the people at Gunsite, Thunder Ranch, Front Sight, SIG Sauer Academy, and LFI1 and 2, just for a start?

Our firearms instructors in the Army didn't recommend hiding and calling 911.

Most qualified instructors do recommend getting to a safe room and calling 911. You seem to think you have superior knowledge.

Do you really think that the Army recommends that a civilian acting alone try to clear a house?

I have noticed that most police do recommend doing just that.
But in my experience, most police don't have a very high regard of armed non-police citizens at all.
Some even think that they, the police, are "the thin blue line separating law and order from anarchy".

Irrelevant, I'm afraid, to the question of whether qualified instructors recommend that a civilian attempt clearing a house.

By the way, I'm told that the answer is universally "no.' I've come to that conclusion based on reading books, reading internet posts from people who have attended such training, and yes, from a police officer I know who has been to Gunsite and who trains SWAT teams and snipers along with other officers in his department. He has never indicated any disdain for me as an armed citizen, though he knows that I haven't had his level of training.

 

[Wildalaska]

For the record, there are NO such pictures, and NEVER WILL BE.

And here I thought you only broke promises to women. Come over and hook up my printer.

Spiff, Pastor Mielke is an excellent example, good call

WildgoogleitAlaska ™

 

[BillCA]

You are in your bedroom. You hear the door being kicked in and you arm yourslef and see a guy unhooking your Xbox. You hit him with the surefire and he turns to run away with your Xbox......

You shoot him? You legally can, do you? Or do you slam the bedroom door and call 911?

Well, you have sort of answered your own question, haven't you? If he flees the house he is no longer a viable threat to me, therefore there is no longer an imminent danger to me. And, while one may have the legal right to shoot the intruder ... and perhaps a moral duty to enforce the safety of your home... his immediate flight does not demand that you shoot him.

Also, you'll note that I am not nit-picking your terminology of "hit him with the surefire" by claiming I would not get close enough to physically assault the creep with a flashlight.

In the situation you describe, from a purely legal standpoint, if you shot the burglar the moment you identified him as an intruder, you'd be legally justified. It could be morally justified in the sense that the if the criminal has such disdain for his own personal safety by invading an occupied home that he will resort to any means he desires to carry out his goals, including homicide.

One set of "morals" can be countered by another set of moral values. If you really believe that it is morally superior to step out of the side exit of a McDonalds and walk away when a homicidal nutjob is killing people, rather than use an effective tool to stop him when the opportunity is immediately available, then I hope you have the fortitude to think about all those who died after you made your choice.

 

[Evan Thomas]

But there is also an obligation to make sure, if possible, that no one else is hurt through your own action; and that should include the person who is threatening you,

No, you are not obligated to make sure that the person threatening you is not hurt by your actions.
This is total nonsense.

EasyG, if you're going to respond, have the courtesy to respond to someone's complete thought, rather than taking a snippet out of context.

What I said was that you have such an obligation, if you can protect yourself by other means than the use of deadly force. No one who is arguing for a moral duty to retreat has said that you have an obligation to be a victim, or that you shouldn't exercise your right to self-defense. But self-defense means protecting yourself by whatever means are available and necessary, up to and including, as a last resort, deadly force.

The use of deadly force is, and should be, a last resort -- what part of that isn't clear to you? If a lesser means of defending yourself is available, then you have a moral duty to use it in preference to deadly force. The reason for this has everything to do with the moral good of not harming someone else if it's avoidable... it's also true that it has a bit to do with common sense, i.e. protecting yourself from the legal ramifications of using deadly force, but that's a separate issue.

 

[OldMarksman]

Posted by WA:

The question is simple: If you can avoid legal shooting, do you do so?

It would be most interesting to have a learned legal opinion on whether that question makes any sense at all.

If you can avoid shooting, is the shooting necessary? If it is not necessary, can it be legal? Maybe in some states, probably not in others, I would surmise.

Yeah, I know, a lot of lay people have, though applying dictionary definitions in the absence of legal education, interpreted their castle laws as permitting shooting simply because of a break in. However, many such laws simply state--explicitly, as a matter of fact--that the fact of the break in creates a presumption of reasonable belief of necessity. That pesumption may be rebuttable. It's gonna depend on the evidence.

And in how many other states does the context of the entire legal mosaic, or the case law, say the same thing?

Doesn't matter to me. If I can avoid shooting, I will not shoot.

 

[Wildalaska]

If it is not necessary, can it be legal?

Yes. In the example I gave with the Xbox, with no need to shoot, it would be legal in all states to shoot.

IIRC

WildihaveotherexamplesAlaska ™

 

[#18indycolts]

it would be legal in all states to shoot.

until the prosecuters get a jury to agree that he turned to run away and your life wasn't in danger. Not disagreeing with you but it has happened.

 

[BillCA]

What I said was that you have such an obligation, if you can protect yourself by other means than the use of deadly force. No one who is arguing for a moral duty to retreat has said that you have an obligation to be a victim, or that you shouldn't exercise your right to self-defense. But self-defense means protecting yourself by whatever means are available and necessary, up to and including, as a last resort, deadly force.

One can cause injury to others through inaction as well. It is all well and good to seek to avoid injuring other people and especially to avoid killing others unnecessarily. We cannot always predict that a given person will absolutely go on to commit another crime or an even more violent act. But we can, as rational adults, recognize when a person has violent intentions and/or is likely to commit other violent acts to further his illegal activities.

In the example I gave above, to WA, "retreating in safety" from a restaurant where an active killer is shooting people when you have the means and opportunity to stop him can be considered both "moral" (you retreated rather than to employ deadly force to protect yourself) and immoral (you let some number of others die instead of using the means at your disposal to prevent those fatalities).

How would you decide?

 

[stargazer65]

In the Xbox example I would probably call 911 and wait with my family with a gun in a room. King Edward said he would cover the BG with his muzzle while the BG left with his property. His may be the better decision, not sure yet.
In both cases we came to the same conclusion that shooting the BG was not necessary, and maybe even immoral.
Yet, I said there is a moral duty to retreat, he said there is not. Are we splitting hairs?

 

[Wildalaska]

until the prosecuters get a jury to agree that he turned to run away and your life wasn't in danger. Not disagreeing with you but it has happened.

See the Mielke case referred to

As long as he is inside the house, doesn't matter...fire away with impunity

WildcheckyoulocalsatatutesofcourseAlaska ™

 

[spacemanspiff]

One can cause injury to others through inaction as well.

I call that an untrue statement. If I choose not to act on behalf of someone else, am I the one causing their injuries? No, it is the person actively hurting them that is to blame.

In the example I gave above, to WA, "retreating in safety" from a restaurant where an active killer is shooting people when you have the means and opportunity to stop him can be considered both "moral" (you retreated rather than to employ deadly force to protect yourself) and immoral (you let some number of others die instead of using the means at your disposal to prevent those fatalities).

Take that scenario and play it out a little further. You are eating at a restaurant your wife and child are with you. You are carrying your sidearm.
A man enters, and pulls a gun to rob the host at the register. He fires the gun in the ceiling, and is paying little attention to the crowd, he only wants the bag filled with the money from the register.
You have the choice, to move your family towards the kitchen were you can escape through the backdoor, or you can choose to engage and have a gunfight across tables of other restaurant patrons.


You can 'retreat in safety' and keep you and your loved ones as secure as possible. Are you responsible for the safety of everyone else in the restaurant?

 

[Evan Thomas]

In the example I gave above, to WA, "retreating in safety" from a restaurant where an active killer is shooting people when you have the means and opportunity to stop him can be considered both "moral" (you retreated rather than to employ deadly force to protect yourself) and immoral (you let some number of others die instead of using the means at your disposal to prevent those fatalities).

How would you decide?

I'd say both options, retreating or intervening, would be morally acceptable choices. It's my first responsibility to protect myself, so getting the heck out of the restaurant would be fine. I have neither a legal nor a moral responsibility to defend strangers, especially if it involves putting myself at risk; and it would be both naive and unrealistic to postulate that I could intervene in your restaurant scenario without endangering myself at all.

If I thought I could intervene (by shooting) relatively safely, and without further endangering other patrons, which is a big issue in this situation, I might choose to do so. That would be a moral choice in this situation, but it would be a choice, not an imperative. More likely, my intervention would consist of doing the "call-911-and-be-a-good-witness" thing, which is, IMHO, a moral and responsible course of action in a situation like this. How I'd feel, emotionally, about having stayed out of the line of fire when intervening might have saved lives is another issue, but it's entirely separate from the ethical one.

 

[BillCA]

I call that an untrue statement. If I choose not to act on behalf of someone else, am I the one causing their injuries? No, it is the person actively hurting them that is to blame.

Ever heard of the legal phrase an act of omission?

Take that scenario and play it out a little further. You are eating at a restaurant your wife and child are with you. You are carrying your sidearm.
A man enters, and pulls a gun to rob the host at the register.

Non-sequitur. There is a major difference between a robbery and mass-murder. The robber at the counter demanding money may or may not injure the cashier, staff or other patrons. The mass-murderer shows his intentions to kill from the beginning.

Using your addition of the wife and family, certainly I want them heading out the door to safety, with me performing the rear-guard action. If they have fled to safety and I still have the opportunity to stop the carnage, I'll probably take the shot(s) to do so.

 

[BillCA]

If I thought I could intervene (by shooting) relatively safely -- if I were behind cover and the shooter couldn't see me, for example -- I might choose to do so. That would be a moral choice in this situation, but it would be a choice, not an imperative.

I concur that taking the shot is not 100% risk free, but if there is a good chance of stopping the killer, it would be difficult to live with the idea that I simply walked (or ran) away and other people died because of that choice. This differs from "survivor's guilt" because rather than being saved by random chance, I would know that taking the least risk option would likely cost others their lives.

More likely, my intervention would consist of doing the "call-911-and-be-a-good-witness" thing, which is, IMHO, a moral and responsible course of action in a situation like this. How I'd feel, emotionally, about having stayed out of the line of fire when intervening might have saved lives is another issue, but it's entirely separate from the ethical one.

This is where I disagree. If there is a moment where you, crouched behind some form of cover or concealment with gun in hand and have an opportunity to shoot a mass-killer with what appears to be a high degree of success... but instead you choose to exit the establishment, find cover and dial 911, you will have to question your moral values and whether you should ever expect any other person to provide you with the smallest of aid when your life is at risk.

Not for the choice you made, but if others have your same outlook, why should any citizen expose his/herself to any liabilty or risk to pull you from a smoking car wreck, even at a time when the risk is low? If your choice is to always take the "retreat" option, then do you have any right to expect other citizens or emergency workers to take any risks for you, your daughter or other family members?

Those who claim that their only duty is to look out for themselves and their own family are not, IMO, living up to their responsibilities as citizens.

 

[OldMarksman]

In the example I gave with the Xbox, with no need to shoot, it would be legal in all states to shoot.

As long as he is inside the house, doesn't matter...fire away with impunity

Legal opinion? I don't think so.

Sound advice? I don't think so.

 

[brinky]

The question posed is would you flee or fight or should you do either. If you're threatened or FEEL if your life is threatened you should be able to stand your ground and defend yourself. What good does it do to run but to reenforce violent behavior of the assailant. Just like running from an aggressive animal. Chances are they'll just repeat this behavior and it will be more violent the next time. Any one who defends themselves instead of running away should not feel guilty in anyway. The assailant made the decision to die, you didn't make the decision to kill them.

 

[spacemanspiff]

Any one who defends themselves instead of running away should not feel guilty in anyway. The assailant made the decision to die, you didn't make the decision to kill them.

That is a personal decision one comes to. Not something that can be expected to apply to every Tom Dick Harry and Jane out there.

 

[stargazer65]

What good does it do to run but to reenforce violent behavior of the assailant. Just like running from an aggressive animal. Chances are they'll just repeat this behavior and it will be more violent the next time.

Except people are not Pavlov's dog.

Oh... Hi brinky, welcome to TFL.

 

[stargazer65]

Spiff wrote:

That is a personal decision one comes to. Not something that can be expected to apply to every Tom Dick Harry and Jane out there.

How true! I'm glad my morals aren't dictated by popular decision. Even I, as a moral absolutist can appreciate freedom of conscience. Well said Spiff!