Friday, August 23, 2019

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Vernellia Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

Article Index

II. History of Self-Defense and the Retreat Doctrine

According to Sir William Blackstone, there were three kinds of homicide at the common law: justifiable, excusable, and felonious homicide. To be justified, the killing had to occur because of some unavoidable necessity, for the advancement of public justice, or for the prevention of any forcible or atrocious crime. *4 While all killing was viewed as a public wrong, justifiable homicide was regarded more favorably than excusable homicide since some slight degree of fault is present in excusable homicide cases. However, even justifiable homicide was discouraged. Blackstone pointed out, and correctly so, that permitting “subjects” to kill so freely and without restraint is characteristic of an uncivilized society, not a civilized one. Thomas Paine advised, “[i]t is always possible to go from the natural to the civilized *5 state, but it is never possible to go from the civilized to the natural state.” Blackstone further indicated that killing to prevent crime should not be permitted except where the punishment for the presumed crime is also death. Here, it appears that Blackstone was concerned about proportionality: the punishment should fit the crime. If one may kill an assailant, it is only because the assailant's crime would be punishable by death. Anything less is untenable in a civilized society that professes to regard life so highly.

In the English law, killing in self-defense was not justifiable; rather, it was excusable in certain cases. To be excused, the homicide had to fall into one of two categories: per infortunium, by misadventure, or se defendendo, self-defense. To discourage killing with impunity in the name of self-defense, Blackstone counseled that the right to defend oneself did not guarantee a right to attack. Because the penalty for every felony was death, a defendant who killed another in self-defense had to be *6 pardoned by the king or suffer the consequences. The pardon was granted only in cases where the defendant had retreated until his back was “to the wall” and in cases of reasonable necessity.

In 1806, an American court considered the first self-defense case, Commonwealth v. Selfridge. Selfridge's trial was the first in a line of cases in this country in which the law of self-defense was influenced by notions of pride and honor. Selfridge was charged with manslaughter for killing Charles Austin, an eighteen-year-old Harvard student. Selfridge, himself an attorney, had quarreled with Benjamin Austin, the decedent's father. The elder Austin had posted a derogatory statement about Selfridge in the newspaper. Selfridge retaliated by posting the comment that Benjamin Austin was “a coward, liar, and a scoundrel.” Subsequently, Selfridge was told that Benjamin Austin meant to harm him. The next day, Selfridge saw the younger Austin carrying a large cane, assumed that the young man intended to do him harm, and shot him in the street “when the deceased was at arm's length.” Other witnesses, however, testified that Selfridge shot Austin as soon as he saw him. According to Wharton, if the jury believed the state's witnesses, then the case would have to be one of murder. However, even if the jury believed the defendant's version, the case would be manslaughter. Wharton held this position because of the defendant's failure to retreat. The defense at trial was that “[t]he honor of a gentleman should be as sacred as the virtue of a woman; but the female is authorized to take his life who would violate her honor. Why is not a man bound to maintain his honor at the same hazard?” Wharton commented that “the whole case-bill, bail (which had been set at two thousand dollars), and verdict-exhibited a singularly loose estimate of the value of human life.”

Richard Singer in his article The Resurgence of Mens Rea II-Honest But Unreasonable Mistake of Fact in Self Defense argues that the Selfridge court improperly instructed the jury because of its misplaced reliance on East's interpretation of the law of self-defense. Singer explained that the commonwealth had not tried the case as one of murder but of manslaughter, and that the defendant did not raise self-defense, but prevention of a crime as his defense. A homicide committed in prevention of crime would justify Selfridge's use of deadly force against Charles Austin. If Selfridge was relying on the prevention of a crime defense, then no retreat was required. Singer therefore maintained that because East erred in his interpretation of self-defense doctrine, by requiring a reasonableness standard, courts that relied upon Selfridge thereafter also misapplied the law. Thus began the transmogrification of self-defense from a narrowly applied doctrine into one of expansive scope.

In 1830, Tennessee decided the next significant case involving self-defense, Grainger v. State. The case permits “cowardly and timid” people to kill, even though no danger of serious bodily harm exists. The concept of reasonableness becomes embedded in the discussion of self-defense. However, the facts indicate that the defendant retreated until his back was to the wall before he killed his assailant. This is the type of se defendendo case contemplated by Blackstone. Yet the court never discussed retreat. Perhaps the court did not address retreat because it had clearly occurred in this case. Soon other states were presented with opportunities to shape the law of self-defense as the nation expanded westward. In 1847, Alabama took an opposite position from the other states and found that retreat was required. In 1876, Ohio visited the issue in Erwin v. State, a case of first impression. The court conceded that the issue of retreat was in a state of confusion. In its opinion the court discussed each of the learned commentators of the common law: Coke, Hale, Foster, and East, and also considered the Selfridge case. The Erwin court held that the defendant had no duty to retreat because a “true man, who is without fault, is not obliged to fly from an assailant.” A close reading of Justice McIlvaine's analysis reveals the mistake in interpretation of the law of self-defense. McIlvaine acknowledges that several commentators on the law had conflicting views of the doctrines related to homicide. He does note that there are two types of self-defense. If one killed an assailant while trying to repel a felonious assault, then the killing is justified self-defense. If the killing occurred by any other means it is excusable. The outcome would be the same for either justifiable or excusable self-defense: an acquittal. However, he believed that the distinction between the two should be maintained so that juries could understand what type of evidence was required to prove each one. No retreat was necessary in the justifiable self-defense case, but retreat was required in the excusable self-defense case. If the defendant failed to retreat when required to do so, then he could not rely on self-defense. At this juncture, retreating before applying deadly force was still a requirement in se defendendo cases.

In 1877, the Supreme Court of Indiana addressed the issue in Runyan v. State. The Runyan court determined that the issue of retreat was insignificant in this case because the defendant“was already standing practically against a wall...” when he was assailed. The issue before the court was whether defendant “had reason to believe” that his use of deadly force was necessary to save his life or to protect him from great bodily harm, thus invoking Edward East's reasonableness philosophy. Retreat is one issue, but the necessity of applying deadly force is another. The two must be decided separately. It seems that this further inquiry is what Blackstone meant when he rejected killing with impunity in the name of self-defense.

Even so, the Runyan court reached a different result when it modified the retreat element of self-defense. In so doing, it expanded a doctrine which Blackstone intended to limit. The court examined the other states' resolution of the retreat doctrine and found that the American version diverged from the English common law rule. This influenced the Indiana Supreme Court as it considered the issue. The court announced that the retreat doctrine had been “greatly modified” in this country. Taking its cue from the Erwin court's aversion to flight of a “true man,” the Indiana court stated in dicta: “[T] he tendency in the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed, to avoid chastisement or even to save human life, and that tendency is well illustrated by the recent decisions of our courts, bearing on the general right of self defence.” Because the defendant was nowhere near his home, but rather was in the street at the time, the court sanctioned the “stand your ground anywhere you have a right to be” doctrine. The court expanded the doctrine of self-defense to permit one to stand his ground without an attempt to retreat so long as he is in a place where he has a right to be. This change in the self-defense doctrine was attributed to the rugged nature of frontier life and the need of settlers to protect themselves. The idea of retreating in the face of an assault was odiousto the American ego. It is this concept that has survived and is being advanced in the most recent considerations of self-defense law.

In the 1890s, the United States Supreme Court entered the discussion and two distinct schools of thought developed. One school required retreat in the face of a deadly assault, while the other stated that there was no duty to retreat. Two cases, Beard v. United States and Allen v. United States, lie at the base of the two schools of thought. Beard was decided on the ground that the defendant was on his own premises at the time of the attack and should not be required to retreat from a place where he had a right to be— his home. The court stated that it could not agree that the accused was under any greater obligation when on his own premises, near his dwelling house, to retreat or run away from his assailant, than he would have been if attacked within his dwelling house. The accused being where he had a right to be, on his own premises, constituting a part of his residence and home, at the time the deceased approached him in a threatening manner he was not obliged to retreat. This argument is an offshoot of the “Castle Doctrine” which states a “[m]an's house [is] his castle.” In Beard, the Court expanded the castle doctrine, which permitted a person to kill inside the home without retreating, to include the outside area around or near the home. Allen, decided just two years later by the same court, stated that a defendant had to retreat before applying deadly force. On the surface, the cases appear to contradict each other, so much so, that one commentator claimed that Allen had “in fact overrul[ed]” Beard. However, the cases can be reconciled if one considers the situs of the attack and the killing. In Allen, the defendant was not on his own property at the time of the attack, but was in a public place. There, the court expressly states that there is no disharmony between the rulings in the two cases and further states that the determination of whether one had to retreat turned on the location of the assault. If it occurred at the defendant's home, he was where he had a right to be, and therefore, could stand his ground. On the other hand, if the assault occurred in a public place, then the defendant had a duty to retreat. These cases left many jurisdictions divided on the issue of whether retreat was required. After these cases were decided in the late nineteenth century, the next significant Supreme Court ruling on the issue of retreat was in Brown v. United States. One commentator wrote that “[t]he opinion cannot fail to have a profound influence on the law of self-defense, the duty of retreat and the right to stand one's ground.” Justice Oliver Wendell Holmes, Jr. wrote the opinion of the court. The issue, as he framed it, was “whether the formula laid down by the Court and often repeated by the ancient law is adequate to the protection of the defendant's rights.” Holmes reasoned that the failure to retreat is not proof of guilt, but rather is a circumstance to be considered with all others in determining whether the defendant went farther than what he was justified in doing. He stated, “The law has grown, and even if historical mistakes have contributed to its growth it has tended in the direction of rules consistent with human nature.” This statement is a reflection of a premise espoused in his work, The Common Law. He settled the issue, finding that there was no duty to retreat. His statement, “Detached reflection cannot be demanded in the presence of an uplifted knife” captures both the issue and the answer.

However, factually speaking, the defendant in Brown was in the same position as Allen, not on his own property. In addition, if the Supreme Court were to be consistent in its ruling, it had to make the duty not to retreat hinge on standing in one's dwelling or on one's own property. Holmes admits that the distinction was relevant to the Beard court. But he adroitly avoids the difficulty by simply stating that

those facts would not have bettered the defence by the old common law and were not appreciably more favorable than that the defendant here was at a place where he was called to be, in discharge of his duty.

If one was in public, then a duty to retreat existed. State courts failed to view the doctrine this way because the Beard court failed to be clear that the distinction rested on the fact that Beard was “where he had a right to be,” and that this language meant that Beard was at home. By extending the castle doctrine to the curtilage, he would have no duty to retreat. Although the court seemed to clarify the issue in Allen when it pointed out the distinction between the rulings, other courts disregarded this rationale. Now we have a general statement that we may stand our ground “anywhere” we have a right to be and, thus, another expansion of the castle doctrine was established.III. The National Rifle Association and the Doctrine of Self-Defense

“I am 4-foot-11. I‘m 67 years old. If you came at me, and I felt like my life was in danger or that I was going to be injured, I wouldn't hesitate to shoot you.”

Since the spring of 2005, several states have amended or have considered amending their laws on self-defense. What was the impetus behind the flurry of national legislative activity? It was the NRA, with the express goal of balancing the scales betweenthe criminals and the victims. The question arises what happened or is happening in these states to necessitate the abrupt change in the retreat doctrine? Was there a sudden spike in violent crimes involving innocent citizens? The answer is no. In fact, statistics point to the exact opposite. According to the Department of Justice, the violent crime rates have declined since 1994, and reached its lowest level ever in 2005. Furthermore, in Alabama, murders were well below the highest the state had recorded in 1994. Yet, at a time when the violent crime rates were down, the NRA began sweeping across the nation, promoting “stand your ground” laws. In this section, I will examine some of the laws that have passed with the NRA backing, and review pending legislation.

For purposes of this discussion, the states that have considered the issue have been separated into three groups: a) states that radically changed their self-defense laws; b) states that moderately amended their laws; and c) states that rejected proposed changes to their self-defense laws. I shall address each group in turn.

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