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253.4 Self Defense, Defense Of Others, Defense Of Property -- Complete

    253.4.4 Defense Of Habitation Or Place Of Business

    253.4.4.1 Assailed Person Need Not Retreat From His Or Her Residence
    253.4.4.2 Self Defense: Applicability of No Duty to Retreat Rule To Temporary Residents Or Guests
    253.4.4.3 Self Defense: No Duty To Retreat From Dwelling: Porches, Hallways, Etc.
    253.4.4.4 Defense Of Habitation: Applicability To Temporary Sleeping Areas, Place Of Business, Etc.
    253.4.4.5 Self Defense: Duty Of Co-Occupants To Retreat

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    253.4.4.1    Assailed Person Need Not Retreat From His Or Her Residence

RATIONALE: It would be unreasonable to require a person to retreat from his or her own home before using force to repel an intruder.

POINTS AND AUTHORITIES: The common law doctrine of retreat, which is recognized in some jurisdictions, should not apply when the person assailed is in his or her own dwelling. (See Wharton’s Criminal Law (West 15th Ed. 1993) § 131, pp. 219-22; see also K.L.T. v. State (FL 1990) 561 So2d 338, 339-40 [one of the exceptions to the general duty to retreat from attack applies when a person is attacked in her own home]; State v. Laverty (ME 1985) 495 A2d 831, 833 [rule that individual has no duty to retreat before using deadly force in self defense where individual is in his own dwelling place is applicable even if the assailant is lawfully present in the dwelling place]; State v. Provoid (NJ 1970) 266 A2d 307, 310-11 [privilege of self-defense without retreat extends to anywhere within the curtilage of a man's home]; State v. Bottenfield (TN 1985) 692 SW2d 447, 452 [person is under no duty to retreat in his own home, even if he can safely do so].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTE:

Defense Of Habitation Or Premises. Robinson, Criminal Law Defenses (West, 1984) § 135 pp. 110-12.

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

    A person assailed in [his] [her] own home is not bound to retreat from the house to avoid violence, even though a retreat may safely be made if [he] [she] has reason to believe and does believe that [his] [her] own life is in danger or that [he] [she] is in danger of receiving great bodily harm.

[Source: People v. Hubbard (CA 1923) 64 CA 27, 37 [220 P 315].]

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RATIONALE: It would be unduly restrictive to limit the applicability of such a rule to a permanent or temporary resident of the household or dwelling. Such a rule would impose a duty to retreat upon persons such as nonresident family members, household employees, babysitters, social guests and others who have a right to be in the dwelling. Accordingly, the "no retreat" rule exception should apply to such persons as well.

POINTS AND AUTHORITIES: Most jurisdictions have special rules applicable to defense of self or others when the defendant was in his or her dwelling or residence. For example, jurisdictions that recognize the "duty to retreat" rule, may provide an exception to that rule when the defendant was in his or her own dwelling and was not the initial aggressor. (See e.g., People v. Emick (NY 1984) 481 NYS2d 552, 563; People v. O’Brien (NY 1982) 451 NYS2d 840; Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5.44 [Defenses - Justification – Commentary] (West, 1999).) To avoid overly restrictive application of this rule it should apply to temporary guests. (See e.g., People v. Smith (MI 1974) 221 NW2d 464; see also People v. White (NY 1984) 484 NYS2d 994, 996 [invited social guests had no legal duty to retreat]; State v. Stevenson (NC 1986) 344 SE2d 334, 335-36; Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:44 [Defenses - Justification – Commentary] (West, 1999).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

    A person who is a guest at another person’s [house] [property] [______] may lawfully use self defense without first attempting to retreat.

[Cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A) inst. 5 [Retreat-Own Premises/Guest] p. 266 (South Carolina CLE, 1994).]

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PRACTICE NOTE: For purposes of the exception to the "no retreat" rule for a person’s dwelling, porches or other similar structures as well as hallways outside of a defendant’s apartment may be deemed to be part of one’s dwelling.  (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:44 [Defenses-Justification–Commentary] (West, 1999); see also People v. McCurdy (NY 1982) 450 NYS2d 507, 510.)

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

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    253.4.4.4    Defense Of Habitation: Applicability To Temporary Sleeping Areas, Place Of Business, Etc.

PRACTICE NOTE: There may be cases where further definition of the term "habitation" is needed. For example, while the term "home or dwelling" seems to denote a building or structure, a habitation could also include other less permanent habitations such as a hotel room, tent or a temporary sleeping area, such as might be utilized by a "homeless" person. (People v. McCleod (CA 1997) 55 CA4th 1205, 1217 [64 CR2d 545]; see also In the matter of E.P. (TX 1998) 963 SW2d 191, 193 [factors to be considered include whether the structure was being used as a residence at the time of the trespass; whether the structure "contained bedding, furniture, utilities, or other belongings common to a residential structure"; and whether the structure was of such character that it was likely intended to accommodate persons overnight].)

    It has also been suggested that a place of business may be a habitation. (Perkins & Boyce, Criminal Law (Foundation Press, 1982) p. 1151; see also State v. Baratta (IA 1951) 49 NW2d 866, 871-72 [a person attacked in his home, or place of business, may meet force with force, even to extent of taking life, if it is necessary or appears to be necessary]; State v. Shiles (MO 1945) 188 SW2d 7, 9; State v. Goldberg (NJ 1951) 79 A2d 702, 709 [failure to instruct that defense of habitation applies to business was reversible error].)

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].

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PRACTICE NOTE: There is a conflict in the jurisdictions as to whether there is no duty to retreat when both the aggressor and the victim are "in their castle" -- i.e., where the assailant and assailed share the same living quarters. (See Annotation, Homicide: Duty to Retreat Where Assailant and Assailed Share the Same Living Quarters, 67 ALR5th 637.)

    However, recently several jurisdictions have held that there is no duty to retreat from an assailant in one’s own home even if the assailant is a co-resident. A rule requiring retreat in such a situation would be incompatible with the abused spouses’ ability to protect themselves and further, jury instructions on such a rule of retreat could contradict a battered spouse defense. (See State v. Glowacki (MN 2001) 630 NW2d 392; see also Weiand v. State (FL 1999) 732 So2d 1044, 1056-57; State v. Gartland (NJ 1997) 694 A2d 564, 566-572.)

    The instruction in Weiand was adopted with only minor changes by the Florida Supreme Court as a standard instruction as follows:

    If the defendant was attacked in [his] [her] own home or on [his] [her] own premises by [a co-occupant] [any person who was lawfully on the premises], the defendant had a duty to retreat within the residence to the extent reasonably possible without increasing [his] [her] own danger of death or great bodily harm.

    However, the defendant was not required to flee [his] [her] home and had the lawful right to stand [his] [her] ground and meet force with force, even to the extent of using force likely to cause death or great bodily harm if it was necessary to prevent death or great bodily harm to [himself] [herself].

[Source: Standard Jury Instructions - Criminal Cases (Castle Doctrine) (2000) 789 So2d 954, 955 [3.04(d) Justifiable Use of Deadly Force].) 

CAVEAT:  Authorization of the instruction by the Florida Supreme Court does not foreclose legal challenges to it, requested modifications of the instruction, or the giving of an alternative to the standard instruction: "[W]e express no opinion on the correctness of this instruction and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of this instruction.  We further caution all interested parties that the comment associated with the instruction reflects only the opinion of the committee and is not necessarily indicative of the views of this Court as to its correctness or applicability." (Standard Jury Instructions - Criminal Cases (Castle Doctrine) (2000) 789 So2d at 954.)

See generally, FORECITE National™ 305.19.1 [Self Defense].

See generally, FORECITE National™ 253.4.1.20 [Self Defense: Federal Model Instructions].