The Duties to Retreat and to Comply with Negative Demands

A rough draft has been completed. The right to defy criminal demandsThis article was very interesting and so I thought that I would serialize it. Since there is still time to make changes, I would love to get your feedback and suggestions. Also, you may also post previous posts as well as future ones.

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As a restriction to the use of lethal force for self-defense, thirteen states and D.C. recognize an so-called duty to retreat.[1]Model Penal Code captures this standard well. “The actor is able to avoid using deadly force while defending against death or serious bodily injury.” The defenders won’t be able to return to the area they have retreated from, at most for a short time.

Seven states also recognize the duty to comply with negative demands, by denying the right to use deadly force in self-defense if “the actor knows that he can avoid the necessity of using such force with complete safety … by complying with a demand that he abstain from any action which he has no duty to take.”[2] And one state appears to recognize a narrow duty to comply with both positive and negative demands, but only if they are minor: North Dakota denies the right to use deadly force in self-defense if “it can be avoided, with safety to the actor and others, by … conduct involving minimal interference with the freedom of the individual menaced.”

The law requires individuals to obey criminal demands. Craig says to Danielle “leave the bar or I will kill you.” Craig doesn’t own the bar so Danielle isn’t just asking her to stop illegal trespassing. Craig can demand Danielle comply, but Danielle will be denied the right to use lethal force in order to defend herself from Craig’s attack.[3]”[t]If there’s no request but the actor knows he is likely to be attacked, then it results in exactly the same thing. (Not all duty to retreat scenarios involve such demands—sometimes the attacker actually wants the defender to stay, for instance when the attacker wants to beat up the defender. They do often involve a “retreat-or-other” request, which then triggers the duty to retreat, provided that state law allows it.

Craig might tell Danielle that he won’t let her dance with his new love in front of him at the bar. It is “a requirement that [s]He will abstain all action that could lead to his death [s]”He has no obligation to do so.” Refusing to comply[]With [that]”Demand,” Danielle loses the right to use lethal force against Craig. The statutory definition of the obligation to comply can in principle be extended to very serious demands: “Don’t have sex or I’ll kill your ex-lover”; “Don’t open your own business competing with mine, or you’ll get killed”; and “Don’t start an abortion clinic or you’ll die.”

This is because Danielle believes Craig should be arrested and tried for prosecution. However, if he claims he did not make the threat it is possible that a prosecutor will decline to prosecute him. He may be refused arrest by the police, or the prosecution may not pursue him (maybe because it is difficult to prove that the threat was made beyond reasonable doubt using Danielle’s words), or even the jury might acquit him for insufficient proof.

Danielle could lose her right to lethal self defense if she dated the ex-lover. Her report on Craig’s threats to police against Danielle could actually be used against her. It would prove that Craig did indeed make a request with which Danielle refused to comply. The self-defense method is useful for those who have had to give up on trying to get the help of the law. Self-help cannot be provided if the duties of retreating and compliance are not met.

Some people view the obligations to comply and retreat as special cases of “necessity,” which is a requirement under self-defense law.

  1. For lawful use of deadly force in self defense, the defender must be able to justify the use.
  2. The argument is that only deadly self defense is possible if other options are available.
  3. And if there is an alternative—averting the danger by safely retreating—that means deadly force isn’t necessary.

This definition of “necessity”, however, is not complete. The law recognizes the need to consider other options, as they can unduly restrict your freedom.

Consider, for instance, if you are in a place that does not allow the use deadly force to deter robbery. This view is shared by half of American jurisdictions. According to the “can’t defend yourself with lethal force if necessary” view, if you are robbed and refuse to pay, he will attack you violently, threatening your life or causing serious injury. You could have avoided the danger by giving the money. However, deadly force was not necessary.

But even though the Model Penal Code requires compliance, this isn’t required. It clarifies that the obligation to comply does not include the duty of turning over property. This excludes property required by a claim of rights, such as repossession of mortgaged or borrowed property. Having to turn over even a modest sum is seen as such an intrusion on liberty—or perhaps on dignity—that you don’t lose your right to self-defense by refusing to take that alternative.

You can also ask someone to “beg for mercy” or to break your arm. There is no law that would prohibit you from using deadly force in the face of serious bodily harm.[4]It is clear from the Model Penal Code that while there are obligations to follow, they do not require you to. Stay away from action—or else lose your right to self-defense—you don’t have a duty to comply with demands to Take action. Although there’s an alternate (beggar) to avoid the danger, the Code, and the law of all States, would let you still use deadly force for your protection, but not condemn it as being unnecessary.

The Code’s drafters justified this exclusion of a duty to comply with positive demands by saying th­at such demands of “positive action” could be “infinite in variety,” and some of them may be “outrageous, a demand to which the answer is that one would risk death rather than comply.” Maybe a request for begging could be considered for certain people and others for more.

So the duty to retreat is more specific than a necessity requirement: It is a statement that, if threatened with serious violence, you must surrender your right to be in a particular place—but not your right not to turn over your money, or your right not to beg—or lose your right to deadly self-defense. Similar applies to the obligation to obey negative demands.

This may be part of the reason why, despite the Model Penal Code’s endorsement, the duty to retreat is now recognized in only about a quarter of the states—and why the duty to comply has been adopted by even fewer states. Dean Margaret Raymond articulated this well in an article published in 2009.

[The Model Penal Code’s] approaches inappropriately undervalue that actor’s dignitary interest …[:] the actor’s interest in being permitted to move about freely and to pursue those activities fundamental to a free society, without being subjugated to the unlawful demands of another actor…. If a rule restricts the freedom of law-abiding citizens by making them submit to unlawful demands in order to keep the privilege of self defense, it is wrong. Such a rule … requires her to submit to the subjugation of an aggressive and unlawful actor. This allows bullies to demand that their victims comply with the rules. [express or implicit] demands.

Whatever the unknowable pragmatic cost and benefits, these “submi-” legal mandated duties are legally mandated.[ssion]”Subjugation to an aggressive and illegal actor” is not popular.

The obligation to comply with any negative demand, it seems, was passed on from the First Restatement of Torts. This restriction was placed on self-defense defenses to tort claims for battery. According to my knowledge, it was the first one to create this rule. There are no cases citing its existence. While the second Restatement supported the rule, the third Restatement deliberately removed it from its Third Edition.

Practical limitations on the duty of compliance may exist due to prosecutorial discretion. There have been only two appeal cases in which the duty was invoked. Both are unusual.

[1.]James Savage was a fellow member of the bluegrass band, as were C. Sumner Morrill. After an affair, Savage ended it.

Savage and his spouse went to [Morrill’s farm]. Savage had a loaded revolver and a tape recorder, as well as copies of Morrill’s letters and tapes.

As a result of an earlier confrontation, Savage was aware that Morrill did not wish to discuss Savage’s relationship with Morrill’s wife…. Savage placed the tape recording device on the table. He said that he wanted Morrill hearing something. Morrill stated that he didn’t want to hear the tape, but he was aware of all details. This house belonged to him and he needed to convince his “persuader”. Morrill was sitting on the floor, and Savage shot four times at him. The first two were in his chest. A third hit his side. And a fourth struck his back. Savage said that Morrill had threatened to kill Savage in the past and that Morrill was thinking of a gun when he spoke about “persuader”.

The court upheld the conviction, and in particular endorsed a jury instruction “that Savage was not justified in using deadly force if he knew that he could with complete safety comply with a demand by the victim that he abstain from doing something that he was not obliged to do”—namely, the demand that Savage stop talking about the affair.

This case is based on two facts that make the duty to comply seem unusually strong. These may be why this case and so many others were argued. The first was that Savage had been in Morrill’s house doing something he said he wouldn’t do. Savage didn’t violate Morrill’s rights by asking for Savage to leave. However, in the home of a homeowner one’s right to resist their demands seems weaker.

Morrill could lawfully have asked Savage to leave and could have threatened with deadly violence as a support. Morrill demanded that Savage follow Morrill if he wanted to stay.

Savage also spoke second To Morrill accepted Morrill’s objections. People often have a lot of power under the law to obstruct others from speaking to them. This includes unwanted mail, unwanted telephone calls or any other form of unwanted contact. The ban on using fighting words might be considered a unique case of this principle. It would be absurd to suggest Morrill impliedly threatened Savage with shooting if Savage discussed the matter. However, it doesn’t diminish Savage’s desire to continue exercising his liberty in spite of Morrill’s threat.

[2.]Lauren Daly, Margaret Dover and their kids were together when they started raising them. However, there was conflict over custody arrangements after the breakup. Dover was shot by Daly at one child exchange. Dover claimed that Dover tried to drive her over with her vehicle and she shot her in self defense. According to reports, the parties agreed that exchanges would be held in Daly’s house (presumably in order to prevent any tense interaction between Dover and Daly). The judge ordered the jury.

[If the Commonwealth proves that Daly]It was clear that she would be able to avoid using deadly force. She obeyed to a demand she abstain form any action she did not have to. When she failed to comply, she left the house and came to the vicinity of the automobile for the transfer.[,] … the actions of [Daly]These are unjustifiable.

It seems like this error was made by the judge. The duty to retreat is only possible when the defendant has a reasonable belief the other person “is using or about the use of deadly physical force.” According to the same logic, compliance would not be possible. Thus, if Daly and Dover were (say) having a non-visibly-life-threatening argument, and Dover said “just go away,” Daly didn’t go away, and Dover tried to run Daly over with her car, Daly would be able to use deadly force She could safely withdraw at that point if she couldn’t.—it wouldn’t matter that she could have avoided the problem by leaving before the situation became deadly (or else we would have a standing duty to avoid anyone who we think may Threaten us to end a bad conversation. Likewise here: If at the point Dover was (supposedly) trying to run Daly over, Daly couldn’t safely avoid the situation by retreating or complying with a demand to abstain, she should have the right to use lethal force in self-defense—even if she could have avoided the problem by complying BeforeThe threat to her safety was obvious.

[1]The mid-Atlantic, New England, Wisconsin, Minnesota and Nebraska are the states.

[2]Connecticut, Delaware and Hawaii.

[3] The right to use deadly force in self-defense against threats of death or serious bodily harm is understood by American law as a right—often even a constitutional right—and not just as a benefit that the law is free to withdraw.

[4] I assume that even under North Dakota’s provision that “The use of deadly force is not justified if it can be avoided, with safety to the actor and others, by … conduct involving minimal interference with the freedom of the individual menaced,” such begging-on-demand would be seen as more than a minimal interference with freedom.