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Duty to Retreat or Castle Doctrine

Duty To Retreat And Castle Doctrine: The Laws Of The Land

The laws of each state define the legally justifiable ways in which a person can defend themselves with deadly force, the two most common forms of which are called the "Castle Doctrine" and "Duty To Retreat." These two types of statute have different philosophies, though each can be distilled to a relatively simple concept.

Bear in mind that this is not legal advice, but rather a general discussion about self-defense laws. Please seek professional legal advice from a qualified expert or attorney for more specific advice regarding the self-defense laws of your state. A person should know the self-defense laws of their state, as well as their concealed carry laws.

The Castle Doctrine is more common than duty to retreat statutes by far, but those that live in states with the former breed of statute should still be aware of how the law works.

Castle Doctrine: An Archaic Concept That Comes From Common Law

The Castle Doctrine, such as it is, is named for the axiom that "a man's home is his castle." Though similar precepts have been law in many cultures for centuries, if not millennia, the phrase itself comes from the Semayne's case, an English court decision from the 17th century.

The case itself has nothing to do with self-defense; the Sheriff of London was denied entry into a dwelling during a property recovery case in 1604. The plaintiff in the case opted to sue instead of having the Sheriff break down the door. The outcome of the case, recorded by Attorney General Sir Edward Coke (who may have been Shakespeare) was both that law enforcement can force entry into a dwelling under circumstances that justified doing so but that a person's home "is to him a castle or fortress" which could otherwise be defended as such.

In other words, the rightful occupant of a dwelling has dominion over said dwelling and is permitted to defend him or herself inside it. The modern version of the law - on the books in some form (either by statute or by court decision) in all but the state of New Hampshire - is that a person is justified in the use of force inside their own dwelling if threatened.

Some people wonder if the castle doctrine applies to apartments; it does. In fact, the person that denied entry to the Sheriff of London in Semayne's case was, in fact, a tenant rather than the owner.

Castle Doctrine Limitations

self-defense concealed carry holster

While the right of a person to defend themselves in their own home is assured by law in most US states, there are limitations on said law. For instance, you cannot use force in case of mere trespassing.

The protection of the castle law is also limited to the residence of a person. Outside of their home, they no longer presumed to be first among equals but rather on the same legal ground as anyone else. However, self-defense outside the home is often covered under the so-called "Stand Your Ground" laws which justifies the use of force - even deadly force - if presented with a grave threat.

To put a bit better, the castle doctrine only applies if a person is confronted in their home with a lethal threat. Anything less than a clear and present danger to life and limb will not necessarily make a person immune to conviction.

Additionally, it should be mentioned that just because a castle doctrine law is on the books doesn't mean that charges will never be brought. It may mean an acquittal...but there's a great deal of difference between acquittal at the end of a trial and charges never being brought in the first place.

However, the castle doctrine does confer a certain amount of privilege to the rightful occupant of a dwelling, as a person is supposed to be safe from danger in their own home.

The Duty To Retreat

duty to retreat ccw laws

In contrast to the castle doctrine is the "Duty To Retreat." The general principle behind duty to retreat laws is that the use of force - lethal or otherwise - is not justified until a person has made a reasonable effort to avoid confrontation, either by de-escalation or an attempt to leave the area where the threat is occurring.

In other words, say a hypothetical mugger tries to rob a hypothetical man on the street, lawfully carrying a pistol in a concealed carry holster. Now, under duty to retreat laws, the man accosted by the robber can't necessarily draw and fire unless he has tried to either talk the robber down or flee the area.

The idea, in essence, is that a person has to have exhausted any other possibilities of concluding...whatever is happening...without resorting to violence. To use force, lethal or otherwise, under these laws requires a person to have no other choice but to fight. If you have the ability to flee, you can't use force.

However, there is a significant difference between the castle doctrine and duty to retreat laws. Most notably is that duty to retreat laws are basically universal; they apply at home and at large. The castle doctrine only applies at home.

Next, duty to retreat laws impose a larger burden on the judicious use of force. A person has to not only be presented with a reasonable threat to life and limb; they have to have actively tried to resolve the situation by other means up to and including fleeing the scene. Only when escape is not possible and no other means to resolve the situation without violence can a person use force.

It should also be noted that those states that have duty to retreat laws almost universally allow that use of force is justified when retreat is not possible or would pose a danger in and of itself, so these laws are not unreasonable at face value; they only mandate that a person resort to non-violent means of ending a conflict before resorting to violent ones.

The "Stand Your Ground" laws that have been of much concern in recent years differ from duty to retreat laws, in that use of force - even lethal force - is justifiable if a person is attacked outside the home. In other words, if attacked, you can fight back.

Some Castle Doctrine States Have A Duty To Retreat

As mentioned above, some castle doctrine states actually have a duty to retreat outside of the home.

Twelve states, in fact, impose the duty to retreat outside of the home but have a castle doctrine - by statute or decision - that covers defense of one's self within the home. The following states have both:

  • Arkansas
  • Colorado
  • Connecticut
  • Delaware
  • Hawaii
  • Maine
  • Maryland (excluding the city of Baltimore)
  • Massachusetts
  • Minnesota
  • Nebraska
  • New York
  • New Jersey
  • Rhode Island

In the above states, the duty to retreat applies outside the home, but inside the home the castle doctrine applies.

The Reasonable Person And Self-Defense Law

Some have opined that duty to retreat laws bar a person from defending themselves, but it is not necessarily the case. Neither is it the case that castle doctrine or stand your ground self-defense laws give the average citizen more leeway than they might otherwise have to defend themselves.

In some ways, perhaps; stand your ground and castle doctrine laws in some states give a person immunity from civil suit should they have to defend themselves with even lethal force. However, the existence of a law and what happens when a person actually does defend themselves...are two different things.

First, the decision to charge a person with a crime involves law enforcement, local prosecutors and/or district attorneys, possibly even a grand jury. Whether charges are precluded from being brought depends heavily on every party involved in the legal system, rather than just how the average person interprets law.

Even if a defensive shooting occurs under (ostensibly) the auspices of the castle doctrine or stand your ground laws, the shooting must meet the test of the reasonable person. In other words, a perfectly reasonable person would have done the exact same thing if placed in the exact same scenario.

The reasonable person is an abstract construction, and whether a reasonable person would do the same thing as Person X is not necessarily something that will be universally agreed upon by everyone involved in the legal system.

In other words, there isn't much difference in what will add up to a successful claim of self-defense, regardless of which law is on the books. The only difference is that duty to retreat statutes mandate an attempt be made to get out of the situation without violence first, if possible.

About The Author

Writer sam hoober