The Volokh Conspiracy - New York Times and Stand Your Ground Laws:

Yesterday's New York Times contained a very slanted article by Adam Liptak on states reforming their laws regarding self-defense. Below is a response to the article, written by my friend Don Kates:

Among the highly misleading things in this article is that the ordinary reader will probably never realize that the retreat rule has always been the minority rule in the U.S. So instead of a horrible earthshaking change taking place, all that is happening is that the legislatures of at most 15 states have adopted what was already the rule in most states.

(I say "at most 15 states" because it is quite possible that some of those states never had the retreat rule and only adopted the FL statute because they liked other aspects of it, not to make a substantive change in the law of homicide. Note also that buried away in a half sentence in the middle of the article is the disclosure that the retreat rule "has been eroding nationally through judicial decisions.")

Almost as misleading is the quotation in opposition to the law of comments by "Paul A. Logli, president of the National District Attorneys Association." (NDAA). Of course the NDAA opposes any law change that makes it harder to convict defendants -- whether the change is justified or not. For instance, the NDAA vehemently opposes the Miranda rule, the 4th Amendment exclusionary rule, and any law change that would make it harder to impose the death penalty. But the Times vehemently supports those things editorially. So you can be sure that any supposed neutral news article it carried about those subjects would be full of quotes from law professors who agree with the Times, not to mention the National Legal Aid and Defender Association, i.e., criminal lawyers and public defenders. Did you see anything like that in this article?

Also misleading, or should I say flatly false, are the fact situations the article presents as being murder under the retreat rule but not under the majority rule or the new Stand Your Ground laws.

1. The garbage dispute -- no difference!

The shooting victim claims he knocked on the shooter's door because the shooter had reported his illegal conduct to the authorities. An angry confrontation ensued and the shooter closed the door. Apparently the victim continued pounding on the door so the shooter opened it and shot him.

If true, the shooting was equally illegal under the retreat rule, the majority rule or Stand Your Ground laws. Under all of them if someone breaks down your door you may shoot. Under none of them can you open the door and shoot someone who angrily pounds on your beyond which you a safe.

Note that there is also complete agreement under each rule if we assume the shooter's story is correct. If you open the door to talk to someone who then tries to force his way in you may shoot unless it is clear that he cannot get in (e.g., a 110 pound woman tries to force her way into the home of a man who is 6' tall and weighs 185 lbs.)

2. The prostitute

Her story is that her elderly client pulled a gun declaring that he was going to kill her and then himself. She wrests the gun away from him and then shoots him rather than fleeing. Even under the retreat rule one is only required to retreat if ths is clearly possible. Under these circumstances she was privileged to shoot rather than run away taking the chance that this homicidally desperate man can jump on her and get the gun.

See also People v. Riddle, a case from a retreat rule state [47 Mich. 116, 649 N.W.2d 30, 2002]:

[this case upholds the retreat rule in theory but severely limits it. Facts showed that defendant was not attacked at all and court upholds conviction.]

"First, a person is never required to retreat from a sudden, fierce, and violent attack; nor is he required to retreat from an attacker who he reasonably believes is about to use a deadly weapon. In these circumstances, as long as he honestly and reasonably believes that it is necessary to exercise deadly force in self-defense, the actor's failure to retreat is never a consideration when determining if the necessity element of self-defense is satisfied; instead, he may stand his ground and meet force with force. That is, where it is uncontested that the defendant was the victim of a sudden and violent attack, the Court should not instruct the jury to consider whether retreat was safe, reasonable, or even possible, because, in such circumstances, the law does not require that the defendant engage in such considerations See Beard v. United States 158 U.S. 550, 564, 15 S.Ct. 962, 39 L.Ed. 1086 (1895), stating that the victim of a sudden and violent attack is "not obliged to retreat, nor to consider whether he could safely retreat...."

"Second, Michigan law imposes an affirmative obligation to retreat upon a nonaggressor only in one narrow set of circumstances: A participant in voluntary mutual combat will not be justified in taking the life of another until he is deemed to have retreated as far as safely possible. One who is involved in a physical altercation in which he is a willing participant--referred to at common law as a "sudden affray" or a "chance medley"--is required to take advantage of any reasonable and safe avenue of retreat before using deadly force against his adversary, should the altercation escalate into a deadly encounter.

"Third, regardless of the circumstances, one who is attacked in his dwelling is never required to retreat where it is otherwise necessary to exercise deadly force in self-defense. When a person is in his "castle," there is no safer place to retreat; the obligation to retreat that would otherwise exist in such circumstances is no longer present, and the homicide will be deemed justifiable. This is true even where one is a voluntary participant in mutual combat.

"The rules of self-defense as provided in Doe state the obvious: If it is possible to safely avoid an attack then it is not necessary, and therefore not permissible, to exercise deadly force against the attacker. However, one is never obliged to retreat from a sudden, fierce, and violent attack, because under such circumstances a reasonable person would, as a rule, find it necessary to use force against force without retreating. The violent and sudden attack removes the ability to retreat. Where immediate danger to life or great bodily harm is threatened upon the innocent victim, he "cannot be required when hard pressed, to draw very fine distinctions concerning the extent of the injury that an infuriated and reckless assailant may probably inflict." Brownell v. People, 38 Mich. 732, 738 (1878). As Justice Holmes reasoned in Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 65 L.Ed. 961 (1921), "detached reflection cannot be demanded in the face of an uplifted knife." There, Justice Holmes concluded that "it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety ..." Id., citing Rowe v. United States, 164 U.S. 546, 558, 17 S.Ct. 172, 41 L.Ed. 547 (1896).

(Footnote markers deleted. A Kopel article on the Brown, Beard, and Rowe cases is available here.)

3. The cabbie

His story is that after he got his passenger out of the car, the passenger pulled a knife. Obviously the cabbie was not required to partially turn away and try to get in his cab exposing his side and back to a stab wound. Nor need he have done that even if the passenger had not had a knife. Retreat is required only if it can be accomplished in complete safety.

	[David Kopel, August 7, 2006 at 1:09pm] Trackbacks New York Times and Stand Your Ground Laws: Yesterday's New York Times contained a very slanted article by Adam Liptak on states reforming their laws regarding self-defense. Below is a response to the article, written by my friend Don Kates: Among the highly misleading things in this article is that the ordinary reader will probably never realize that the retreat rule has always been the minority rule in the U.S. So instead of a horrible earthshaking change taking place, all that is happening is that the legislatures of at most 15 states have adopted what was already the rule in most states. (I say "at most 15 states" because it is quite possible that some of those states never had the retreat rule and only adopted the FL statute because they liked other aspects of it, not to make a substantive change in the law of homicide. Note also that buried away in a half sentence in the middle of the article is the disclosure that the retreat rule "has been eroding nationally through judicial decisions.") Almost as misleading is the quotation in opposition to the law of comments by "Paul A. Logli, president of the National District Attorneys Association." (NDAA). Of course the NDAA opposes any law change that makes it harder to convict defendants -- whether the change is justified or not. For instance, the NDAA vehemently opposes the Miranda rule, the 4th Amendment exclusionary rule, and any law change that would make it harder to impose the death penalty. But the Times vehemently supports those things editorially. So you can be sure that any supposed neutral news article it carried about those subjects would be full of quotes from law professors who agree with the Times, not to mention the National Legal Aid and Defender Association, i.e., criminal lawyers and public defenders. Did you see anything like that in this article? Also misleading, or should I say flatly false, are the fact situations the article presents as being murder under the retreat rule but not under the majority rule or the new Stand Your Ground laws. 1. The garbage dispute -- no difference! The shooting victim claims he knocked on the shooter's door because the shooter had reported his illegal conduct to the authorities. An angry confrontation ensued and the shooter closed the door. Apparently the victim continued pounding on the door so the shooter opened it and shot him. If true, the shooting was equally illegal under the retreat rule, the majority rule or Stand Your Ground laws. Under all of them if someone breaks down your door you may shoot. Under none of them can you open the door and shoot someone who angrily pounds on your beyond which you a safe. Note that there is also complete agreement under each rule if we assume the shooter's story is correct. If you open the door to talk to someone who then tries to force his way in you may shoot unless it is clear that he cannot get in (e.g., a 110 pound woman tries to force her way into the home of a man who is 6' tall and weighs 185 lbs.) 2. The prostitute Her story is that her elderly client pulled a gun declaring that he was going to kill her and then himself. She wrests the gun away from him and then shoots him rather than fleeing. Even under the retreat rule one is only required to retreat if ths is clearly possible. Under these circumstances she was privileged to shoot rather than run away taking the chance that this homicidally desperate man can jump on her and get the gun. See also People v. Riddle, a case from a retreat rule state [47 Mich. 116, 649 N.W.2d 30, 2002]: [this case upholds the retreat rule in theory but severely limits it. Facts showed that defendant was not attacked at all and court upholds conviction.] "First, a person is never required to retreat from a sudden, fierce, and violent attack; nor is he required to retreat from an attacker who he reasonably believes is about to use a deadly weapon. In these circumstances, as long as he honestly and reasonably believes that it is necessary to exercise deadly force in self-defense, the actor's failure to retreat is never a consideration when determining if the necessity element of self-defense is satisfied; instead, he may stand his ground and meet force with force. That is, where it is uncontested that the defendant was the victim of a sudden and violent attack, the Court should not instruct the jury to consider whether retreat was safe, reasonable, or even possible, because, in such circumstances, the law does not require that the defendant engage in such considerations See Beard v. United States 158 U.S. 550, 564, 15 S.Ct. 962, 39 L.Ed. 1086 (1895), stating that the victim of a sudden and violent attack is "not obliged to retreat, nor to consider whether he could safely retreat...." "Second, Michigan law imposes an affirmative obligation to retreat upon a nonaggressor only in one narrow set of circumstances: A participant in voluntary mutual combat will not be justified in taking the life of another until he is deemed to have retreated as far as safely possible. One who is involved in a physical altercation in which he is a willing participant--referred to at common law as a "sudden affray" or a "chance medley"--is required to take advantage of any reasonable and safe avenue of retreat before using deadly force against his adversary, should the altercation escalate into a deadly encounter. "Third, regardless of the circumstances, one who is attacked in his dwelling is never required to retreat where it is otherwise necessary to exercise deadly force in self-defense. When a person is in his "castle," there is no safer place to retreat; the obligation to retreat that would otherwise exist in such circumstances is no longer present, and the homicide will be deemed justifiable. This is true even where one is a voluntary participant in mutual combat. "The rules of self-defense as provided in Doe state the obvious: If it is possible to safely avoid an attack then it is not necessary, and therefore not permissible, to exercise deadly force against the attacker. However, one is never obliged to retreat from a sudden, fierce, and violent attack, because under such circumstances a reasonable person would, as a rule, find it necessary to use force against force without retreating. The violent and sudden attack removes the ability to retreat. Where immediate danger to life or great bodily harm is threatened upon the innocent victim, he "cannot be required when hard pressed, to draw very fine distinctions concerning the extent of the injury that an infuriated and reckless assailant may probably inflict." Brownell v. People, 38 Mich. 732, 738 (1878). As Justice Holmes reasoned in Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 65 L.Ed. 961 (1921), "detached reflection cannot be demanded in the face of an uplifted knife." There, Justice Holmes concluded that "it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety ..." Id., citing Rowe v. United States, 164 U.S. 546, 558, 17 S.Ct. 172, 41 L.Ed. 547 (1896). (Footnote markers deleted. A Kopel article on the Brown, Beard, and Rowe cases is available here.) 3. The cabbie His story is that after he got his passenger out of the car, the passenger pulled a knife. Obviously the cabbie was not required to partially turn away and try to get in his cab exposing his side and back to a stab wound. Nor need he have done that even if the passenger had not had a knife. Retreat is required only if it can be accomplished in complete safety.