Ohio Legislation has just passed a bill that would move Ohio from “duty to withdraw” to “state your position”. It is now before Governor DeWine for signature. But what does that mean?
[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 for 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 cannot generally use lethal force for self-defense unless you reasonably believe that you are at risk of death or aggravated injury or a serious crime: rape, kidnapping, or in some states, robbery, burglary, or arson.
- Specifically, you can’t just use deadly force as retaliation when a threat is over.
- Nor can you 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.
- You generally 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 faced with 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 theory, 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 a similar location).
- You are not committing a crime and you are not the original 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 aggravated injury (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 15 states, including Ohio, fall into the mandatory withdrawal category, with the states being pretty much clustered geographically. The other 35 states are there for you:
▮ Get up (35 states plus PR, CNMI)
▮ Withdrawal outside of your home (AR, MA, MD, ME, MN, NJ, NY, RI)
▮ Obligation to withdraw outside of your home or vehicle (OH)
▮ Obligation to withdraw outside of home or at work (CT, DE, HI, ND, 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 if you face an assailant who does not show or use a weapon “that can be easily or apparently lethal”. But since most threats of death or grievous bodily harm come from people who have such weapons or who physically hold you back in a way that prevents safe retreat, I view the Pennsylvania Rule as more staunch.
The rule in federal cases seems ambiguous, and it also applies to DC. For example, the DC wording is a “middle ground” that “imposes no obligation to withdraw as it recognizes that the average person, faced with a real or apparent risk of grievous bodily harm or death, is incapable of arguing himself in a cautious manner, such as it is best to save yourself and whether it is safe to withdraw, “but” allows the jury to examine whether a defendant, if he could safely have avoided further encounters by stepping back or leaving, was actually or apparently there was an impending danger of bodily harm . “Ask what exactly that means.
Still, I think this reflects the general pattern:
- Over 2/3 of the majority of states are stand-your-ground, and most of them held this view even before the recent flood of stand-your-ground statutes.
- However, there is a significant minority in favor of an obligation to withdraw.
- Of course, nothing tells us what the right rule should be.