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

    253.4.5 Duty To Retreat

    253.4.5.1 Self Defense: Duty To Retreat -- Advent Of Firearms As Reason For Not Applying The Common Law Retreat Rule
    253.4.5.2 Duty To Retreat: Knowledge That Retreat Is Available And Possible With “Complete Safety”
    253.4.5.3 Self Defense: Retreat -- Defendant Must Be Able To Retreat With “Complete Safety”
    253.4.5.4 Self Defense: Duty Of Retreat Requires Knowledge
    253.4.5.5 Self Defense: No Obligation To Seek Protection From Public Authorities
    253.4.5.6 Self Defense: No Duty To Retreat From Attack In Place Of Business Or Employment
    253.4.5.7 Self Defense Federal Rule: No Duty To Retreat But Lack Of Retreat May Be Considered

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PRACTICE NOTE: "...[T]he common law rule, which required the assailant to retreat to the wall, had its origin before the general introduction of firearms. If a person is threatened with death or great bodily injury by an assailant, armed with a modern rifle, in open space, away from safety, it would be ridiculous to require him to retreat. Indeed, to retreat would be to invite almost certain death." (U.S. v. Taylor (DC Cir. 1975) 510 F2d 1283, 1287.)

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

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PRACTICE NOTE: Some jurisdictions require a person to retreat before utilizing self defense. (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.7(f).) However, this rule is predicated upon two essential elements of subjective knowledge: 1) that retreat was available; and 2) that retreat was possible with "complete safety."

    For example, in State v. Jones (CT 1995) 665 A2d 910, 915 the reviewing court held that the trial court incorrectly instructed the jury to measure the defendant's knowledge of his ability to retreat according to an objective standard of reasonableness rather than the subjective standard of the defendant's actual knowledge. (See also State v. Provoid (NJ 1970) 266 A2d 307, 310.)

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

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RATIONALE: Where a jurisdiction requires retreat, it would be illogical to require it if it could not be accomplished with complete safety.

POINTS AND AUTHORITIES: Where retreat is required the defendant must be able to retreat with "complete safety." (See State v. Byrd (CT 1994) 641 A2d 818, 822-23; see also State v. Anderson (CT 1993) 631 A2d 1149, 1155-56 [reversible error for failure to include the word "complete" before "safety" in discussing the duty of retreat]; State v. Ray (CT 1993) 619 A2d 469, 476; Robinson, Criminal Law Defenses (West, 1984) (1999 Pocket Part) § 131(c)(4) p. 80.)

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

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

    A person must retreat from the perceived harm if he or she is (1) able to do so with complete safety and (2) is aware of the ability to retreat.  In other words, the law requires both that a retreat in complete safety be available and that the defendant be aware of its availability.

[See generally State v. Byrd (CT 1994) 641 A2d 818, 822-23; cf. A Collection of CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 2.38 [General Jury Instructions-Commentary-Self Defense of Person] p. 2-69 (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).]

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RATIONALE: Unless the defendant has knowledge of the availability of retreat it would be unfair to preclude self defense on the basis that the defendant did not retreat.

POINTS AND AUTHORITIES: "If a defendant confronted with deadly force knows retreat can be made with complete safety and fails to do so, the defense of justification is lost." (Brown v. Artuz (2nd Cir. 1997) 124 F3d 73, 81; see also State v. Tate (CT 1994) 642 A2d 1223, 1227-28; State v. Quintana (CT 1988) 547 A2d 534, 540-41; see also A Collection of CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 2.38 [General Jury Instructions-Commentary-Self Defense of Person] p. 2-69 (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).)

    However, some pattern instructions fail to include this knowledge element. (See e.g., IOWA CRIMINAL JURY INSTRUCTIONS 400.3, element 2 [Justification - Elements - Defense Of Third Person] ["An alternative course of action was available to the defendant"] (Iowa State Bar Association, 1991); see also WYOMING CRIMINAL PATTERN JURY INSTRUCTIONS, WPIC 8.08 [Duty To Retreat] (Wyoming State Bar, 1996).)

    Hence, for the "duty to retreat" rule to apply, the defendant must have known that he or she could have retreated with complete safety. (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:43 [Defenses-Justification–Duty To Retreat] (West, 1999); People v. Almond (NY 1971) 322 NYS2d 500, 582.)

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

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

    The defendant does not have to retreat unless [he] [she] knew about the avenue of retreat.

[See generally People v. Almond (NY 1971) 322 NYS2d 500, 582; cf. MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 5:07 [Self-Defense] ¶ 3, sent. 2 (Micpel, 1999).]

    Before acting in self defense a person must retreat if he or she knew that the retreat could be accomplished with complete safety.

[Cf. NEW JERSEY MODEL JURY CHARGES - CRIMINAL Chap. 3 [Justification-self defense, Deadly Force] General Provisions, ¶ 5 (New Jersey ICLE 4th ed. 1997).]

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PRACTICE NOTE: The mere fact that previously he could have invoked the interposition of the public authorities for his protection does not preclude a claim of self defense. (Wharton’s Criminal Law (West, 15th Ed. 1993) § 189, p. 453.)

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

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PRACTICE NOTE: See Wharton’s Criminal Law (West, 15th Ed. 1993) § 128, p. 198.

See also NCJIC 253.4.4.3 [Self Defense: No Duty To Retreat From Dwelling: Porches, Hallways, Etc.].

See generally, NCJIC 305.19.1 [Self Defense].

See generally, NCJIC 253.4.1.20 [Self Defense: Federal Model Instructions].

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POINTS AND AUTHORITIES: "[T]he general rule is that a defendant has no duty to retreat..." (Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 8-10, Comment, p. 8-61.) However, the failure to retreat may be considered. (Ibid.)

    The failure to retreat, if the defendant could have safely retreated and did not do so, may be considered with other circumstances in the case, in determining whether the defendant went further in repelling the danger, real or apparent, than he was justified in doing under the circumstances.

[Source: United States v. Whalen, 940 F3d 1027 (7thCir.1991); United States v. Blevins, 555 F2d 1236, 1239; see also United States v. Loman, 551 F2d 164 (7th Cir. 1977).]

    Rationally, the failure to retreat is a circumstance to be considered with all the other in order to determine whether the defendant went further than he was justified in doing; not a categorical proof of guilt.

[Source: Brown v. United States (1921) 256 US 335, 343 [41 SCt 501; 65 LEd 961].]