Legal Duty to Retreat vs. Moral Duty to Retreat

[Evan Thomas]

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.

Bill, you have a knack for twisting what's been said ever so slightly in order to further your arguments.

If I were, as you describe, "crouched behind some form of cover or concealment with gun in hand [with] an opportunity to shoot a mass-killer with what appears to be a high degree of success," believe me, I'd already be committed to taking the shot. With the proviso I added after you pasted what I wrote, of being able to do so without further endangering bystanders -- of course, given all that, I'd be shooting.

To imply that I said I'd walk out at that point is to put words in my mouth that I never uttered, and I'd prefer that you not do that.

That wasn't the situation I originally posited. It seems far more likely to me that a person in that situation wouldn't be able to get a clear shot without endangering herself or other innocents, and that, I think, muddies the ethical waters to the point that removing herself to safety and intervening by calling 911, etc., would be a valid, and probably a better, choice.

As I said recently in another thread, EMT's and other first responders are taught that their first responsibility is to be sure the scene is safe, so they don't put themselves at risk of becoming another victim. I think this is a reasonable model for anyone who is contemplating intervening in a life and death situation.

It's pretty to imagine oneself, as it were, riding to the rescue, but in the real world, the horse throws you, you don't see that other bunch of bad guys behind the rock, and the damsel in distress turns out to be Bonnie Parker...

 

[Wildalaska]

Legal opinion? I don't think so.

Sound advice? I don't think so.

Under NY Penal Law § 35.20(3), a person in possession or control of––or licensed or privileged to be in––a dwelling or occupied building, who "reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon * * * [that] person when he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of [the] burglary."

The legal advice is sound. The rest is irony

WildandyestherearenuancescheckyoulocallawAlaska ™

 

[Senator Vitaman]

Most progressive states have some form or another of Castle Doctrines, which eliminate the Legal Duty to Retreat in ones home, and frequently a place of business.

What do you mean by "progressive"? Actually making progress or just liberal? I'd say it's primarily the conservative states that have castle doctrine.

I would say that I'm not sure if you have a moral duty, if noone else is in danger and the alternative is a firefight you probably have one. However, if it's either a firefight or a safe retreat, the safe retreat is the smarter option

 

[Donn_N]

I find it interesting in this discussion that most people seem to be assuming only two possible choices. Either you retreat in 100% safety or you defend with 100% success.

In a real world scenario, a total 100% safe retreat is probably rare. On the other hand, you could have a retreat that was 90% or 80% safe while engaging an armed BG may give you only a 50% chance of absolute success (i.e., no good guy injuries or deaths).

It has to be considered that when you choose to engage the BG, you are taking a risk of injury or death to yourself and possibly bystanders. This of course depends on the scenario, but any time bullets start flying, injury or death is a possibility. And it doesn't always just happen to the bad guys.

There was a recent story regarding a home invasion in College Park. Gunfire was exchanged and a complete innocent was hit. She survived, but in our perfect fantasy world, innocent bystanders getting hit never seems to be a possibility that is given much, if any, consideration.

Also, take the recent attack on two men in a hotel room in, I believe, Virginia. While this was obviously a case where retreat was not even an option, the good guy did receive two life threatening shots. Fortunately, he survived and the two bad guys he hit did not, but it clearly demonstrates that engaging the BG can have a less than optimum outcome.

 

[stargazer65]

I understand your point Donn_N, and it's very true, but I don't see how we can address all these possibilities in one thread. We're having enough trouble trying to understand each other when we simplify the issue.

 

[Thermodyne]

In MD. the excuse has been used that a person "could be invited" into a home and then murdered as a home invader. And with Baltimore City and county holding almost half the votes, only Federal intervention will change it.

 

[BillCA]

Bill, you have a knack for twisting what's been said ever so slightly in order to further your arguments.

We all do it in some form to attempt to make a point.

To imply that I said I'd walk out at that point is to put words in my mouth that I never uttered, and I'd prefer that you not do that.

And this is where time-lag sets in - I was composing that post while you were writing another, I believe. And it was in response to your comment that you would...

More likely, my intervention would consist of doing the "call-911-and-be-a-good-witness" thing, which...

And that, of course, was interpreted as departing outside to dial 911 and be the good witness.

I also suggest that the harsh reality of a situation where someone is on a shooting spree in a crowded place, nothing will be clear cut and simple to decide. Your options to retreat will be complicated by other people in the way for instance. Your attempts to ID the shooter and his location will be hampered by panic stricken people in your line of sight. That "clear shot" at 15 feet isn't quite so clear if there are more people beyond the perp at that distance (what if you miss?) or others suddenly standing or running through your line of fire. You needn't wait forever and put yourself at risk to get a "clean shot" -- if it isn't likely, retreat may be the only viable option. You're unlikely in the extreme to get a 99% clean shot. But a 70% clean shot may be the only one you get. Some will argue that if nothing is done or the shot not taken, those same innocents will be dead anyhow in a matter of seconds or minutes. Anyone in that situation has to determine what their own moral philosophy is -- is it better that you do nothing and let the killer slay the innocents rather than potentially have innocent blood on your hands? Or is it better to stop the killing at 9 victims, instead of letting it rise to 10, 15, 30 or more, even if it means one of your shots strikes a potential victim?

If we limit ourselves to simple 1:1 situations, I don't know that there is an absolute moral duty to retreat in every circumstance.

 

[OldMarksman]

Under NY Penal Law § 35.20(3), a person....

You said "in all states"....

.."reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon * * * [that] person when he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of [the] burglary."

But you said "as long as he is in the house." Nothing at all about what one reasonably believes to be necessary. And remember, necessity was the key question. If not necessary, can it be legal?

The legal advice is sound.

Is that really legal advice, or a simple parroting of the wording of the statute?

Do you really know what you are talking about?

No offense intended, but I learned long ago to not rely on a lay person's interpretation of the wording of any statute taken out of context, made without knowledge of case law, and based on dictionary definitions.

And I think the state to state variation may be critical here.

 

[easyG]

Originally Posted by Vanya
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.

This is simply not true.
There is no moral or ethical (and often no legal) obligation for an armed person to use less than lethal force when protecting themselves, others, and sometimes even property from a threat.

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.

Again, no. This is wrong.
Where is it stated that a person must use deadly force only as a "last resort" when defending oneself from a deadly threat?
There's no such law in North Carolina.

The use of deadly force is, and should be, a last resort -- what part of that isn't clear to you?

This is simply your opinion.
And it is an opinion not shared by everyone (thankfully).

If a lesser means of defending yourself is available, then you have a moral duty to use it in preference to deadly force

.
This is simply not true.
If I have a baton and a handgun, and someone attacks me, I am under no legal or moral obligation to first try to subdue the attacker with the baton before resorting to the handgun.
This is a notion of your own creation.

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.

Apparently the law makers if NC disagree with you, as I am legally allowed to use deadly force to defend myself and my property.

 

[Archie]

With the Understanding "Laws" Over-ride Morals...

Knowing one can be charged in certain jurisdictions based on the laws passed by pro-criminal legislators, one must follow the laws or stand the consequences; okay, that part notwithstanding:

I submit a citizen in his or her lawful pursuits has no moral or ethical obligation to surrender one's ability to conduct one's lawful pursuits, business, affairs or movement simply because a scoff law decides his unlawful pursuits conflict.

I will stipulate one might choose to ethically retreat to avoid serious danger or damage to others, or if faced with an adversary one knows to be mentally or emotionally incompetent. But that's the extreme exception.

 

[Steviewonder1]

Moral Duty to Retreat??

Not in Georgia A Castle Doctine State. You break into my home and I will kill you dead unless I see who you are and recogonise you in a few milliseconds. I will not say anything like STOP Get Away From Here that the neighbors will not likely hear. You are shot dead and I will record my 911 call with all of the information to be played at your unlucky survivors court cases. Time for relaxation time.....

We are not promoting eugenics as reasons to shoot on TFL. GEM

 

[OldMarksman]

Where is it stated that a person must use deadly force only as a "last resort" when defending oneself from a deadly threat?
There's no such law in North Carolina.

Legal opinion? Really?

My lay reading indicates that in NC, deadly force may be used when necessary to prevent or terminate certain unlawful acts.

Would not "when necessary" always mean "as a last resort"? How can an act possibly be necessary it there are other alternatives?

14‑51.1. Use of deadly physical force against an intruder.
(a) A lawful occupant within a home or other place of residence is justified in using any degree of force that the occupant reasonably believes is necessary, including deadly force, against an intruder to prevent a forcible entry into the home or residence or to terminate the intruder's unlawful entry (i) if the occupant reasonably apprehends that the intruder may kill or inflict serious bodily harm to the occupant or others in the home or residence, or (ii) if the occupant reasonably believes that the intruder intends to commit a felony in the home or residence.
(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder in the circumstances described in this section.
(c) This section is not intended to repeal, expand, or limit any other defense that may exist under the common law. (1993 (Reg. Sess., 1994), c. 673, s. 1.)

 

[easyG]

Would not "when necessary" always mean "as a last resort"?

No.

Nowhere in NC law does it dictate that one must do everything possible to avoid using deadly force when defending oneself.
The very notion is foolish beyond comprehension.

 

[OldMarksman]

Not in Georgia A Castle Doctine State. You break into my home and I will kill you dead unless I see who you are and recogonise you in a few milliseconds. I will not say anything like STOP Get Away From Here that the neighbors will not likely hear. You are shot dead and I will record my 911 call with all of the information to be played at your unlucky survivors court cases. Time for relaxation time.....QUOTE]

One presumes that you would do so if and only if you reasonably believe that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence or you believe that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony.

It would prove a little tense to have shot someone otherwise simply because you didn't recognize them, wouldn't it?

http://law.onecle.com/georgia/16/16-3-23.html

 

[Wildalaska]

Do you really know what you are talking about?

Well its been 15 years since I jury tried a self defense case, how 'bout you?

You said "in all states"....

Looks like its the same in NC....

I say again: Under the Xbox facts as I gave them, the legal opinion is sound. But the irony was more important and thats the forest you are missing as you gaze at the trees.....

Not in Georgia A Castle Doctine State. You break into my home and I will kill you dead unless I see who you are and recogonise you in a few milliseconds. I will not say anything like STOP Get Away From Here that the neighbors will not likely hear. You are shot dead and I will record my 911 call with all of the information to be played at your unlucky survivors court cases. Time for relaxation time.....QUOTE]

Thats the bloodthirsty gun owning spirit I am talking about! Neca eos omnes. Deus suos agnoset!

I pray you wont make a mistake....bad for the gene pool.

WildforyoursakeAlaska TM

 

[OldMarksman]

No [does "when necessary" always mean "as a last resort"?]. Nowhere in NC law does it dictate that one must do everything possible to avoid using deadly force when defending oneself.

The very notion is foolish beyond comprehension.

Legal opinion? Do you actually believe that you could successfully argue that something had been necessary when it was avoidable? That it had been necessary when an alternative would have sufficed? On what basis would you put forth your contention? What does your attorney say?

 

[Donn_N]

I understand your point Donn_N, and it's very true, but I don't see how we can address all these possibilities in one thread. We're having enough trouble trying to understand each other when we simplify the issue.

You're right. I just find it interesting that the general mindset seems to be one of invincibility. As if having a gun and being in the right is going to protect them or bystanders from a BG's attack.

 

[Donn_N]

I also suggest that the harsh reality of a situation where someone is on a shooting spree in a crowded place, nothing will be clear cut and simple to decide. Your options to retreat will be complicated by other people in the way for instance. Your attempts to ID the shooter and his location will be hampered by panic stricken people in your line of sight. That "clear shot" at 15 feet isn't quite so clear if there are more people beyond the perp at that distance (what if you miss?) or others suddenly standing or running through your line of fire. You needn't wait forever and put yourself at risk to get a "clean shot" -- if it isn't likely, retreat may be the only viable option. You're unlikely in the extreme to get a 99% clean shot. But a 70% clean shot may be the only one you get. Some will argue that if nothing is done or the shot not taken, those same innocents will be dead anyhow in a matter of seconds or minutes. Anyone in that situation has to determine what their own moral philosophy is -- is it better that you do nothing and let the killer slay the innocents rather than potentially have innocent blood on your hands? Or is it better to stop the killing at 9 victims, instead of letting it rise to 10, 15, 30 or more, even if it means one of your shots strikes a potential victim?

In a situation like this where chaos is reigning supreme, there is one more danger you face if you take out your gun and start popping off rounds. Besides the possibility of hitting bystanders, or drawing the attention of the gunman who may then start shooting at you, you may attract the attention of someone else in the establishment who is armed and either doesn't realize you're not the shooter or thinks you may be an accomplice.

 

[easyG]

Thats the bloodthirsty gun owning spirit I am talking about

Since when is one considered "bloodthirsty" for merely defending ones self, family, and/or property from those who have made the decision to place their own life in jeopardy by invading another's home, or by threatening another's life?
The very notion certainly adds insult to injury.

 

[OldMarksman]

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

....Looks like its the same in NC....

Do you interpret a requirement that an actor reasonably apprehends that the intruder may kill or inflict serious bodily harm to the occupant or others in the home or residence, or reasonably believes that the intruder intends to commit a felony in the home or residence, as permitting the use of deadly force under any circumstance "as long as the intruder is in the house"?

Really?

On what basis?