Self Defense Bill of Rights Part II

When did running away become a good idea?

By Ken Hanson

In Part One of my article on the Stand Your Ground laws being introduced across the country, I examined the most important part of these bills – returning the presumption of innocence to those who act in self-defense. If you did not read that article, it is highly suggested you go back and read it, as this article builds upon the prior article.

Broadly speaking, these bills implement two categories of changes. First, as we examined in part 1, a presumption against the bad guy is reestablished, and the person acting in self-defense is granted civil and criminal immunity for their actions. The second category of change is elimination of the duty to retreat. It is this change, more than the others, that creates hysteria among the social engineering crowds who claim it is nothing more than a license to murder. (After all, it is very hard to argue against creating a presumption against a felon, so this is the only area they have left to argue against.)

But just what is the duty to retreat, and where does it come from?

In Ohio, and most states with a duty to retreat, a person cannot exercise lethal force in self-defense if they have an ability to safely remove themselves from the situation without using force. Typically, this duty does not apply to the actor’s own home or own place of business. As we examined in part 1 of this series, a judge and jury, many months later in the comfort and security of a well lit courtroom, will calmly and rationally second-guess the actor to determine if the actor reasonably met their duty under the law. So once again, the actor, not the prosecutor, at the actor’s own jeopardy and expense, has the burden of proof to establish that they COULD NOT run away. If the actor cannot make this case, many months removed from the chaos of the encounter, then the actor is ruined for life.

Given the incredible stakes being played for, there must be a careful, well thought out history behind the duty to retreat, right? There is, if you look to 16th century England and earlier. This during a time in which self-defense was not even widely recognized, instead being largely lumped into “excusable” homicides, wherein the actor would be convicted then civilly forfeit his property to obtain a pardon.

That’s right, the duty to retreat comes from the days of flintlocks and swords, not Glocks and spring knives. The case law talks about highwaymen and horse chases, not home invasions and car jackings. As the Minnesota Supreme Court stated:

    The doctrine of 'retreat to the wall' had its origin before the general introduction of guns. . . . It would be good sense for the law to require in many cases, an attempt to escape from hand to hand encounter with fists, clubs, and even knives. . .while it would be rank folly to so require when experienced men, armed with repeating rifles, face each other in an open space, removed from shelter, with intent to kill or do great bodily harm. State v. Gardner, (1905) 104 N.W. 971.

If you look at the early U.S. Supreme Court cases on self-defense, the duty to retreat was soundly rejected. In what is widely considered the first Supreme Court case to do so, Beard v. United States, (1895) 158 U.S. 550, Justice Harlan stated for a unanimous Supreme Court:

    [Beard] was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack upon him with a deadly weapon, in such a way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.

Nearly 30 years later, one of our most celebrated jurists, Oliver Wendell Holmes Jr., examined the absurdity of allowing a jury to second guess someone acting in self-defense. Once again reaffirming that there was no duty to retreat from anywhere that a victim has a right to be, he stated “if a man reasonably believes that he is in immediate danger of death or grievous bodily harm . . . he may stand his ground…. [d]etached reflection cannot be demanded in the presence of an uplifted knife.” Brown v. United States, (1921) 256 U.S. 335.

Early Ohio law was also contemptuously dismissive of the concept of running away. As stated in Erwin v. State, (1876) 29 Ohio St. 186:

    [T]he law, out of tenderness for human life and the frailties of human nature, will not permit the taking of it to repel a mere trespass, or even to save life, where the assault is provoked; but a true man, who is without fault, is not obliged to fly from an assailant, who, by violence or surprise, maliciously seeks to take his life or do him enormous bodily harm.

This was repeatedly the case in a majority of states at the time. As Richard Maxwell Brown stated at page 5 in his excellent NO DUTY TO RETREAT: VIOLENCE AND VALUES IN AMERICAN HISTORY AND SOCIETY (1991) “Americans rejected such English cowardice just as they rejected English rule; thus, a majority of Americans gained the right to stand their ground and defend themselves as their fledgling country gained its independence from England.”

It will do no good to examine the reasoning behind the shift away from stand your ground to duty to retreat in detail, and this article has probably already taxed the reader’s patience with legal citations. Whether we want to blame liberal activism, the wide adoption of the Model Penal Code, laziness on the part of prosecutors and judges or a society that is willing to engage in meaningful litigation over how many cable channels a prisoner is entitled to, the fact remains that our legal system has now “progressed” to the adoption of 16th Century legal doctrine.

In this day of senseless shootings, carjacking, gang “wilding” attacks and all other horrors we see on the nightly news, the more appropriate examination is whether our modern day crime environment allows us, with a straight face, to require the law-abiding citizen to prove they couldn’t outrun a bullet. If a loved one is attacked by a repeat offender who has spent the last 2 years in prison working out with weights for lack of anything better to do, do you want that loved one to have to prove to a jury, 9 months after the fact, that they couldn’t have reasonably gotten away?

Before you dismiss the above analogies and instead rely on common sense alone to acquit you, keep in mind Ohio is the same state that recently instructed a jury that someone has a duty to retreat from a locked prison cell, and it was only the Ohio Supreme Court that finally ruled that someone couldn’t retreat from a locked prison cell. State v. Cassano, (2002) 96 Ohio St. 3d 94.

Still feel like playing those odds, or should we just remove that question from the discussion entirely? Having tried cases from both the prosecution and defense tables, I’ll sleep soundly doing away with the duty to retreat.

Related Stories:
Ohio considers measure to modernize self-defense laws (HB541)

Legislative hearings held on two pro-gun bills this week

Senate's version of Castle Doctrine introduced as SB308

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