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Retreat or Stand Your Ground  by Lisa J. Steele

Retreat and “Stand your Ground” have been much in the news of late. There are numerous assertions about both the Florida statute2 and about the common law retreat rule. It is likely a good time for review of what Massachusetts and Connecticut law require.  Both states adhere to English common law concepts – you must retreat, if you can do so safely, when in a public place. You need not retreat when inside your own home, if you are facing someone unlawfully present therein.

Basic Concepts

“The law is well settled that, while a man may kill another in self-defense, he may not do so if he has other probable means of escape. When his back is to the wall, and the question is whether he shall die or his assailant, he may slay his assailant to preserve his own life; but, if he has probable means of escape without doing so, he must resort to such means before he is justified in killing his adversary. Human life is too sacred to be taken unnecessarily.”
Com. v. Ware, 37 Pa. 465, 479, 20 A. 806 (1890)

The fundamental concept of self-defense is necessity – an innocent defender is allowed to use force against an aggressor to protect his or her own life or health. Generally, the defender can also use force, including deadly force, to protect innocent third parties who cannot retreat, even where the defender could just walk away.

Where you are is Important

Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt. The law has grown, and even if historical mistakes have contributed to its growth it has tended in the direction of rules consistent with human nature. Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not succeeded the bounds of lawful self defence. That has been the decision of this Court. Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore in this Court, at least, 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 or to disable his assailant rather than to kill him
Brown v. United States, 256 U.S. 335 (1921) (internal citations omitted)

States differ about when retreat is required. Most do not require retreat if the defender is in his or her own home defending against an intruder bent on causing death or serious bodily harm. Some do not require retreat at all, so long as the defender is somewhere he or she is lawfully allowed to be.

 Both Massachusetts and Connecticut distinguish between one’s home (and in Connecticut one’s workplace), where one is not required to retreat, and being in public, where one must retreat if one can do so safely.

Retreat in the Home

 In Massachusetts, under General Laws ch. 278, § 83 you are not required to retreat from someone who is unlawfully in your dwelling if you believe they intend to inflict death or great bodily harm on you. There are two subtle ideas here – (1) the aggressor needs to be someone there unlawfully (an intruder), not a co-resident or guest and (2) it needs to be a dwelling. This normally means the interior of a residence – not the porch, deck, yard, attached garage, or shared spaces in an apartment building or duplex.

 Similarly, Connecticut General Statutes § 53a-19(b)4 does not require one to retreat in his or her home or place of work.

 Again, one has to be within one’s own dwelling or fixed workplace5 defending against an intruder6.

Retreat in Public

 In Massachusetts and Connecticut, you must retreat before using deadly force, if you can do so in or with “complete safety”7See e.g. Com. v. Peloquin, 437 Mass. 204, 212 (2002)8; Gen. Stat. § 53a-19(b). This gets to the heart of the problem – what does complete safety mean?

 On its face, this sounds reasonable. If you can safely escape from the situation without using deadly force, and then call 911 and let the police arrest the aggressor, shouldn’t you do so?

 The problem is that what looks like complete safety to the Monday-morning quarterback, be it a police investigator, prosecutor, reporter, or fact-finder, may have been invisible or perilous to the defender facing an aggressor perhaps at close range, or in the dark, or in an unfamiliar place, or just in the midst of an imminent attack. The Monday-morning quarterback can look at the situation in hindsight, with time and with more information that the defender had.

 Stress and Weapon Focus

 One of the findings from the eyewitness identification research is that people under high levels of stress do not perceive things (see and hear) as well as people who are alert, but calm. People under stress tend to get tunnel vision – they focus on the threat, without seeing or hearing things around them. When a weapon is present, people tend to focus on it, to the exclusion of everything else.

 By its nature, if the defender honestly believes he or she is in imminent danger of death or serious bodily harm, it is a high-stress situation. If the aggressor has displayed a weapon, or the defender is watching their hands looking for a weapon, their attention is focused there. The defender may not be aware of escape routes that seem obvious to a calm fact-finder looking at a crime scene sketch or pictures of the crime scene.

Reaction Time

 The next problem is reaction time. It takes time to observe an aggressor’s actions, realize what’s happening, decide, what to do, and act. Reaction time is often measured in tenths of seconds, but in a genuine self-defense situation, tenths of seconds can matter a lot. You can see reaction time in action every time you are stopped behind a group of cars a traffic light waiting for the drivers ahead of you to observe the light change from red to green and act by starting to move.

 The famous Tueller drill9, often used in self-defense classes, shows that a moderately healthy adult can cross a twenty-one foot gap in time to tackle, punch, or stab, a defender who is expecting this very action before the defender can draw and fire a ready handgun. In the real world, the defender does not know what to expect when someone who has been behaving aggressive starts to move. If the self-defense situation has arisen when the parties are already close to each other, it may be too late for the defender to start looking for ways out.

 Worse, the Tempe studies10 show that an aggressor can, in some situations, outdraw a trained police officer who is watching him or her for trouble. Taking one’s eyes off an aggressor who may be armed with firearm to look for ways to safely walk away can be very dangerous.

 Related problems can come up if there are multiple aggressors, or if the defender would need to flee into a comparatively unlit area, or away from a place where help could potentially arrive into an unknown place. The defendant in Commonwealth v. Pring-Wilson, 448 Mass. 718 (2007) was able to prevail against a Commonwealth claim that he was not entitled to the defense by presenting, among other things, evidence of the suddenness of the confrontation, the number of foes facing the defendant, the defendant’s belief that he could not escape, and the risk of a fatal injury even in a fist-fight, which were sufficient in the Court’s eyes to let the jury decide the self-defense claim.

 What Happens when the Judge Thinks you Didn’t Try to Retreat

 In order to obtain a self-defense instruction in Massachusetts, there must be “some evidence that the defendant availed himself of all means, proper and reasonable in the circumstances, of retreating from the conflict before resorting to the use of deadly force.” Commonwealth v. Benoit, 452 Mass. 212, 227-28 (2008)11.  In upholding the denial of the self-defense instruction, the Benoit Court said that: 

 

The defendant did not testify; thus we examine his statements to the police (which were in evidence) and any other evidence relevant to the feasibility of escape. In the defendant's statement to the police, he said that, as he was about ten feet from the victim on the porch, the victim yelled, "I'm going to stab you niggers," and that the victim jumped or "skipped" off the porch and "came at" the defendant and the defendant's friend, Brandon Johnson. The defendant "figured that [the victim] had a knife, too, because he was going to stab us." At that point, the defendant and Johnson talked about what to do, and Johnson gave the defendant a knife. Viewing this evidence in the light most favorable to the defendant, after the victim's threat to stab him, the defendant had the opportunity to go over to Johnson, get the knife, and then engage in combat with the victim. Whether Johnson was ten feet away from the victim, or somewhat closer, all these events transpired outdoors in front of the victim's house and apparently in the vicinity of a public street. See Commonwealth v. Berry, 431 Mass. 326, 335, 727 N.E.2d 517 (2000). Nothing indicated that his escape was impeded in any way. Because there was no evidence of an attempt to avoid further physical combat or of the defendant's inability to retreat, no self-defense instruction was required. See Commonwealth v. Pike, [428 Mass. 393, 399, 701 N.E.2d 951 (1998)]

 

Your attorney often does not know whether the judge is going to give a self-defense charge until the case is in progress. If the judge decides “no”, it is not clear if he or she can argue self-defense anyway. Com. v. Saletino, 449 Mass. 657 (2007) says that if the trial court finds that the prerequisites for a missing witness instruction are not met, defense counsel can’t argue the inference that one gets from that instruction in closing. The Court notes, however, that in situations where a trial court declines to give a Bowden instruction, defense counsel can argue about the gaps in the police investigation because counsel is not suggesting what the evidence would have been had it been done right. Using that logic, defense counsel could try to argue the concepts behind self-defense to create reasonable doubt, but it is going to be an uphill fight.

 

Worse, if you have built your case around self-defense, you have likely admitted (or not challenged evidence) that (1) you were there, (2) you were the one who used force against the “victim”, and (3) you intended to do it. Without a self-defense charge, you are likely to be convicted of assault or even  homicide. 

 When do you have to Retreat?

 You should start looking for ways to leave as soon as you realize that there is a potential for violence. Self-defense is not available if you are the first-aggressor or a mutual combatant. If you start the fight or agree to the fight, perhaps by chasing after an aggressor who has fled, then a fact-finder may conclude that you forfeited your right to self-defense.

 No one wants to have to use deadly force in self-defense. The instant that you display or use a weapon, your life will change. If there is a way to retreat without risk to yourself or other innocent persons in immediate danger, then it is prudent to take it, regardless of the intricacies of the law.

 

Common Concerns 

How far do I have to go?

 It isn’t clear. In State v. Saunders, 267 Conn. 363 (2004), the defender got into a fist-fight in a bar, and displayed his lawfully carried revolver to end the fight. The bartender and patrons called the police to report a man with a gun. The defender withdrew into the kitchen of the bar to clean up the blood streaming from his nose. While there, the aggressor pursued him into the kitchen and charged at him. The defender shot him. The Connecticut Supreme Court, analyzing the retreat aspect of the case, opined that

 “[a waitress] testified that the defendant was standing near a door when the victim entered the kitchen. Indeed, the defendant acknowledged in his written statement that he "was going to run out the door," but decided not to out of concern for [his girlfriend, who was still in the public area of the bar]. The jury was not obligated, however, to accept the defendant's justification for deciding not to leave in order to avoid any further conflict with the victim because, among other reasons, there was nothing to suggest to the defendant that [his girlfriend] was in any danger. Therefore, the jury reasonably could have concluded that, because the defendant knew that he could have exited the restaurant in complete safety.”

 The door in question was an unmarked exit from the kitchen. When the police arrived, the interior door was open, but a screen door was closed. It was not clear whether the interior door had been open at the time of the confrontation on that late January evening or whether it had been opened afterwards for the police and ambulance personnel to use.

 Was it reasonable for the Court to say that the defender needed to retreat outside the building, to stand in a dark parking lot to wait for police responding to a man with a gun call? The Saunders Court seemed to think so. Here, the defender did not testify. It might have helped had he been able to explain in his statement to police, or on the stand, whether he realized the unmarked door was an exit and why he thought it better to retreat into a private, lit area, rather than outside into the dark parking lot.

 

Further Reading

Massachusetts

 Mass. Gen. Laws ch. 278 § 8 

 Connecticut:

 General Statutes § 53a-19

 Office of Legislative Research on Stand your Ground and Castle Law

 Reaction Time:

 Tobin & Fackler, Officer Reaction – Response Times in Firing a Handgun, 3:1 Wound Ballistic Rev. (1997)

 Tobin & Fackler, Officer Decision Time in Firing a Handgun, 5:1 Wound Ballistics Rev. (2001)

 Tobin & Fackler, Officer Reaction-Response Time Delay at the End of a Shot Series, 5:1 Wound Ballistics Rev. (2001)

 http://www.forcescience.org/articles/shotinback.pdf

 


 Notes:

1Copyright 2012, Lisa J. Steele, Bolton, MA. This article may be reprinted for training purposes, so long as this copyright notice and disclaimer are included.

 

This article is not legal advice and does not create an attorney-client relationship between the author and any reader. If you want specific legal advice, you need to hire an attorney.

2 Fla. Stat. § 776.012. Use of force in defense of person.
2 Fla. Stat. § 776.012. Use of force in defense of person.

 3General Laws ch. 278, § 8

 In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.

 4 Sec. 53a-19. Use of physical force in defense of person.

 (a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.

 (b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.

 (c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.

 5 See e.g. State v. Lutters, 270 Conn. 198 (2004) (taxi is not place of business for purposes of carrying firearm without permit).

 6 See State v. Shaw, 185 Conn. 372, 382-83 (1981) (co-dweller’s duty to retreat if he can do so in complete safety).

 7  Note that a series of recent cases have used the phrase when retreat was “not possible”. See e.g. Com. v. Diaz, 453 Mass. 266, 280 (2009). The Court has not overturned Peloquin and its progeny, so it is unclear whether the Court is trying to change the retreat requirement. See also Com. v. Sosa, 79 Mass. App. Ct. 106 (2011) (judge did not err in not giving requested instruction on retreat, judge's use of the more general language of "all proper means to avoid physical combat" properly embodies that concept)

 8 See also Commonwealth v. Little, 431 Mass. 782, 786 n. 3 (2000) (whether defendant could have retreated was a jury question); Commonwealth v. Pike, 428 Mass. 393, 398 (1998) ("an individual need not place himself in danger nor use every means of escape short of death before resorting to self-defense"); Commonwealth v. Barber, 394 Mass. 1013 (1985) (defendant could have believed that flight was not an option where he reasonably believed the victim was carrying a dangerous weapon and thus been relieved of duty to retreat); Commonwealth v. Gagne, 367 Mass. 519, 524 (1975) ("a person attacked with deadly force must retreat whenever it is possible to do so in safety").

 9 http://www.theppsc.org/Staff_Views/Tueller/How.Close.htm (original Tueller drill article which created the police 21’ rule)

 10 http://www.forcescience.org/articles/tempestudy.pdf

 http://www.forcescience.org/articles/tempestudy2.pdf

 11 See also Commonwealth v. Diaz, 453 Mass. 266, 280 (2009) (“was no evidence that the defendant availed himself of any, let alone all, means of retreat before shooting the victim. The defendant had access to an automobile; indeed, he entered the car to retrieve the weapon, but did not attempt to leave the scene. Instead, he walked to the car, obtained the gun, shot the victim, and then shot him twice more as he lay on the ground. In addition, there is no evidence that the defendant reasonably believed he was in danger of death or serious bodily harm.”); Commonwealth v. Espada, 450 Mass. 687, 693 (2008) (“The defendant claims that he "had no opportunity to retreat since he was in a small alley next to the vehicle." We disagree. The location of the spent casings in front of Bass's apartment building and on the sidewalk near the driveway suggest that the defendant was near the sidewalk and thus had some avenues by which he could have retreated.” Also, evidence that defendant initiated confrontation and created the situation precluding his retreat).