Legal Duty to Retreat vs. Moral Duty to Retreat

[pax]

You might recall this is the state where a man shot someone for stealing something from his NEIGHBOR'S yard and was no-billed by the Grand Jury.

Texan ~

That's not why Joe Horn shot the thieves. It is why he confronted them, though. He went outside to confront the thieves who were stealing his neighbor's property. However, he shot because the thieves turned and advanced on him, posing a threat to his life.

If his story of self-defense (in broad daylight, not after dark) had not been corroborated by the plainclothes cop who saw it happen, he might have had a more difficult time of it.

Even in Texas.

pax

 

[Big Ugly Tall Texan]

I stand corrected... but then again, maybe not

In the 90s, I was sports editor of the Marshall News Messenger.

I also wrote a weekly column on guns - not camping or fishing or hunting - just guns.

In one of those columns, I addressed the issue we discuss here. Partly to see what I could stir up, I stated the opinion that shooting someone taking stuff from your house would NOT be justified.

The local DA wrote a lengthy letter to the editor challenging me and stated in the letter that he would never prosecute someone under those circumstances.

I think that mind set is prevalent over much of the state - with the exception, of course, of Austin - our version of San Francisco.

Can I say it again?

God Bless Texas.

 

[Microgunner]

God Bless Texas.

And all who breath her air.

 

[bababooey32]

Austin - our version of San Francisco.

Hey! Be nice!

Trust me, Austin is infinitely better than SF!!! Being a transplant from the People's Republic of Santa Monica, I can tell you that Austin is still right of center!

 

[Big Ugly Tall Texan]

Right of center...

Compared to the REST of Texas?

 

[bababooey32]

No, compared to the rest of the country! As the most liberal city in Texas, it is still right of center compaared to the national average, imho.

 

[Big Ugly Tall Texan]

True, but...

Take a poll in Silsbee or Kountze and see what they say.

One thing about Austin for sure, the place has some great scenery.

 

[Evan Thomas]

So right then he's not a threat, he's a good distance away, and you know you have time to scoop up the family and make that "tactical retreat."

And how do you know this? If you're wrong in this snap judgment the price paid will be too terrible to bear. You'll not make this mistake twice.

I know it because peetzakiller told me so:

You KNOW without a doubt in your mind that you have time to get in your "safe room" and call the police.

I was responding to the scenario, and associated moral question, he posed. Of course it's possible to argue that you could never "KNOW" those things for certain. But that's not responsive to the question he was asking.

And in fact I think it's reasonable to assume that someone who is 50 feet away and in the process of grabbing your stuff isn't an immediate threat. In the scenario as given, how likely is it that someone who has announced his intention of robbing you, and is focussed on picking up your belongings, will be so enraged that you're daring to retreat from him that he'll drop everything and come after you? Sure it's possible -- but likely? I don't think so. And even if he does, in the situation as given, you've time to stop retreating and shoot, so why not attempt the tactical retreat? And yes, he could in theory pull a gun and start shooting from 50 feet away, but in the situation peetzakiller posed, his hands are full of stuff...

If you believe that shooting someone should be an absolute last resort, then morally it's a bad shoot, no matter the legality of it.

 

[OldMarksman]

I agree that "out in the world" there are an infinite number of situations that may require an similarly infinite number of tactics, including kicking, scratching, tripping, biting etc.

All of which tactics are likely, unless you have already been set upon physically and very violently by an assailant, to be viewed as fighting, which would likely preclude a defense of justifiability should deadly force later come into play.

And if you are in a jurisdiction in which an attempt to retreat (if possible) is necessary to justify deadly force, scratching and biting just might provide evidence that might persuade others that a defendant had never considered retreat.

I'll limit my less-than-lethal tactics to the use of firm language and an effective harsh irritant dispenser, and I'll keep my body away from an assailants feet, knees, and fists, my extremities, head, neck, and torso away from his knife, and my gun away from his hands. I'll avoid any action that might provide evidence of what might appear to constitute either aggression on my part or consent to mutual combat, either of which would greatly weaken my defense.

And if the assailant has "A, O. and J" and I have no reasonable means of preclusion, I will use deadly force, with great regret but with no moral or ethical reservations at all. I hope that the evidence, in including any eye witness testimony, is sufficiently persuasive to others after the fact.

 

[Wildalaska]

I can answer the question, based upon my personal moral values: If a thief (is caught) breaking into your house (at night), there is no bloodguilt (no unlawful act) in his death. (this is the basis for all "castle doctrine" laws)

Now see Al, ya can't answer like that unless we discuss the basis of those values.....indeed, isnt the formulation of a common moral code based on an evaluation and agreement among all that X is the code and Y is not?

And two pages later, nobody has looked at my cats

Too much focus I think on the vagaries of what would justify the retreat in a tactical sense whilst ignoring the basic issue of retreat qua retreat


WildohnohavewelostmichaeljacksonAlaska ™

 

[ImprobableJoe]

I'll limit my less-than-lethal tactics to the use of firm language and an effective harsh irritant dispenser, and I'll keep my body away from an assailants feet, knees, and fists, my extremities, head, neck, and torso away from his knife, and my gun away from his hands. I'll avoid any action that might provide evidence of what might appear to constitute either aggression on my part or consent to mutual combat, either of which would greatly weaken my defense.

And if the assailant has "A, O. and J" and I have no reasonable means of preclusion, I will use deadly force, with great regret but with no moral or ethical reservations at all. I hope that the evidence, in including any eye witness testimony, is sufficiently persuasive to others after the fact.

Sounds fair to me. You do what you can to avoid and deescalate without putting yourself in harm's way, and if necessary you deliver the least harm available that ends the threat without putting yourself at risk. You shouldn't have to wait until someone beats you up to justify protecting yourself. All you need to do is back up and try to leave, and not say anything to escalate the situation. After that, your attacker takes his life in his own hands.

 

[spacemanspiff]

I dunno Al, thats fairly close to Mosaic law regarding self defense.
It would be interesting if there was documentation that states are basing their Castle Doctrines on something written thousands of years ago.


spacemani'llbelieveMJacksonisdeadwhenDNAconfirmsitishim;ihaveasneakingsuspicionitsallahoaxtocoincidewithanewcdreleasefromthepervertasasortof'resurrection'spiff

 

[OldMarksman]

Thoughts on Standing Your Ground vs. Retreating

As stated in the OP, many states have castle laws that eliminate any duty to retreat from or within the home or some other places, and others have laws that extend the obviation of any requirement to retreat to any place in which someone has the legal right to be.

At least two other states in the Pacific Northwest have had state supreme court rulings affirming the right to use deadly force without having to attempt retreat.

Some other states still do (quite unreasonably to say the least, in my view) require retreat from or within the home, and still others require retreat in other places, if, of course, it is possible to do so with complete safety. In most, there's no explicit statutory wording to that effect, it's just the way it is.

According to my readings, the original intent of the duty to retreat, as set forth in the common law, was to provide a means to distinguish between legitimate self-defense and either unjustifiable murder or the result of mutual combat. This was when men carried swords and daggers.

That might have been excellent reasoning at that time, but it preceded the adoption of portable firearms for self protection. You could run "to the wall" from a man with a sword or dagger, but you cannot outrun a bullet.

This raises a number of questions.

One may have been answered. If you are set upon by a gunman (unknown a the time the concept came about), is retreat even a reasonable part of the equation?

Another is whether, if one is forced to use deadly force to protect himself in a "stand your ground" jurisdiction and has lawfully elected to not attempt retreat at all, might he be forced to be somewhat more reliant on other evidence to support a defense of justifiability than if he had chosen otherwise.

I don't think this will affect me--we still have to retreat if we can where I live, and my wife cannot move very fast anyway. But I thought the question to be worth pondering.

 

[ImprobableJoe]

That might have been excellent reasoning at that time, but it preceded the adoption of portable firearms for self protection. You could run "to the wall" from a man with a sword or dagger, but you cannot outrun a bullet.

This raises a number of questions.

I'm not sure that it does. I would think that once a person shows or draws a firearm against you, that automatically raises the level of threat to the point that you would be legally protected if you drew and shot. Like you said, you can run away from a blade. Once the other person shows a gun, all bets are off.

 

[OldMarksman]

It would be interesting if there was documentation that states are basing their Castle Doctrines on something written thousands of years ago.

You can find wording similar to parts of some modern castle laws in the Code of Ur Nammu of 4000 years ago, and you can trace it as it evolved through Codex Hammurabi and Mosaic Law.

The doctrine existed in the English Common Law that dates back eight or nine centuries.

Yes, a link between Mosaic law and the Common Law would be interesting. Any legal scholars care to comment?

But the link between the Common Law and the state laws is not at all in question. All but one of our states originally based their laws on the Common Law as it existed at the time of their admission to the Union. (Hint: they have parishes rather than counties). Yes, it's even true where they say "aloha."

My question is, when did the states start eliminating the castle doctrine from their statutory and case law, and how and why?

 

[OldMarksman]

I would think that once a person shows or draws a firearm against you, that automatically raises the level of threat to the point that you would be legally protected if you drew and shot. Like you said, you can run away from a blade. Once the other person shows a gun, all bets are off.

I agree , and that's what I was trying to say. I know that at least one court said so about a century ago, plus or minus.

Question is, is that widely accepted, as I would hope?

 

[ImprobableJoe]

Question is, is that widely accepted, as I would hope?

Probably, although it might get expensive to show it in court.

 

[Microgunner]

Once the other person shows a gun, all bets are off.

The fly in this ointment is the likelihood that reaction to the presence of the uninvited intruder's weapon will place you at a disadvantage. You must be proactive when dealing with an intruder. Anything less will be less than prudent. He chose his line of work, he takes his risks. I will shoot them cold dead if I can if they show themselves to me. I will not hunt them but I will not flee either.

 

[ImprobableJoe]

The fly in this ointment is the likelihood that reaction to the presence of the uninvited intruder's weapon will place you at a disadvantage. You must be proactive when dealing with an intruder. Anything less will be less than prudent. He chose his line of work, he takes his risks. I will shoot them cold dead if I can if they show themselves to me. I will not hunt them but I will not flee either.

That's why we have "castle doctrine" in some states. Once a person breaks into your house, they have shown criminal intent by definition.

 

[Al Norris]

I dunno Al, thats fairly close to Mosaic law regarding self defense.

Not merely self defense. Defense of property.

You can find wording similar to parts of some modern castle laws in the Code of Ur Nammu of 4000 years ago, and you can trace it as it evolved through Codex Hammurabi and Mosaic Law.

The doctrine existed in the English Common Law that dates back eight or nine centuries.

Yes, a link between Mosaic law and the Common Law would be interesting. Any legal scholars care to comment?

Thomas Aquinas. Anyone?

Now see Al, ya can't answer like that unless we discuss the basis of those values.....

I wasn't going to go any further with what I wrote, Ken. Other than to include some things that OM already listed. Oh, and the link to Aquinas - the common law link.

Over the history of western society, this "invention" of not killing for property is a relatively recent and brief belief. With the codification of so many Castle Doctrine and Stand Your Ground laws, that ethical and/or moral belief system, is swinging back towards what has always been the case (at least for American society). How far it swings, remains to be seen.