Duty to retreat?
This is a discussion on Duty to retreat? within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; In my home state, I don't believe that we have this requirement, but I understand that it is a requirement in many places. My question ...
November 7th, 2012 01:51 AM
Duty to retreat?
In my home state, I don't believe that we have this requirement, but I understand that it is a requirement in many places. My question about it is this: Some of us can't run, much less run from a BG. I personally have psoriatic arthitis. I am doing good to walk some days. If I am confronted, there is no possible way that I am outrunning anybody, and by even trying I would be putting myself in greater jeaprody. As a result, I have decided that my only chance is to face the threat and to fight it out if necessary, either h2h or with a weapon. Now if this were to happen to me in a place where there is a duty to retreat, would there be an exception to the rule for people with disabilities that make it difficult, if not impossible to retreat, or would it be another case of the idiocy of zero tollerance? In a scenario like that, what would be expected of somebody with a disability in the eyes of the law? Thanks for reading.
Ps. My arthitis issue is not readily apparent to people that see me walking down the street. I am a good sized man that gets around pretty well, with the exception of a permanent limp. Another question is, in the eyes of the law, if they consider a person's disabillty in a duty to retreat case, how disabled would you have to be?
November 7th, 2012 01:51 AM
November 7th, 2012 02:01 AM
IMO, you may have a justification if you can provide enough medical documentation to support your case, but the outcome will depend on what happens (before, during and after) in the specific circumstances of your confrontation with the BG(s).
Duty, Honor, Country...MEDIC
¡Cuánto duele crecer, cuan hondo es el dolor de alzarse en puntillas y observar con temblores de angustia, esa cosa tremenda, que es la vida del hombre! - René Marqués
November 7th, 2012 02:04 AM
"One of the greatest delusions in the world is the hope that the evils in this world are to be cured by legislation."
--Thomas B. Reed, American Attorney
Second Amendment -- Established December 15, 1791
and slowly eroded ever since What happened to "..... shall not be infringed."
November 7th, 2012 02:05 AM
Unfortunately, with all the meds and trips to the doctor, I have all the documentation in the world.
Originally Posted by boricua
November 7th, 2012 02:59 AM
Thoughts (which are by no means to be taken as legal advice) ...
Almost without exception, from the "Duty to Retreat" statutes I have seen, the requirement is to recognize the duty to retreat/disengage if you are able to do so. None of them are absolute, blind to conditions.
If by "Permian Basin" you mean Texas, then check the TX Penal Code, notably Sec 9.31 Self Defense and Sec 9.32 Deadly Force in Defense of a Person.
The WHOLE reading of 9.31, 9.32 and 9.33 (among the other statutes) is important, of course, and all of it applies to you. But, note specifically the language in 9.31(e) and 9.32(c) regarding your right to use reasonable force in a place you have every right to be.
According to 9.31 Self Defense:
According to 9.32 Deadly Force in Defense of a Person:
9.31(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force
as described by this section.
As well, note that 9.32 Deadly Force in Defense of a Person states that:
9.32(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force
as described by this section.
... in which the actions taken are presumed reasonable in cases of protecting against use or attempted use of unlawful deadly force, or the imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
9.32(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat
It might not always be possible to safely or effectively withdraw or retreat. Imagine your child has been taken down and requires your assistance and/or defense; or, if you're disabled; or, if retreating would mean all-but-certain death or crippling harm being done to you. NOTHING in these statutes requires you to retreat at all costs. And these statutes specifically acknowledge that in such cases of violent crime being done upon you, there is a presumption of reasonableness and acknowledgement of no duty to retreat in such circumstances.
The duty to retreat if able (given the sanctity of life) is acknowledged in the statutes, sure. But the right of the citizen to use the degree of force one deems reasonably necessary in the circumstances is also strongly supported via these statutes. And the circumstances any person is faced with always must include the totality of circumstances, and that includes any disabling physical issue that precludes safe withdrawal, any situation at the scene that precludes withdrawal (ie, needing to stay with a downed child or other person who requires your assistance to avoid death/injury).
Most of it basically comes down to reasonableness. If 90yrs of age and infirm, or if medically disabled or limited in one's ability to effectively flee or resist, it should be clear the statutes allow for these variations in the population. Not everyone's an athletic and fit 6'4" with deadly and subtle hands and able to run like the wind. Some people have very reasonable physical limitations that preclude any retreat, protracted resistance or ability to withstand larger and more-aggressive assailants.
The point of all this is: you're the citizen. You have every right to determine on your own what you deem to be reasonable in that situation, subject to the right of all other citizens in your state to judge that reasonableness after the fact.
Still, it's always in our best interests to be seen as the one who's attacked, under threat, instead of the aggressor. Not provoking or instigating the confrontation, backing up, speaking your intent to not harm anyone, speaking your intent to avoid confrontation, loudly demanding you be left alone, loudly asking others for help/911, staying behind cover/barriers if able, and firmly resisting any attempt to damage you (even if that takes deadly force to do so). All of these aspects can help your case, in such a situation. It'll still be up to a jury of others to determine the reasonableness; no avoiding that. As such, everything you can do to help assure your actions are seen as reasonable is in your best interest, presuming you're safely able to do such things ... and that includes retreat.
For myself, what would I deem reasonable? I'm disabled, not able to run any great distance, and not able to withstand a violent and determined physical attack for long. I'm all for withdrawing if safely able to do so, but not at the cost of my life or the life of another. If attacked, I'll defend against it. If the assailant's actions require a level of force sufficient to stop those actions to a degree that appalls people, so be it, so long as I believe that level of resistance required to stop the attack. And that's the crux of the "reasonable man" and "duty to retreat" elements in the law. As with anyone involved in any such situation, I'll be on the hook to have my actions adjudged by others for their reasonableness and justifiability. I'm willing to stand for that, as I should be, since I believe such actions to be lawful, right and just, and all such actions of a criminal violent assailant to be the opposite. But that's just me.
If you're still concerned over the use-of-force statutes, I would strongly suggest speaking with a competent attorney in your state who is well-versed in this subject.
Your best weapon is your brain. Don't leave home without it.
self defense (A.O.J.).
How does disarming
the number of victims?
Reason over Force: The Gun is Civilization (Marko Kloos)
NRA, SAF, GOA, OFF, ACLDN.
November 7th, 2012 03:14 AM
Originally Posted by ccw9mm
November 7th, 2012 03:52 AM
Understand this is only my opinion, but I would think that significant physical disabilities that would impare a persons ability to take resonable steps to retreat would be taken into account on a case by case basis in states that require a duty to retreat. I'm sure it would be up to the defender to prove his or her disablities to mitigate the case, provided he or she met the first criteria that they had first avoided conflict.
In those jurisdictions where the Duty To Retreat
requirement exists, the burden of proof is on the defense
to show that the defendant was acting reasonably
. This is often taken to mean that the defendant had first avoided conflict
and secondly, had taken reasonable steps to retreat
and so demonstrated an intention not to fight before eventually using force.
Here in Oklahoma, where I reside, we do not have a duty to retreat.
Here is our S.D.A. statute concering the "no duty to retreat.":
Oklahoma ; O.S. § 21.53, 1289.25
D. A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
November 7th, 2012 06:37 AM
Anybody with an ounce of common sense would try to avoid a confrontation before they have an obvious presumption of an imment threat to their life or bodily injury--that includes retreating and, iMO, is part of your responsibilty as a CC regardless of the state law on duty to retreat or stand your ground. As far as Hillhick's thread comments, it is obvious that if he cannot retreat because of physical limitations then he cannot retreat--period/end of story. He must do what he has to do and in his condition, his presumption of imminent threat is met a lot sooner than most of us who, thank G-d, are physically fit. Bottom line on any of this, should a scenario conclude with the use of a firearm, will be the prosecutor and a jury if if comes to that; in no way should some kind of "explanation" of the words of the law on this preclude Hillhick from defending himself.
November 7th, 2012 07:13 AM
Regardless of state law, I will avoid conflict if possible. If forced upon me, I'll fight like a cornered dog, and face the consequences after surviving.
Freedom doesn't come free. It is bought and paid for by the lives and blood of our men and women in uniform.
NRA Life Member
November 7th, 2012 08:22 AM
Escape, Evade, ENGAGE...If you can't escape, try to evade, if you can't evade, it's time to engage.
Cccw9mm gave you the most comprehensive answer that you could have received...JMO
Sometimes in life you have to stand your ground. It's a hard lesson to learn and even most adults don't get it, but in the end only I can be responsible for my life. If faced with any type of adversity, only I can overcome it. Waiting for someone else to take responsibility is a long fruitless wait.
November 7th, 2012 08:24 AM
Retreat FORWARD,I was trying to retreat but the Little Angel wouldn't git outta my way,so I moved him with some 00 buck
"Outside of the killings, Washington has one of the lowest crime rates in the country,"
--Mayor Marion Barry, Washington , DC .
November 7th, 2012 10:03 AM
OK.....A tactical maneuver towards the rear.
Originally Posted by Crowman
November 7th, 2012 10:08 AM
I understand. I'm in my 40s, 5'6" and about 110lbs. I look physically fit, though thin at a glance, but the fact is I'm a type I diabetic, have extensive nerve damage and muscle atrophy, have had 4 organ transplants, one foot is permanently broken and I, like you, am not going to outrun anybody either. While my state is a "stand your ground" state, I'm not going to try to outrun an attacker anyway. With my condition, I'm going to stop the threat, and hope that my disability counts for something in court in regards to my ability to defend myself by other means like, "why didn't you just run away?"
Originally Posted by Hillhick
November 7th, 2012 10:13 AM
Not a problem (yet) in a Stand Your Ground & Castle Doctrine state. Some of us have the inability to retreat or outrun a young person intent on doing us great bodily harm & I have yet to meet a person who could outrun a bullet. In any case I'd rather be judged by 12 than carried by 6.
USN Submarine & UDT/SEAL Veteran
1SG, US Army Retired - Airborne Infantry All the Way!
Special Warfare Mentor
November 7th, 2012 10:44 AM
I don't think any of the states that have a requirement to retreat specifies the distance or speed at which the retreat needs to be made. I would suspect that the OP has the ability to at least take a few steps backwards. I don't believe the law requires an about face, just an attempt to create distance and disengage from situation. That being said If the OP takes as many steps away from the threat as he can possibly before the threat closes to within the 21 foot distance commonly established by the Tuller drill than I would think he has met the legal requirements. He attempted to disengage, the threat persued him and let him with no choice but to defend himself.
Yelling "STOP, LEAVE ME ALONE, BACK AWAY," while disengageing is also a good idea. Ideally the BG will not want to draw attention, and you want witnesses to the entire event, including you attempt to disengage. What you don't want is someone saying "I heard a gun shot and saw this guy standing over the poor guy that got shot." You want everyone to be clear on who the aggresser was.
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