Stand your ground laws are provisions under self defense laws that justify the use of deadly force under imminent threat of harm regardless of whether a safe retreat is possible. A majority of states in the U.S. are stand your ground states. Professor Kimberly Ferzan of the University of Pennsylvania Law School explains the nuances of stand-your-ground provisions and how they relate to other self defense doctrines.
A common misconception about stand your ground laws is that they justify escalation to deadly force under any circumstances when someone is attacked. According to Prof. Ferzan, the principles of necessity and proportionality under self-defense laws are unchanged by stand your ground provisions. In legitimate self defense, the force used must be proportionate to the attack. For example, if an unarmed child is attacking a man, the man cannot use deadly force in self defense regardless of the jurisdiction’s stand your ground law. Similarly, if the threat is not imminent, force is not justified.
While an increasing number of states have legislated stand your ground provisions in recent years, a minority of states still impose a duty to retreat. Even among those states, however, many do not require retreat in the home (known as the castle doctrine). Generally, a duty to retreat arises (1) when a person is attacked outside the home, (2) before resorting to deadly force, and (3) when retreat is possible to do safely.
Kimberly Ferzan is a professor at the University of Pennsylvania Law Shool. Her research focuses on criminal law theory.
Interview with Criminal Law Scholar – Professor Kimberly Ferzan
TalksOnLaw (Host): Professor Kimberly Ferzan of the University of Pennsylvania School of Law. Kim, welcome to TalksOnLaw.
Kimberly Ferzan: Thanks so much for having me, Joel.
Host: The stand your ground rules, maybe you could quickly explain what do they actually permit that other states don't?
Kimberly Ferzan: What's important about stand your ground laws is that sometimes we think that it's a complete abandonment of proportionality and necessity and I think it's important to recognize that that's wrong. So it is still true that if someone comes at me and I have the opportunity to either punch them or shoot them that stand your ground jurisdictions will require me to punch them. I'm not allowed to use force that isn't necessary. I'm also not allowed to use force that is disproportionate. So, if someone comes at me to punch me, I am not allowed to stand my ground and use deadly force. So, we still have proportionality and necessity at work except for the fact that we remove the requirement that defendants are required to run away if they can retreat with complete safety.
Host: Professor, I'd love to talk quickly about duty to retreat. What is the duty to retreat, and perhaps, we could give a couple of different examples of states’ responses to it?
Kimberly Ferzan: The first thing to recognize is that there is not a duty to retreat before using non-deadly force. No jurisdiction says if somebody's threatening to punch you that you need to run away instead of stopping them by using force against them. Now, that traces back to what's been called the True Man Doctrine, which theorists are often critical of because it sounds like this very testosterone-laden “manly men stand up for themselves” kind of view, but other scholars say this actually traces to the view from Sir Matthew Hale that it's about innocent men. So, the idea of a true man is an innocent man and the idea that right should not give way to wrong. So, if in fact you're lawfully where you're entitled to be, you shouldn't have to leave that place, rather than use at least non-deadly force. So, there's no duty to retreat for non-deadly force and there's also no duty to retreat within your home. So, within your castle, the Castle Doctrine, if somebody attacks you, you do not have to run out of your house; you get to stay and defend yourself. And so that just leaves the question whether or not you need to retreat before using deadly force outside of your home. There, still, you only have this duty if you can do so with complete safety. So, if turning and running away is going to actually make you more vulnerable to attack, you are not required to retreat. But, you may not use deadly force if in fact you can retreat with complete safety.
Host: So, there's no duty to retreat for non-deadly force. There's no duty to retreat in your home. The only place where you have to retreat is before you escalate to deadly force outside the home.
Kimberly Ferzan: Right, that's correct, assuming that your jurisdiction does not have a stand your ground law, because what the effect of stand your ground is to say you also don't have a duty to retreat before using deadly force.