Key Takeaways
- Stand-your-ground laws remove the duty to retreat before using deadly force outside the home, but they do not abandon the requirements of necessity and proportionality.
- No jurisdiction requires you to retreat before using non-deadly force, and under the castle doctrine you need not retreat from an attacker in your own home.
- In states that keep a duty to retreat, it applies only before using deadly force outside the home and only when you can retreat in complete safety.
Do stand-your-ground laws mean you can use deadly force whenever you are attacked, or do they change something much narrower?
In this TalksOnLaw Brief, Kimberly Kessler Ferzan, the Herbert F. Goodrich Professor of Criminal Law and Professor of Philosophy at the University of Pennsylvania Carey Law School, explains what stand-your-ground rules actually permit, and why they leave the core limits of self-defense in place.
Necessity and Proportionality Still Apply
Professor Ferzan begins with a common misconception: that stand-your-ground laws are a complete abandonment of necessity and proportionality. They are not. If someone comes at you and you could stop them either by punching them or by shooting them, a stand-your-ground jurisdiction will still require you to punch them, because you may not use force that is not necessary. Nor may you use force that is disproportionate. If someone comes at you to punch you, you cannot stand your ground and respond with deadly force. What these laws remove is a single requirement: that a defendant run away when retreat is possible.
Where Retreat Was Never Required
To show how narrow that change is, Professor Ferzan maps the places where the law never required retreat. No jurisdiction requires you to run away from someone threatening to punch you instead of using force to stop them. That rule traces to what is called the “true man” doctrine. Some theorists criticize the label as a testosterone-laden, manly-men-stand-up-for-themselves view, but other scholars trace it to Sir Matthew Hale and the idea that a true man is an innocent man, and that right should not give way to wrong. If you are lawfully where you are entitled to be, you should not have to leave rather than use at least non-deadly force.
There is also no duty to retreat within your home. Under the castle doctrine, if someone attacks you there, you do not have to run out of your house; you may stay and defend yourself. And even where a duty to retreat exists, it applies only if you can retreat in complete safety. If turning and running would make you more vulnerable to attack, you are not required to do it.
What Stand-Your-Ground Changes
That leaves one situation. In a jurisdiction without a stand-your-ground law, the only place you must retreat is before escalating to deadly force outside the home. A stand-your-ground law removes that last duty, so a person who is otherwise justified in using deadly force does not have to retreat first.
What to Know Now
The distinction Professor Ferzan draws remains the key to understanding these laws. A majority of states now follow a no-retreat rule in public places, by statute or court decision, while others keep a duty to retreat outside the home. Some stand-your-ground statutes add procedural protections. Florida's law, for example, grants immunity from prosecution to a person who used force as permitted, and since a 2017 amendment the prosecution must overcome a claim of immunity by clear and convincing evidence at a pretrial hearing. Many of these statutes also deny protection to a person who provoked the confrontation or was engaged in certain criminal activity. The policy debate continues: supporters say the laws protect law-abiding people who should not have to flee from attackers, while critics raise concerns about effects on gun violence and about uneven application. Whatever a state's retreat rule, the force used must still be necessary and proportionate.
