Monday, May 25, 2020


Article Index

C. States which rejected proposed change to self-defense law

“Sometimes retreat really is the best reaction.”

Alaska and Arkansas retained the duty to retreat before resorting to deadly force where it can be done with complete safety. Both retained the Castle Doctrine but expanded it moderately. Alaska provides protection at one's place of business; Arkansas does not, but extends its Castle Doctrine to the curtilage of the property.

1. Arkansas

Arkansas is one of the states that adhered to the retreat doctrine. However, in the 2007 session, the Arkansas Legislature considered abrogating the retreat doctrine in favor of a “stand your ground” doctrine. This proposed senate bill was amended to delete the proposed “stand your ground” change, and the amendment retained the requirement to retreat. Yet, the amendment did not limit the Castle Doctrine exception to retreat to the dwelling only, but extended it to the curtilage of the property. Meanwhile, the house had proposed a bill which would have been known as the “Stand Your Ground Law.” It would have removed the duty to retreat, created presumptions regarding the use of deadly force, and granted civil immunity to one who used deadly force. It appears that legislators had questions about the constitutionality of the Florida law because one representative requested and received an opinion from the Arkansas Attorney General. Even though the attorney general opined that Florida's statute creating presumptions, authorizing use of deadly force, and granting immunities was not offensive to either the Arkansas constitution or the United States Constitution, the Arkansas Legislature resisted the urge to abolish the retreat rule and rejected Florida's lead of creating presumptions and granting immunity to individuals who kill in self-defense. Arkansas's amendment extending the Castle Doctrine to include the curtilage is in line with Beard v. United States. There, the Court stated that because the “defendant was where he had a right to be,” there was no duty to retreat. The facts of the case indicate that the defendant was standing on the property where his home was located. The defendant was fifty to sixty yards from his house. Therefore, when the Court stated that the defendant did not have to retreat because he was where he had a right to be, it meant that because the defendant was at home, he did not have to retreat. The Court extended the Castle Doctrine exception to the premises, but no further. The line of cases following Beard and adopting the “stand your ground” doctrine when one was where he had a right to be failed to make the distinction. This failure has led to a misapplication and expansion of the rule beyond its intended boundaries. In many states recent legislative changes to self-defense laws include “any place” where a person may be, not limited to the house or home. Arkansas has expressly kept the exception to the duty to retreat rule to the limited situation by maintaining a connection to the home. To avoid any confusion and to exclude the streets, the proposed amendment defines curtilage. Other states facing this issue should follow Arkansas, rather than Florida or Alabama.

D. States which have legislation pending

Seven states considering a change to their self-defense laws have bills pending. They are Colorado, Minnesota, Ohio, West Virginia, Maryland, New Mexico, and Pennsylvania.