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Shotgun News, June 1, 2005, pp. 22-23

Duty To Retreat

If someone attacks you, are you required to retreat before you use deadly force in self-defense? Oddly enough, the answer is more complex than you might assume. A recent decision from the New York courts brought to my attention something that I did not know--in New York State, you have a duty to retreat rather than use deadly force--even if you are standing in the doorway of your home.

In this case, a man named Richard Aiken was convicted of manslaughter. Aiken killed a Theodore Badgett in December of 1999, by hitting Badgett in the head with a lead pipe. Aiken and Badgett lived in the Bronx--in the same apartment building. Contrary to what you might expect, these weren't teenagers or young toughs. They had apparently lived in adjoining apartments for nearly forty years. As the New York high court decision explained:

"Their families were close until 1994 or 1995, when a dispute -- with ultimately tragic consequences -- arose over cable and telephone wiring. The victim and his family believed that defendant was siphoning off their services, even after the service providers found that the suspicion was without basis. In 1997, following a heated verbal exchange, the victim [Badgett] stabbed defendant [Aiken] in the back, hospitalizing him for two days."

The relatiionship, as you might expect, did not improve after Aiken spent two days in the hospital. Badgett apparently continued to make threats to Aiken. "Although the families remained next-door neighbors, separated only by a common wall, from 1997 to 1999 the victim repeatedly threatened to shoot, stab or otherwise injure defendant. He made these threats to defendant's face, to his father and to neighbors -- at one point even brandishing a boxcutter."

So the "victim" didn't learn from his mistake--and Aiken sounds like he had good reason to be scared out of his wits--especially in a city where, remember, it is quite difficult to legally obtain a handgun for self-defense, and even a long gun is strongly discouraged by a somewhat complex licensing procedure.

I wish that I could tell you that Aiken was completely blameless in the confrontation that led to Badgett's death, but Aiken's behavior certainly complicated the matter. Aiken, in the midst of a dispute through the common wall between their apartments, swung a lead pipe into the wall hard enough to make a dent on Badgett's side of the wall. Badgett called the police.

At some point, Badgett went out to the hallway in front of Aiken's door, and made a fatal mistake. According to Aiken--and the courts gave Aiken the benefit of the doubt, and accepted Aiken's version of what happened--Aiken "continued standing in the doorway, never going into the hall, when the victim reached into his pocket, came up to defendant's face 'nose to nose,' and said 'he was going to kill' him. Believing he was about to be stabbed again, defendant struck the victim on his head with the metal pipe, killing him."

I can't say that that Aiken's fears were unreasonable. Badgett had stabbed him in the past. Badgett had repeatedly threatened Aiken with death. Badgett had now approached Aiken, yelling at him, and was close enough to be dangerous with a knife. Under the same circumstances, with Badgett's history of criminal violence, I might have reacted the same way. So why did the police arrest Aiken, and why was Aiken convicted of manslaughter?

Aiken argued that New York law says a person doesn't have to retreat from a threat if he is in his own home, and that standing in his doorway was "in his own home."  New York's courts did not agree. The state high court (in this case, the New York Court of Appeals), decided that an apartment doorway is a "hybrid private-public space" in which a person doesn't have the same reasonable expectation of seclusion as in a home.¹²³

The underlying justification by the judge, the appellate court, and the high court continues to use the claim, advanced in Richard Maxwell Brown's No Duty To Retreat: Violence and Values in American History and Society that until recently, American law had a duty to retreat rather than use deadly force. I can't claim to have exhaustively studied this question, but I know that there is at least some serious argument about whether Brown's claim is correct or not. My study of the struggles over concealed weapon regulation and the uses of deadly force in Colonial and Early Republic America leads to me think that Brown has overstated such a duty to retreat.

One component of the development of concealed weapon laws in the antebellum period was that arguments often led Mr. A to kill Mr. B based on the sometimes justified belief that Mr. B was about to draw a knife or a gun. It was difficult for a jury or judge to dismiss this fear out of hand. I can't recall ever reading a decision or a debate that suggested that there was a duty to retreat under such circumstances, which is rather surprising, if this was actually a well recognized legal obligation.

Once upon a time, there was indeed a duty to retreat, rather than use deadly force. Under English law until 1532, if you killed another person, upon conviction, your property was confiscated and you were sentenced to death--even if you were defending yourself from robbery or murder. It was common for the king to hear appeals if you had been defending yourself, and for him to pardon you--but your property was not returned to you.

Henry VIII changed the law in 1532, clarifying that killing another person in one's home, or on public roads, while defending yourself from murder, robbery, or burglary, was now lawful. You would no longer be convicted for killing in self-defense, nor would your property be confiscated.⁴⁵⁶ The New York Court of Appeals acknowledged that this was the case--but makes the claim that outside one's home, there was a duty to retreat--even though the 1532 statute, quoted in Joyce Malcolm's book, is clear that this duty to retreat did not apply on public roads, either.

The New York Court of Appeals next suggested that requiring a person to retreat rather than use deadly force "may in fact be 'the more civilized view'.... Inevitably, then, a balance must be struck between protecting life by requiring retreat and protecting the sanctity of the home by not requiring retreat."

It seems rather questionable whether it is really "the more civilized view" to require a victim to retreat from a criminal attack. If a criminal engaged in a felonious attack need not fear the possibility of injury or death, it emboldens the attacker, and puts the victim at a greater disadvantage. While government may indeed have a "general interest in protecting life" (unless it is two days shy of birth, or in a "persistent vegetative state"), it also has an interest in protecting the right of law-abiding people to not cower in fear. Aiken wasn't completely law-abiding in this case, but neither was he screaming threats of violence, nor did he have a history of felonious assault--unlike Badgett.

Oddly enough, after this decision claims that there is a duty to retreat except within one's home--and ignores part of Henry VIII's 1532 law to support that claim--the decision goes on to explain that New York State imposed a duty to retreat outside one's home in 1965, overturning a 1940 decision that "held that a defendant faced with felonious attack on a public street was justified 'in standing his ground and, if necessary, destroying the person making the felonious attack.'" I happen to think that this duty to retreat that the New York legislature imposed in 1965 is absolutely crazy, even when under felonious attack, but that's the law. If New Yorkers do not feel like fixing it--perhaps the sensible New Yorkers need to move!

The other interesting question about this decision is whether a man standing in his doorway is within his home or not. The New York high court decided that standing in your doorway isn't the same as being in your home. "[T]he Penal Law and its common law history reflect the concept behind the castle doctrine that inside one's home a person is in a unique haven from the outside world. While a person is not bound to abandon one's home, requiring a person standing in the doorway to step inside the apartment to avoid a violent encounter is not the equivalent of mandating retreat from one's home. Here, defendant need only have closed the door, or pulled up the drawbridge, to be secure in his castle."

That's easy for a judge to write sitting in his study. If you are standing in the doorway, waiting for the police, and someone with a history of felonious attack approaches threatening your life, you must make a split second decision about whether to back up, and hope that you can get the door closed and locked in time, or to defend yourself, before the attacker gets inside your home. I've had to shut a door in a hurry before to deal with an attacker, and it isn't as easy to do as writing, "closed the door, or pulled up the drawbridge."

On a more positive note, The Florida legislature has passed a bill, and Governor Bush says that he will sign it, that removes the duty to retreat. While I think that there are people who might use this change in the law as an excuse to kill an attacker when there might be a better way to defuse the situation, I suspect that it is more likely to create a level of fear among criminals--and that's a good thing. I see no reason why the felon and his victim should be on an equal footing before the law--and that is the situation when you are required to retreat when attacked, rather than draw a gun.

Let me emphasize: if someone starts harassing you, physically attacking you short of serious injury, threatening you, calling you names, or otherwise being a pest, you are just about always better off leaving the area. Even if you are completely justified in drawing a weapon and using it, you are going to spend a lot of time talking to police, lawyers, and dealing with a civil suit by your attacker or next of kin. It is going to be expensive. It is just plain good sense to avoid all of this if there is any way that you can. (And remember: your attacker is a human being too, perhaps having a bad day, a little drunk, or just one of those people badly raised.) But it is also a good thing for the society if thugs realize that the law is biased in favor of the non-aggressive--and aggressive sorts are not on an equal footing with decent people.

Oh yes, the opponents of the proposed change had this to say: "Opponents say it will make Florida like the 'Wild, Wild West.' The bill would take effect Oct. 1."⁷⁸⁹ Odd. The same crowd said the same thing in 1987, when Florida passed another law that took effect on October 1 of that year: non-discretionary concealed carry. They were wrong. The average American is more sensible and thoughtful than the gun control advocates are prepared to admit.

Clayton E. Cramer is a software engineer and historian. His last book was Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (Praeger Press, 1999). His web site is http://www.claytoncramer.com.