Legal Duty to Retreat vs. Moral Duty to Retreat

[Evan Thomas]

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

Exactly. And if the issues were all that simple, this thread wouldn't be 25 pages long, and counting.

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??

It's not just a matter of intellectual curiosity -- it's a matter of using past thinking on the subject as a tool to help clarify one's own thinking. And it's well worth pondering the ways in which people's thinking has changed about these matters: for example, in 18th century England, people were commonly sentenced to death for relatively petty thefts -- toward the end of the century, transportation (to penal servitude in Australia) came to be seen as a humane alternative. (And if you wonder how "humane" it actually was, go read The Fatal Shore, by Robert Hughes...) And in subsequent decades, penalties changed yet again, following changes in the values of the society.

Not, as I said above, that legal standards are necessarily a good guide to one's moral responsibilities, but they're a signpost to ways that ethical standards have evolved over time. It's perhaps useful to think about those changes if you care about the ethical implications of ducking or shooting.

So there's more than one way to use the historical material Antipitas and WA are tossing back and forth; appealing to the "seniority" of a set of values (ethical system) is one use to make of it, but it's equally possible to look at the ways ethical thought has evolved and say "Jeez, I'm glad we're a bit more enlightened now..."

Vanandmichaeltotallyupstagedfarrahhedlovethatya

(Sorry, WA -- had to get that in. )

 

[Microgunner]

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

So...your arguing point here is the term "parasite"? Sheeesh.

 

[OldMarksman]

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

I think I disagree with you to some degree, TailGator, but it may be due to miscommunication.

I really don't think that the fact that a person has already displayed disregard for legal or societal norms is at all relevant, and more importantly, I don't think that the idea that his actions "may progress to disregard the ....norm of respect for human life" can in any way justify taking his. But please read on.

Rather, I think that the very act of unlawful entry does in fact provide for a reasonable belief (or "fear", if you prefer) that the danger of death or serious bodily harm is in fact imminent, as stated or implied in most of the castle laws, and that, absent other important contradictory factors, it thus justifies the immediate use of deadly force.

Your thoughts?

 

[Microgunner]

I have never read a more over thought subject in my life. If he is in your home he is a threat to you and yours. This threat must be eliminated. Do what must be done and worry about lawyers and courtrooms later. Survival is paramount. To not consider the intruder a threat is absolutely ludicrous. I wish many of you luck in the implementation of some of your philosophies.

 

[Wildalaska]

So...your arguing point here is the term "parasite"? Sheeesh.

No my arguing point is oversimplification of the nature of the living breathing human being under your gunsights when he or she is not a threat.

Let me repeat that...not a threat to your physical well being.

For if you can retreat in complete safety, that human being is not a threat to your physical wellbeing

WildcanyoudisputethatlastpointAlaska ™

 

[csmsss]

No my arguing point is oversimplification of the nature of the living breathing human being under your gunsights when he or she is not a threat.

Let me repeat that...not a threat to your physical well being.

For if you can retreat in complete safety, that human being is not a threat to your physical wellbeing

This is a complete strawman, because there's no way to know with absolute certainty (unless you happen to be in a bank vault or police station, of course) that you can retreat ANYWHERE in complete safety. That said, if someone presents a situation where you are justified in using deadly force, I and many others feel it's completely irrelevant if there are lines of retreat open. If someone presents a threat to my life or that of others, and I have the means available to me to stop the threat, I would certainly hope I would act to stop it, and do not believe I would hesitate to use all force necessary to do so.

 

[OldMarksman]

I have never read a more over thought subject in my life.

You may have have read a few pages of this thread, but an appellate brief on one real case, should it ever be required, might well outweigh this lengthy string (particularly if you were to take out the repetition), as did the SCOTUS ruling on 2A. It's important stuff.

If he is in your home he is a threat to you and yours. This threat must be eliminated.

Where castle laws exist, one is granted a rebuttable presumption that that is true. There are states where one cannot act in that manner. Why, I do not know.

Do what must be done and worry about lawyers and courtrooms later.

I've heard that too often, though not in regard to this kind of issue.

Understand that if you willfully do something that is unlawful, or if you are negligent, all the worry in the world won't help you with the lawyers and courtrooms later. Know the laws of your state beforehand.

Survival is paramount.

Yep, and staying out of jail is a close second. Coming out with some money left to live on is a close third.

My objective would be to come out of an incident unhurt, not charged, and with minimal legal expenses.

I wish many of you luck in the implementation of some of your philosophies.

Well, here's my implementation plan:

Train, practice, learn the law, stay alert, have a plan, and don't do anything dangerous or stupid.

Be able to draw quickly, shoot fast, hit the target, clear a jam--and do not shoot at anyone I cannot see. That "intruder" could be a family member or a friend. And if the guy is headed out, think twice about shooting.

Don't walk around in the house looking for an intruder and inviting ambush. Not likely to promote survival.

And don't talk to the police afterwards without the benefit of counsel.​

And by the way, the best outcome will be one with no one hurt and no shots fired. Over the years I've gone through three different situations in which intruders did in fact constitute threats, where the presence of my firearm (and probably, my obvious willingness to use it) dissuaded the invaders, no shots were fired, we all survived, and it was not necessary to "worry about lawyers and courtrooms later".

 

[bababooey32]

For if you can retreat in complete safety, that human being is not a threat to your physical wellbeing

I can't dispute the point, however a) it may be a non sequiter given the tangential discussion of protecting one's property and b) all the varriables required to be able to make your analysis may not be available or synthesized in time to make retreat viable. Finally c) that a person has engaged in the act of entering my "castle" uninvited and (probably) with force makes him a threat to my well being then and there. If I have the time/space to analyze the situation and retreat, I will. But I am not acting immorally if I do not or cannot (in time).

 

[Microgunner]

Well, here's my implementation plan:

Train, practice, learn the law, stay alert, have a plan, and don't do anything dangerous or stupid.

Be able to draw quickly, shoot fast, hit the target, clear a jam--and do not shoot at anyone I cannot see. That "intruder" could be a family member or a friend. And if the guy is headed out, think twice about shooting.

Don't walk around in the house looking for an intruder and inviting ambush. Not likely to promote survival.

And don't talk to the police afterwards without the benefit of counsel.

Sensible plan. As I stated in an earlier post, I will not hunt the intruder but will shoot him if he presents himself to me.

 

[bababooey32]

Old Marksman



Here's what makes me laugh about this thread. After all the arguments of the minutia and finer points of ancient law, from a practical application standpoint my guess is that we are all doing this:

Well, here's my implementation plan:

Train, practice, learn the law, stay alert, have a plan, and don't do anything dangerous or stupid.

Be able to draw quickly, shoot fast, hit the target, clear a jam--and do not shoot at anyone I cannot see. That "intruder" could be a family member or a friend. And if the guy is headed out, think twice about shooting.

Don't walk around in the house looking for an intruder and inviting ambush. Not likely to promote survival.

And don't talk to the police afterwards without the benefit of counsel.

Whether that is Talmudic, would meet with the approval of Thomas Aquinas or the Pope or not, or whether it is moral/ethical or not - we are all doing roughly the same thing.

Now close the thread.

 

[BikerRN]

Legal Duty to Retreat vs. Moral Duty to Retreat

--------------------------------------------------------------------------------

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.

Many other jurisdictions have extended that Doctrine into Stand your ground laws applicable to areas outside the home.

There fore, the armed citizen, under these laws, has no legal duty to retreat, even if he can do so in complete safety.

But does he have a moral/ehtical duty to do so? I postulate that the responsible armed citizen does. Vote and discuss.

Please note: The poll question is: Retreat with COMPLETE SAFETY

WilditscloudytodayinAlaska ™

In response to the original post:

Who in their "right" mind would want to be involved in a shooting if it could be avoided?

If you are looking to shoot someone I'm pretty darn sure I don't want you carrying a gun in public, or private for that matter. There is a reason that the gun is called the "Tool of last resort."

Just because something is the last option doesn't mean it is the "wrong" option in some situations. I just want to be darn sure it's the last option.

Biker

 

[Glenn E. Meyer]

Adding the nuance of complete safety is a philosophical trick to focus the argument on one point - the morality of taking a life (the implied action) when you don't have to.

Thus, adding practical concerns get us to wander away from the point. In the real world, someone in your house to commit a crime is a clear potential threat even if the odds are they don't want to hurt anyone. Enough do want to hurt people as Shawn pointed out, to remove the moral onus from you in the practical situation. But there may be practical reasons not to engage.

The open question is the abstract one in this artificial sitation.

The states that went to castle laws had a major focus on the intruder being a potential threat. That argument overwhelmed the 'softy' approach of you should flee to save the life of the BG.

Remove the threat (again defined as must happening by the OP) and then you get into the moral domain of taking a life unnecessarily.

My opinion is that in the real world (as compared to the OP), you are ruled by the practical.

The intruder may well be a threat. You have no moral compunction to discern the intruder's intent if they are clearly committing a property crime.

You do some have some moral obligation to identify the intruder before blasting away.

It could be the drunken neighbor, or the obnoxious little kid playing a prank. Retreat in those circumstances in the case of a tactical move for better ID could be a good idea to avoid the negative consequences of shooting an innocent. In the Hatori case (Japanese kid shot when he didn't understand he was lost and commands to stop - male was panicked by wife -and they could have retreated), LA dad who shot daughter who jumped out and said BOO - died in his arms, saying Daddy, I love you or Todd Vriesenga (shot a kid coming to the door to apologize for a Halloween prank - Todd gave some BS threat excuse) - reasonable tactics to get a better ID from a position of safety would have been the best idea.

Pratically, fleeing in safety may have the better overall psychological, personal and financial outcome - but that isn't an abstract moral value from the OP. I don't want blood in the living room, etc or having to deal with my and family stress disorder.

Abstractly as compared to practically, do you have a moral imperative not to take an action which would led to the intruder's possible demise? You are not an executioner nor a law enforcement officer charged with catching crooks or monsters. Do you have a moral imperative to stay safe for the future of your family even if you are willing to sacrifice yourself for the greater good?

After reading all, I've decided that I do not have an abstract moral imperative to retreat. It is moral to defend your domain and use force if it plays that way. Not to apprehend as a cop or to prevent future crimes but just to protect my domain. I might have practical reasons to retreat based on my take on the outcomes. I do have a moral imperative to try not to harm an innocent intruder. I do not have a moral imperative not to engage, however, a hostile intruder. The property vs. personal crime risk ratios are irrelevant as the personal risk is small but very real.

 

[Shawn Thompson]

OK guys, I would like to preface this by saying; this post is not intended to be argumentative. Rather a way of using a different approach to try and understand a little better where it is you are comming from with your opinions.

Looking at the pole results at the beginning of the topic, it's indisputable that the majority of those who voted feel they are not obligated to retreat - as the pole question was asked. It also seems clear that this discussion has taken a turn toward the evaluation of individual strategy vs. moral and ethical application of that stategy.

I myself tend to be a "black and white" type thinker in some manner. It's either right, or it's wrong; there are no grey areas in all but few cases. This being said, what then is right?

It seems to be a standard among some that "senseless violence" not be met with "senseless violence" - don't pass judgement yet, that's not my point. So here is a hypothetical situation:

A man attacks you. He is of substantially larger size and strength, and he has beaten you badly. He did not use any weapon to speak of, but he is not relenting. He has you pinned against a brick wall, the full weight of his strength pressed against your throat with his forearm and you can't breath. You are now concerned you are starting to fade. Reaching into your pocket you remove your favorite folder, open it and ram it into his thigh. With all the strength you have left you rip the knife to the side cutting through both flesh and fabrick easily (because it occurs to you that while not as physically able, you can still outrun a man on one good leg). His body flenches under the pain and you slide out in escape.

Now, did you commit an act of violence?

Pick out the things that make violence wrong: hate, anger, premeditated destruction of another, etc. Do you get the point? None of these things existed in your actions. Could you have fought hard enough to get away? Maybe, but it hasn't worked yet. He would have stopped once he saw you pass out. Maybe, he might not have stopped until you were dead. So from anothers point of view there may have been options not taken. The ONLY person that can make the deduction reasonably, is the person worried about loosing their life on that wall.

Have you then done anything immoral or unethical?

Let's continue. You have escaped your attacker, but there is a problem. Your knife cut a major artery, he has bled out and died from the injury.

Have you now committed an act of violence. The conditions haven't changed. There was still no hate, no anger...

If not, how can one infer a lack of morals or a lesser ethic based on anothers opinion that something else might have or could have been done, first.

Please again, this is not an argument as much as it is a query.

 

[TailGator]

I think that the very act of unlawful entry does in fact provide for a reasonable belief (or "fear", if you prefer) that the danger of death or serious bodily harm is in fact imminent, as stated or implied in most of the castle laws, and that, absent other important contradictory factors, it thus justifies the immediate use of deadly force.

You basically agreed with me (or I with you, if you prefer) until you used the word "immediate." There are no doubt burglars that are unarmed and will choose to flee if discovered; some people who have posted in this discussion have opined that they are in the majority, but I don't recall anything being cited to support that, and whether they are a majority or a substantial minority may not affect your decision in a moment in which you are dealing with an individual. So then the question is, are you justified in shooting a fleeing person? I personally answered no, because I would consider his flight to be a removal of the threat. If he advances toward me in that situation, I would have to consider that an escalation to aggression on his part, and I would be able to fire. With regret at likely taking a human life.

That decision takes a fraction of a second. Is there some risk to it? Yes, but justifiable risk for my own peace of mind.

That scenario was unarmed burglary by stealth. Do other scenarios change my logic? Of course. A burglar with a firearm in view has cut down his target acquisition time, and there is nothing to prevent him from turning and firing. We have all read instances in which the fire from such a situation went in all directions, endangering and injuring people not on the line of any exchange of fire. He is an immediate danger to myself and others, and the decision to fire must be made, in my opinion. A burglar who advances instead of retreating escalates his threat to a homeowner. The homeowner may retreat to a position that either gives the burglar an exit and/or constitutes a more defensible position, but he or she is much closer to the decision to fire. A burglar that is not visibly armed but goes to his clothing may well be going for a weapon; if the defender decides not to give up the tactical advantage of having drawn in advance of his adversary, he or she is justified in firing at that point, in my opinion, not because blood lust is justified but because the burglar chose to increase the threat. With similar reasoning, a person who forcibly enters a dwelling that is obviously occupied (lights on, TV on, me giving a verbal warning) obviously has not intentions of fleeing upon discovery. That is a threat that is already high, and in my mind the resident who gives a verbal warning that they are armed then has no real choice except to defend. Part of defense may be to retreat to a defensible position, but if the threat advances, the decision to fire or succumb to the advance must be made.

These are my standards; I won't claim that they are inviolable or universal to either other people or to all situations, but they are the things that I have thought through in consideration of both my ethics and beliefs and the more mundane consideration of the layout of my house.

I rather suspect that WA's deepest purpose in posting this poll, aside from giving us nightmares about seeing him in spandex, was to get us to think about just those issues. I hadn't let them go unaddressed entirely, but I have thought more about them as this thread progressed. Hopefully all of us have, in between the flames.

 

[Microgunner]

No my arguing point is oversimplification of the nature of the living breathing human being under your gunsights when he or she is not a threat.

Unfortunately, when suddenly faced with a felonious intruder in your home few, if any, of us are blessed with knowledge of this person's background, motivation, intent, capability, mental state, etc. That "living breathing human being" is always a threat in this remarkable situation. BOOM!

 

[Wildalaska]

If I have the time/space to analyze the situation and retreat, I will. But I am not acting immorally if I do not or cannot (in time).

I dont think ANYONE disagrees with this:

If I have the time/space to analyze the situation and retreat, I will. But I am not acting immorally if I cannot (in time).

Its the "I do not" (assuming that is voluntary/consious) that causes the debate

Now close the thread.

Oh yes sir!

WildthanksforallowingittostayopensolongAlaska ™

 

[csmsss]

Shawn, you seem to have neglected to include an adjective above. Stabbing someone is, necessarily, an act of violence. In your scenario above, it's a perfectly defensible and moral action of violence in the interest of self defense, regardless of the eventual fate of the person who attacked you.

 

[Brian Pfleuger]

So then the question is, are you justified in shooting a fleeing person?

If there are entrance wounds in the BG's back then you are pretty well going to jail pretty much everywhere in the US. Street or Home, Castle Doctrine or no. You would be very lucky to escape conviction for shooting someone in the back, except under VERY specific conditions.

 

[TailGator]

If there are entrance wounds in the BG's back then you are pretty well going to jail pretty much everywhere in the US.

I think you were in a bit of a hurry, pal. If you look at the context, it was a rhetorical question that I went on to answer. The way some folks talk about Texas law, you might get a ribbon in the Lone Star Republic. But I wouldn't want to test the legal waters, and the question all those pages ago was about moral responsibility. I couldn't handle shooting a person fleeing - that was my point. The only other way to get a bullet in the back would be if the BG twisted away in fright as the hammer was going down, I suppose.

 

[Brian Pfleuger]

I think you were in a bit of a hurry, pal.

Indeed. I had rethought my wording and was going to change it to indicate that "you" didn't mean YOU but you beat me to it. So, not so much a hurry, just badly worded.