I wrote about it a few months ago, but several states have stood their ground since then – Ohio, Arkansas, and now North Dakota – so I thought I’d do it again.
[A.] The “obligation to withdraw” is a kind of misnomer (albeit a very common one); It is actually not a legally binding obligation (the way a parent is obliged to feed a minor child, or a driver has a duty to exercise reasonable care while driving). Rather, it is a provision that If, under certain circumstances, you do not withdraw from a confrontation, you are effectively losing your right to use lethal force in self-defense.
To see how it works, let’s set aside situations where you can first must not use lethal force for self-defense, regardless of this whether you are in a state of your basic state:
- In most states, you generally cannot use lethal force for self-defense unless you reasonably believe that you are at risk of death, aggravated injury, or serious crime: rape, kidnapping, or in some states, robbery, burglary, or Arson.
- In particular, you can’t use deadly force just as retaliation when a threat is over.
- Also, you cannot use lethal force against a simple attack unless you reasonably believe that you are at risk of death or serious injury.
- You often can’t use lethal force to protect property, but it’s complicated.
- In general, you cannot use lethal force if you are involved in the commission of a crime (for example, if you rob someone and they fight back, you cannot “defend” yourself against them).
- In general, you cannot use lethal force if you attacked the victim or intentionally provoked the victim in order to get the victim to attack or threaten you.
Now let’s put aside situations in which you can use lethal force for self-defense regardless whether you are in a state of your basic state:
- You reasonably believe that you are at risk of death etc (see above) and you cannot withdraw with complete certainty. This would cover most of the situations where you are facing an attacker who has a weapon, for example, as there is generally no safe way to withdraw from a weapon.
- You reasonably believe that you are at risk of death, etc., and that you are in your home or (in some states) other property that you own, in your vehicle, or at work. At least the “home” aspect is often referred to as the lock doctrine, based on the theory that your home is your lock.
So what remains for the obligation to withdraw / stand-your-ground debate?
- You reasonably believe that you are at risk of death, etc.
- You are outside of your home (or similar location).
- You are not committing a crime and you are not the initial attacker and (in general) you are where the law allows you to.
- In withdrawal obligationsYou are not legally permitted to use lethal force to defend yourself if the jury concludes that you could safely have avoided the risk of death or aggravation (or other relevant crimes) if you were completely confident would have withdrawn.
- In stand-your-ground conditionsYou are legally permitted to use lethal force to defend yourself whether or not the jury concludes that you could safely have avoided the risk of death, etc. by withdrawing.
As I can best judge, the current rule is that 12 states are subject to withdrawal, with the states being fairly clustered geographically. The other 38 states are there for you:
▮ Get up (38 states plus PR, CNMI)
▮ Withdrawal obligation outside of your home (MA, MD, ME, MN, NJ, NY, RI)
▮ Obligation to withdraw outside of home or at work (CT, DE, HI, NE)
▮ Obligation to withdraw outside of home, in the vehicle or at work (WI, GU)
▮ Middle way approach (DC)
▮ No fixed rule (AS, VI)
Pennsylvania pledges to withdraw only when faced with an assailant who does not show or use a weapon “that can be easily or apparently lethal”. Since death or serious injury is rare (remember that without such a threat you generally cannot use lethal force), when such weapons are absent, or when physical restraint prevents safe retreat, I see the Pennsylvania Rule as more likely to be on the stand-your-ground side.
The rule in federal cases seems ambiguous, and it also applies to DC. For example, the DC wording is a “middle ground”. The law “does not impose any obligation to withdraw because it recognizes that the average person, faced with real or apparent danger of serious injury or death, is incapable of cautiously considering how best to save himself and whether to do so.” Case is. ” is sure to retire. “But” it allows the jury to examine whether if a defendant could safely have avoided another encounter by stepping back or walking away, he was actually or apparently in imminent danger of physical harm. “Ask what exactly that means .
Still, I think this reflects the general pattern:
- 3/4 of the states are stand-your-ground, and most of them held this view even before the recent flood of stand-your-ground statutes.
- There is, however, a significant minority, in fact a quarter of the states, who are in favor of an obligation to withdraw.
- Of course, nothing tells us what the correct rule should be.