A minority of states in the U.S. impose a duty to retreat under self-defense laws. If an individual fails to retreat from a confrontation in which it is possible to do so safely, they lose the right to use deadly force for self-defense. Professor Kimberly Ferzan of the University of Pennsylvania Law School first discusses the duty to retreat vis-a-vis non-lethal force and within one's home and the doctrinal origin of the duty. Professor Ferzan then explores under what circumstances the duty to retreat may apply in some states.
Kimberly Ferzan is a professor at the University of Pennsylvania Law Shool. Her research focuses on criminal law theory.
While early self-defense laws in the U.S. imposed a general duty to retreat with some exceptions, courts have been applying the concept of no-retreat or “stand your ground” for over a century. Both the duty to retreat and no-retreat principles stem from English common law. No-retreat traces back to the “true man” doctrine: that an honest, “true” person without fault who faces an attack from another is not obligated to flee. Most states, including those that impose a duty to retreat before using lethal force, impose no such duty for non-lethal force.
A related common law concept, the “castle doctrine,” extends the no-retreat principle to the home: a person who is confronted with an intruder in the home may use deadly force. Some states broaden the castle doctrine to the workplace or car.
According to Professor Ferzan, in the states that impose a duty to retreat when faced with a threat of death or serious injury, it would apply: 1) before using deadly force, 2) when retreat is not possible to do safely, and 3) the confrontation occurs outside the home. In states that have legislated stand your ground provisions, there is no duty to retreat even outside the home.
Interview with Criminal Law Expert – 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: 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.