Legal Duty to Retreat vs. Moral Duty to Retreat

[Brian Pfleuger]

Of course, none of this has any relevance to the OP, which clearly stated that you can retreat with complete safety. Complete safety implies that the BG does not have a weapon capable of harming you at a distance. Retreating from a BG would a gun would be foolish in most cases, not so much if you saw them and could retreat undetected.


The argument of "how did I "know" that he couldn't hurt me?" will simply not stand up in court (in instances where retreat would be mandated). It is a "reasonable person" belief. You can not simply say "Well, how do I know he wouldn't whip out an Uzi if I tried to escape?"

 

[Wildalaska]

Thomas Aquinas. Anyone?

Summa Theologica. Question 64

Over the history of western society, this "invention" of not killing for property is a relatively recent and brief belief.

See and I cant Talmudically dispute that 'cuz you wont let me

WildimhamstrungplusiamgrievingAlaska ™

 

[OldMarksman]

Over the history of western society, this "invention" of not killing for property is a relatively recent and brief belief.

Al, understand that I know that you know more than I, but doesn't that depend on what one means by "recent"? Did not Blackstone say that one could not prevent by death a crime that would not be punishable by death?

And to go back before western concepts of ethics and law, did not the Code of Ur Hammu specify that one could kill an intruder only at night, when it was not reasonably possible for the occupant to determine that he was not intent on murder?

 

[OldMarksman]

The argument of "how did I "know" that he couldn't hurt me?" will simply not stand up in court (in instances where retreat would be mandated). It is a "reasonable person" belief. You can not simply say "Well, how do I know he wouldn't whip out an Uzi if I tried to escape?"

Well put. A good thing to remember if one does not already understand it.

 

[Aqeous]

25 pages




Well... Here is my humble take on it. (I didn't vote cause I feel like it makes things a little too black and white for my taste.)


Retreat, IMO, is the best way to secure not only your own safety, but also is a sure fire way to achieve tactical success in many realistic scenarios. I don't want to meet an intruder face to face at my doorstep. I want to be crouched down, my shotgun barrel peaking out from the corner of a hallway, a bedroom door (or worst case peace of furniture) with the red dot of my EOTech poised and ready to land that first crucial shot center mass.

I prefer the idea of "digging in"


Morally, if he goes through all that trouble to break down my front door to get to me, I am assured he meant myself and my family harm. Legally, I live in Florida so there would be no issue. And in many states that would pretty much cover the bases. Tactically, I guarantee that Mr. Bad guy will at the very least be put off guard by a crouching man peaking only his head and shotgun barrel out from behind a corner. I then decide whether or not to call out and warn him to get out or face the consequences, or, if I perceive an imminent threat, put an end to that threat with lethal force.


I'd say retreat. Let the other guy come to the place where you are most familiar, where you are armed, ready, and have a number of options at your disposal.


I don't want to meet a armed man intent of doing me harm face to face in an open field. I want to be laying down behind sand bags, peering through a scope, as that imminent threat slowly makes his way towards me.


So by this philosophy, being passive helps ensure moral, legal and tactical victory.

 

[easyG]

That's why you call the cops when there is an intruder in your home: because their duty is to apprehend the bad guy and take him to jail. Your duty, as a regular citizen, is simply to stay safe until they do so.

This mentality is one of the biggest problems in our society.

"All it takes for evil to triumph is for good men to do nothing"....a true quote if ever there was one.

It is the duty and obligation of ever law abiding citizen to stand up to the criminal element.

If you only rely upon the police you will eventually find yourself in one of two resting places:
1) A crime ridden cesspool where there is no law, or....
2) A police state where the rights of the individual are crushed under "official police policy".

Without a citizenry that is willing to stand up against criminals, the police will quickly become ineffectual and pointless, or an overbearing tyrannical force.

 

[ImprobableJoe]

If you only rely upon the police you will eventually find yourself in one of two resting places:
1) A crime ridden cesspool where there is no law, or....
2) A police state where the rights of the individual are crushed under "official police policy".

Without a citizenry that is willing to stand up against criminals, the police will quickly become ineffectual and pointless, or an overbearing tyrannical force.

False dichotomy, or excluded middle fallacy.

 

[Shawn Thompson]

Many have answered, but none have "definitively" answered the question. A few have pretended that they have...but they have not.

Does an Armed Citizen have a Moral/Ethical Duty to Retreat (complete safety)

Uhmm...NO!

 

[5whiskey]

Many have answered, but none have "definitively" answered the question.

Because there is no definitive answer that will fit every situation.

 

[Al Norris]

The Talmud was only one reference, Ken. How about Ur Hammu?; Hammurabi?; Aquinas?

Please note, while Aquinas was a religious figure, in his Summa, he was also specifying civil law. How many western societies really dispute the Just War theory? Which theory was predicated upon castle doctrine and defense of possessions.

Ken, you don't need religious texts to dispute my claim. Try history.

OldMarksman, Code 21 of Hammurabi: If any one break a hole into a house (break in to steal), he shall be put to death before that hole and be buried.

Code 22 is also instructive: If any one is committing a robbery and is caught, then he shall be put to death.

Blackstone did indeed say that the punishment should fit the crime. What was the common law punishment for the invasion of your castle?

 

[Wildalaska]

How many western societies really dispute the Just War theory? Which theory was predicated upon castle doctrine and defense of possessions.

Not to drift, but do we not recognize the power of the state is different than the power of the individual?

And does not the concept of just war itself mandate the commission of an actual attack as opposed to the threat of attack? Of course, one would have to equate the unlawful entry with a similar act on the part of the nation state, assuming arguendo that is the threat of an act of war rather than an act of war itself.....then using the morality analysis one can not respond to a threat of act of war......add to it the fact that the realationships among nation states are not subject to law qua law but rather national self interest......

But I digress...

Now I will agree that Aquinas has a civil context...however his context is religious and I would also argue that since he was influenced by Maimonides, Talmudic thought as it relates to ethics qua ethics is relevant......

But I further digress:

Because I separate matters of personal faith from scholarship, I would argue that on a philosophical and historical basis, as well as on a philological basis, the Old Testament and the comparative ethical/moral codes of Sumeria and Babylonia cannot be separated from discussion, especially in light of their clear similarity in such concepts as Lex Talionis.....

Therefore, to eliminate recourse to interpretations that can be found in portions of the talmud as they relate to laws and ethics, or indeed, even in the New Testament and the commentaries thereon by the Church fathers makes this debate while not poor, a little less rich....

The history, therefor, is intimately tied up with the "religious", since modern thought, at least till the enlightentment, was religious....

But regardless I will hold some excellent commentaries I found in reserve

What was the common law punishment for the invasion of your castle?

Under the rules: death without benefit of clergy

THUS much for the nature of burglary; which is, as has been faid, a felony at common law, but within the benefit of clergy. The ftatute however of 18 Eliz. c. 7. takes away clergy from the principals, and that of 3 & 4 W. & M. c. 9. from all acceffories before the fact. And, in like manner, the laws of Athens, which punifhed no fimple theft with death, made burglary a capital cirmeo .

But then again, how many other crimes were punishable by death...are you contending that morality or ethics are the same as they were in the time of Blackstone....

Do we not recognize the sanctity of life more now? Can we shoot the accomplice who sits in the getaway car?

WildwhewmyfingershurtAlaska TM

 

[Microgunner]

Holy crap! Ya'll guys have definitely dragged out the unabridged dictionary. I'm getting a headache trying to interpret all this high toned philosophy.

 

[bababooey32]

Wow!

I think we've hit a new threshold of boredom and blather. Sure is a lot to think about when a BG is staring you down. If you really need the Talmud and Thomas Aquinas to figure out if you;re justified in defending yourself and your property, I'd suggest that you need to simplify your moral calculator.

For legal eagles and development of the laws of the land? Fine. For a forum dedicated to discussing practical applications of force? :barf: :barf:

I'm interested only in whether I should shoot the guy with my stuff. Read this (if you haven't already) from THR: That which does not burn

When the BG is stealing more than just "stuff" (which is often the case), but items with deep sentimental and irreplacability, does that change your thought process as you consider whether to retreat or not? Simplifying the act to "stealing a VCR " is disingenuous because, as we know, thieves generally take more than that: grandpa's WWII rifle, grandma's wedding ring - in my case pieces of a 250 yr old celtic cross which marked the burial site for a relative in Ireland.

These types of items are more than just "stuff" and they represent our individual experiences, our liberty, our very being. Can I shoot to stop someone trying to steal those items? Even if I could retreat and call the police (with the full realization that this is almost equal to doing nothing at all).

 

[TailGator]

someone who is 50 feet away and in the process of grabbing your stuff isn't an immediate threat.

At my house he isn't even inside yet!

As interesting as is the discussion of legal codes punishing burglary and other unlawful entries, and as much as I would enjoy a discussion of related religious writings, the situation of self defense is not entirely the same. In the seconds or milliseconds that it takes to make self defense decisions, we cannot include the process of evidence gathering, charging, legal motions, and deliberation that are at the heart of a just legal decision. And we must admit, regardless of our political leanings, that the United States is in the minority among western democracies in carrying out the death penalty at all. I am not certain that that should affect our right to defend ourselves, however,and I rather suspect that few of any of the folks who post in these forums would give up the right to defend themselves if the death penalty was lifted. I would therefore argue that linking the legal penalty for a crime to a citizen's right to defend himself against the same crime is invalid.

While few would argue that burglary or trespassing should carry an automatic death penalty in court, the situation of a person in their home having their peace and sanctuary violated is vastly different from a court proceeding. A person who has violated that sanctuary has already displayed disregard for legal and societal norms, whether that disregard has arisen from conscious choice, mental illness, or intoxication. There is therefore a reasonable threat that they may progress to disregard the legal and societal norm of respect for human life. The idea that no threat exists from a burglar then seems to be to be a false pretense - some level of threat exists, and has to be evaluated to make a decision of whether or not to use lethal force.

In considering the several pages of this thread, it seems to me that almost everyone has agreed to retreat to a certain degree to avoid taking a human life, but the degree of retreat has varied. Some feel that they have already retreated form the world by closing the door behind them. These are not people who roam the streets looking for opportunity to kill unobserved and unpunished, regardless of how vigorously they may choose to defend their homes. Others (myself included) feel that they should retreat until retreat itself endangers either themselves or people for whom they feel responsible. I, and apparently many others, have no desire to deal with the emotional impact of taking the life - the present and the future of the dead and all that he may have meant to the people who loved him, regardless of the bad decisions he made - unless no other course is available.

The concept of confronting a thief to prevent theft is certainly more problematic. Although that would not be my choice, whether legal or not, the very folks who have argued against it have provided references to ancient laws justifying the death penalty for theft. My only response to those who use such traditions to justify their own lethal acts against thievery is to remind them that a death penalty for robbery, even in those societies whose legal code was harsh enough to prescribe such, was carried out only after whatever amount of consideration was given the offender at trial. That consideration would seem to be lacking in the immediate decision to fire on a thief.

 

[Shawn Thompson]

The same sad approach to this burglary scenario has all but been worn out. Statistically, burglaries tend to happen when you are not at home. Thus, the instrumental VCA mindset; Do you have what I want and can I get it from you safely? Most cheap thugs looking for a quick hit have no intentions of getting hurt and will not put themselves (at least in their minds) in a position to do so.

Burglaries don't happen when you are home - home invasions do! The last couple that come to mind started the same but ended very differently.

The first, a family was home in their living room, middle of the evening, gathered around the TV enjoying their favorite show when two guys kick through the front door in an aggressive attack on the family. It appears that being a VCA is a team sport these days. Being armed, the father reacts immediately by drawing his weapon and firing - he hits both attackers.

The second started in a vary similar manner. A husband and wife were both home, still during the day, when two guys kicked through the front door. The husband was bound and beaten to death. the wife was taken to a local SCS machine where she was forced to empty funds from their acount. She was then taken back home where she was raped and then beaten to death.

This is what really happens, not the false illusion that you will have all of the time in the world to react to a clumbsy, noisy burglar that awoke you from a dead sleep. The first family survived because they made up their mind to do so long before the incident happened, and they prepared themselves accordingly. The second, well maybe they planned on having time to retreat. We'll never know, they are dead.

Violent criminal actors won't spot us a few minutes to decide what we are going to do. If you are in fact the intended victim, as in those home invasions, it will come fast. Violent criminals tend to plan their attacks when it works out to their advantage, not when it works out to yours. You must act quickly, decisively, and with absolute certainty. Self-defense does not automatically equate to murder any more than instisting on retreat guarantees your survival.

 

[Wildalaska]

I think we've hit a new threshold of boredom and blather. Sure is a lot to think about when a BG is staring you down. If you really need the Talmud and Thomas Aquinas to figure out if you;re justified in defending yourself and your property, I'd suggest that you need to simplify your moral calculator.

If you dont, cant or wont understand the moral, ethical and legal issues involved in imposing deadly force on another human being, I'd suggest you refrain from posessing a firearm.

We have plenty of young men in places like the projects of Chicago who posees guns and who cant, dont, or wont understand those concepts and the results arent pretty.

WildthatsthedifferencebetweenusandthemAlaska TM

 

[bababooey32]

If you dont, cant or wont understand the moral, ethical and legal issues involved in imposing deadly force on another human being, I'd suggest you refrain from posessing a firearm.

I can simply do it without writing a dissertation on it and invoking virtually pre-historic precedent. It's really not that complicated.

I understand the need to satisfy intellectual curiosity about the roots of our current laws etc., but it is not necessary to (gratuitously, IMHO) recite passages from the Talmud and Summa Theologica in order to hold the discussion we are having here: Under threat, do you duck or shoot??

 

[Microgunner]

Hey, all this "moral" & "social responsibility" rhetoric is fine and dandy for the purpose of discussion, but, if an intruder is brazen enough to invade my occupied home, it's on! I'll not waste one second in thought of the "moral implications" but rather how to quickly and efficiently dispatch this parasite.

 

[OldMarksman]

This [(rapid, violent invasion and attack)] is what really happens, not the false illusion that you will have all of the time in the world to react to a clumbsy, noisy burglar that awoke you from a dead sleep. The first family survived because they made up their mind to do so long before they incident happened, and they prepared themselves accordingly. The second, well maybe they planned on having time to retreat. We'll never know, they are dead.

Violent criminal actors won't spot us a few minutes to decide what we are going to do. If you are in fact the intended victim, as in those home invasions, it will come fast. Violent criminals tend to plan their attacks when it works out to their advantage, not when it works out to yours. You must act quickly, decisively, and with absolute certainty.

Excellent put, Shawn. So the advice to get everyone to a safe room may well not be practical in many situations because there wouldn't be time to get there. That does not mean that it would be prudent to walk around with gun in hand looking for the source of a noise.

There has been a skit on The Best Defense showing a woman in a study who hears glass breaking and then sees a man in the house. She races him to the bedroom, wins the race, closes her door and gets her gun.

My wife would likely lose such a race, and depending on where we were and on the invader's point of entry, he might well have us cut off both from a place of safety and from a gun in the bedroom.

My solution, in addition to mindset, is to carry at home.

That seemed extreme to me when I first heard the concept mentioned, but it doesn't now.

Self-defense does not automatically equate to murder any more than instisting on retreat guarantees your survival.

The only way self defense might equate to murder that I can see would involve a shooting by someone who had himself instigated a conflict, but in the absence of a attempt to retreat, a jury might well find otherwise. I recently read something about a woman whose apartment was breached in Massachusetts. She clobbered the guy with a gum-ball machine and, because she had not tried to retreat (as is evidently required there) she was charged with manslaughter. Or did I dream that crazy story?

 

[Wildalaska]

I can simply do it without writing a dissertation on it and invoking virtually pre-historic precedent. It's really not that complicated.

really? Watch what your lawyer cites in his summation at your trial (or the DA)....

Now you could have saved a buck by using your library card

but it is not necessary to (gratuitously, IMHO) recite passages from the Talmud and Summa Theologica in order to hold the discussion we are having here: Under threat, do you duck or shoot??

Is that all this thread is about? Whether to duck or shoot?

Hey, all this "moral" & "social responsibility" rhetoric is fine and dandy for the purpose of discussion, but, if an intruder is brazen enough to invade my occupied home, it's on! I'll not waste one second in thought of the "moral implications" but rather how to quickly and efficiently dispatch this parasite.

Parasite is a relative term is it not? Is EVERYONE who "invades your home a parasite?

Now where is Al (or anyone else that cares to analyze)....that last comment got me thinking...Would it be fair to say that Blackstone, via Aquinas et al, did not look at mens rea as we know it today? For example, is it correct to say that the foundation of mens rea is biblical sin or evil? Is it further fair to say that the concept of mental illness was not considered as an exception to the evil underlying mens rea...It was moral and ethical under the Common Law to execute the insane do we do so today? So when your door bursts down in the middle of the night and you light up the intruder, and that intruder is insane, is just popping him/her a moral or an ethical act, if you can retreat from that confrontation is complete safety?

And yes, I'm sure the spin will start with this scenario and that scenario...but the bottom line is again...NO OTHER CHOICE but to take the life....or put another way, is EVERY person who puts himself in a situation where deadly force may be justifiably imposed against him or her a"parasite" that deserves eradication....I'll emphasize again...EVERY...and if the answer is no, then how is it moral or ethical to shoot when another course is available.


WildafterallwearebeyondpokingthemwithsticksinbedlamAlaska ™