Legal Duty to Retreat vs. Moral Duty to Retreat

[Evan Thomas]

1. A person who commits a crime for which their victim would be justified in the use of lethal force against them has chosen DEATH.

2. How about the mentally ill who do not understand the nature and consequences of their act or that is was wrong. Has that person CHOSEN death

OK, I'll bite on the "mentally ill" thing... Assuming we mean "mentally ill" in the sense of diminished capacity -- someone for whom an insanity defense would be likely to succeed -- It makes no difference to what I would do: I have no way of knowing what someone's mental state is. If they're threatening me and I can safely retreat, I will, and if I can't, then I'll defend myself with whatever force is available.

Someone who's, in effect, legally insane, who doesn't understand the nature and consequences of their actions, cannot be said to have CHOSEN death by breaking in my door or coming in through my window, any more than

... a drunk who thinks it's his own house...

... or an eight-year-old on a dare...

... or that (drunk?) woman who really, really needs to use the bathroom...

is proving, by forcing their way into my house, that they've CHOSEN death.

You can't claim to know that someone has "chosen death" any more than you can tell at a glance if they're mentally ill; you have to decide what to do based on their behavior, not on inferences about their mental state. So if you believe that anyone who comes into your house without permission is automatically an immediate threat to your life, then you'll immediately be willing to use lethal force to defend yourself.

If you believe that there's more than one reason someone might force entry, and that more than one kind of person might do so, then your response might be more conservative: retreating upstairs or to a safe room, or just getting some distance between you while you see how much of a threat they actually are: is this person a child? is this person falling-down drunk? is this person showing a weapon? is this person a huge guy who isn't showing a weapon, but outweighs you by a hundred pounds or so? All of these are things you might be able to determine more or less quickly, perhaps in a second or two, if you give yourself the opportunity to do so.

Another thing comes to mind here: if you've decided, before the fact, that anyone who forces entry is a lethal threat, then you're probably more likely to miss cues that they might not be. As I recall, there's a good bit of evidence for this kind of effect of belief on perception. (Care to comment on that, Glenn?)

 

[rampage841512]

Think so? Well, a person may use deadly physical force against an attacker to protect against unlawful deadly physical force, against burglary, kidnapping , sexual assault....

By definition, such force may cause death.

But do not give anyone the impression that they may lawfully "choose to end the life of the attacker."

You see, if a shot from your gun or cross-bow, or a blow from your bat or mallet, stops the attacker without killing him, your right to continue to use such force ceases to exist.

Most gunshot victims do survive, and if they don't, the forensic evidence will tell whatever story there is to be told.

Anyone who acts unlawfully in this regard may end up following Lee's suggestion, and get a very good seat to watch the show.

Oh, I don't disagree that a threat may be ended before the attacker is killed. And I would never advise that a person break the law after the threat is gone. That is clearly illegal.

But, as I've said before, such action in my mind is NOT immoral or unethical.

 

[OldMarksman]

But, as I've said before, such action [break the law after the threat is gone... clearly illegal] in my mind is NOT immoral or unethical.

Well, OK....

 

[OldMarksman]

A fellow who is pointing a gun at me can shoot me just as dead whether he understands the consequences of pulling the trigger or not, and if I want to survive, I have to fire before he does. Determination of legal mental deficiency is a process that occurs to determine his culpability if I don't fire first, and it takes the court systems a long time to determine it, and experts argue about it all the time.

If I or those under my protection are in imminent danger (and that is the only time I can fire) there is neither means nor time nor reason for me to consider the legal mental state of my assailant.

Sorry, I've apparently lost the bubble. Does anyone really disagree with the above?

 

[rampage841512]

That doesn't muddy the waters at all. We already had several pages of discussion on "complete safety". Complete means complete, you and everyone. It doesn't mean running like a coward and saving your own skin.

Okay, let's take it a step further. If safety is complete, for you and everyone, then the attacker, criminal, perp, whatever you want to call him/her, must be dead.

IF they remain alive they will always be a threat to someone.

Or, we can drop the whole 'complete safety' issue as it amounts to nothing more than nonsense anyway. Interresting for a thought experiment, sure, but nothing more.

We're discussing a moral issue but trying to do it in a complete abstract reality that does not exists. If the moral question has any real bearing it must be a question of this reality that we live in, not one created to ask an interesting question.

If one retreats, the attacker gets away. That freedom will only give them the chance to attack someone else. That chance, no matter how slim (they could be picked up five minutes after you retreat by police, or die of heart attack while making their own escape) precludes the possibility of complete safety.

The mere fact that anyone of us has made the choice to bear arms for defense is the most damning evidence that we've already dismissed the idea of complete safety.

 

[Evan Thomas]

A fellow who is pointing a gun at me can shoot me just as dead whether he understands the consequences of pulling the trigger or not, and if I want to survive, I have to fire before he does. Determination of legal mental deficiency is a process that occurs to determine his culpability if I don't fire first, and it takes the court systems a long time to determine it, and experts argue about it all the time.

If I or those under my protection are in imminent danger (and that is the only time I can fire) there is neither means nor time nor reason for me to consider the legal mental state of my assailant.

Sorry, I've apparently lost the bubble. Does anyone really disagree with the above?

Don't think so. Even I agree with it.

The mere fact that anyone of us has made the choice to bear arms for defense is the most damning evidence that we've already dismissed the idea of complete safety.

An interesting choice of words (my emphasis)... that aside, I don't agree with what I take to be your meaning. "Complete safety," in this case, refers to yours, and perhaps to that of anyone else in that immediate time and place. It doesn't refer to what might happen five minutes or five days from now. One is not entitled, legally or morally, to shoot people based on what one thinks they might do in the future: they've gotta be an immediate threat, and once they cease to be one, you don't get to shoot them (or shoot them again, as in the case of the pharmacist in OK).

And in any case, even although one can argue whether or not "complete safety" ever exists in the real world, it is a useful way of thinking about the moral issue.

 

[Microgunner]

If there's one thing I've learned from this threat. I'm damn sure not taking up the pharmacy trade in Oklahoma.

 

[OldMarksman]

IF they remain alive they will always be a threat to someone.

That consideration will always be completely irrelevant to any case involving a defense of justifiability for the use of deadly force.

Or, we can drop the whole 'complete safety' issue as it amounts to nothing more than nonsense anyway. Interresting for a thought experiment, sure, but nothing more.

The question of whether one can retreat in complete safety has been a central legal issue for centuries, and has been the subject of many charging decisions, trial court cases, and judicial appeals, whether or not one person or another might consider it nonsense.

If one retreats, the attacker gets away.

For the time being, anyway.

Again, that consideration is completely irrelevant to any case involving a defense of justifiability for the use of deadly force.

That freedom will only give them the chance to attack someone else.

That "chance" does not constitute imminent danger to yourself or to a third person at the time of the encounter, and nowhere in the country does that "chance" lawfully justify the use of deadly force by a citizen, and at no time in our history has it.

If you haven't read this now is a good time to do so:

http://www.useofforce.us/

Some relevant excerpts:

Your attacker must have the ability ... to cause you harm....while your attacker may very well have the ability to cause you harm, it means nothing unless he also has the opportunity to do so—right here and right now..... the jeopardy requirement, sometimes called “imminent jeopardy” ...requires that, in your specific situation, a “reasonable and prudent” person would have believed himself to be in immediate danger.... jeopardy is what distinguishes between a potentially dangerous situation and one that is actually dangerous....the jeopardy must be immediate. A general threat...in the distant future is meaningless, but “I’m gonna kill you right now!” is meaningful.

"You" in this context includes your family if they are with you at the time of the encounter, and perhaps third persons, depending on the situation and the jurisdiction.

You cannot use deadly force on the basis of what someone may do later, unless you want your street address and zip code replaced by a prisoner number.

 

[w_houle]

And how does that apply to the situation of mental illness I posited? Are the mentally ill morally unfit?

WildtoughonehuhAlaska TM

This is beyond the scope of a reaction to a threat. It doesn't matter if they are mentally ill, high, suffering from brain damage/ tumor/ whatever.
If someone poses a deadly threat, then they need to be dealt with apropriately.

 

[Microgunner]

"You" in this context includes your family

Here in Florida, deadly force is permitted in the defense of anyone likely to suffer grievous bodily injury. And Florida is a "Stand Your Ground" state. We're not required to retreat in any circumstance in any location. God bless the retirees who instrumented these pro-defense laws.

 

[Wildalaska]

This is beyond the scope of a reaction to a threat. It doesn't matter if they are mentally ill, high, suffering from brain damage/ tumor/ whatever.
If someone poses a deadly threat, then they need to be dealt with apropriately.

Thats not the issue. You are confusing apples and oranges.

Not one person in this thread has ever denied that someone who poses an imminent deadly threat should not be dealt with in accord with law.

The issue here, I reckon, in one sense, is what constitutes imminent...for some folks it is the attack qua attack that makes it imminent in ALL circumstances. For others, such as myself, an attack is only iminent if I cant get away in complete safety.

And I will, to follow up on Vanyas point, allege that it is in fact a moral issue due to the fact that one will not know until too late who one is killing, unless one takes every possible step NOT to kill, and by doing so, one may kill unecessarily, which is immoral or unethical.

In response to that point, the if and when scenarios posted, while interesting, skirt the moral/ethical issue. Other posts, even by those who posit no duty to retreat on moral and ethical grounds, take a reasoned view of the issues and conclude that there is no duty, even when one can retreat, and point to a line of Western philosophy and thought that supports their view.

And thats fine, although I would be interested in the reactions of folks to my Mental illness question (and thats directed to Al, Glenn and Pax )

Or to put it broadly, is it not the duty of any man not to kill, except under the most extreme circumstances, and if you can retreat in COMPLETE safety, do those circumstances exist?

WildthisthreadisaninternetmilestonebroughttoyoubythefiringlineAlaska ™

 

[w_houle]

Thats not the issue. You are confusing apples and oranges.

Could very well be.

The issue here, I reckon, in one sense, is what constitutes imminent

Yes, but could you define the word "is"?

for some folks it is the attack qua attack that makes it imminent in ALL circumstances. For others, such as myself, an attack is only iminent if I cant get away in complete safety.

I cannot tell you what it is, but I'll know it when I see it.

 

[DougO83]

allege that it is in fact a moral issue due to the fact that one will not know until too late who one is killing, unless one takes every possible step NOT to kill, and by doing so, one may kill unecessarily, which is immoral or unethical.

Wild, everything is a moral issue. Morality is highly subjective. I have a different moral standard than everyone else on this board and most everyone I meet. People of different religions have different moral standards. Same goes for different socioeconomic backgrounds.

While I do not agree with the "kill 'em all, let God sort 'em out" mentality, I do not feel any obligation to spend a great deal of time evaluating a threat within my own home. I feel that this train of thought can be quite dangerous. I could sit here and type up a number of scenarios where taking time to identify a threat could lead to my demise as well as instances that show where the same action saves a life. There will never be a concrete answer for this. It is something that must be determined on a case by case basis.

 

[OldMarksman]

I do not feel any obligation to spend a great deal of time evaluating a threat within my own home. I feel that this train of thought can be quite dangerous. I could sit here and type up a number of scenarios where taking time to identify a threat could lead to my demise as well as instances that show where the same action saves a life. There will never be a concrete answer for this. It is something that must be determined on a case by case basis.

We probably agree, Doug, but just to make sure....

In my opinion, it is essential to identify a threat as not being a neighbor or friend, for example, before using deadly force. Evaluating is a different story.

Your thoughts?

 

[DougO83]

OM,

I was not making any distinction and was actually using the terms interchangeably, but I would tend to agree with you.

 

[BikerRN]

I don't know where you have heard a gun called "the tool of last resort" (sounds like something one might read in a gun magazine), but I've always heard the gun referred to as "the great equalizer".

If you've never heard a gun called a "tool of last resort" you must not be very well educated on the subject matter.

Yes, I've heard the term "the great equalizer". The difference between you and me is that I have used a gun in self defense, or in the performance of legal duties, and have read and heard both terms.

Biker

 

[AZAK]

WA

And I will, to follow up on Vanyas point, allege that it is in fact a moral issue due to the fact that one will not know until too late who one is killing, unless one takes every possible step NOT to kill, and by doing so, one may kill unecessarily, which is immoral or unethical.

(Emphasis by AZAK)

By making this a moral issue, you continue to impose your personal definitions of morality upon others. And it is indeed a difficult task to change an opposing viewpoint in a debate; usually it is for the "undecided" that the debaters are arguing for.

I again (post#193) will quote:
"For me there is only one true morality; but it might not fit you, as you do not manufacture aerial battleships. There is only one true morality for every man; but every man has not the same true morality."
Undershaft from George Bernard Shaw's Major Barbara

 

[Edward429451]

It's an inane question to start with. conforming to the rules of right conduct is what morals are. I do not make the rules, others before me have.

You're asking us to judge the rules of others as it pertains to our personal conduct...something you have vociferously been against since the beginning.

opinion and situation will differ so much in variable that there is no way one could attempt to answer this question with any degree of accuracy. What is acceptable in one situation would not be acceptable in another situation.

 

[Glenn E. Meyer]

The mental status of the intruder is irrelevant to your actions if you determine that the intruder is up to no good in the metacontext.

If you want to try to determine their mental status and limit your self-defense choices and put yourself at more risk - go ahead. You can't do it in real time.

Since you can retreat in full safety for the OP game, then it makes no difference for the retreat option. If you decide to confront - well, get out your DSM-IVR and diagnosis a stranger.

If the intruder is your paranoid uncle with an ax who thinks you are a tool of the UN and is here to chop your chitlins and you want to confront him go ahead.

If you want to discuss diminished capacity and the legal ramifications, that's not a tactics issue but a civil rights issue and you should studied up before opining - it is a legal, neurological and psychological issue.

 

[Wildalaska]

The mental status of the intruder is irrelevant to your actions if you determine that the intruder is up to no good in the metacontext.

Yet if the metacontext is "entry-->choose death-->kill" does it still lose it's relevancy?

If you want to discuss diminished capacity and the legal ramifications, that's not a tactics issue but a civil rights issue and you should studied up before opining - it is a legal, neurological and psychological issue.

Except as it goes to folks that post automatic evil by intruders.

By making this a moral issue, you continue to impose your personal definitions of morality upon others. And it is indeed a difficult task to change an opposing viewpoint in a debate; usually it is for the "undecided" that the debaters are arguing for.

Does it change if I make it an ethical issue? Is not the death of another human being a moral or ethical issue?

Consider:
I think killing is wrong under all circumstances.
I think killing is justifiable under certain circumstances.
I think killing is the answer to all lifes problems.

Which one is immoral or unethical?

WildistheranyonewhothinksthethirdisocorrectAlaska TM