Stand Your Ground Versus Duty to Retreat, Compared Rule by Rule

Picture a man attacked on a sidewalk by someone with a knife. In some states the law says that before he defends himself, he must check whether he can safely get away. Think about what that sentence asks. It asks a person who is being attacked, who has perhaps two seconds, to run a mental map of exits, estimate the speed of the assailant, forecast whether retreat is "completely safe," and then, if he guesses wrong, to explain his guess to a jury that has all the time in the world.

That is the duty to retreat. This post compares it with its alternatives, rule by rule, and argues that the stand-your-ground side has the better of the argument. I will define the terms, build the comparison, state the critics' best case, and answer it.

Three systems, defined

States answer one question differently: when a person is attacked in a place he has a right to be and reasonably fears death or great bodily harm, must he retreat before using deadly force?

Duty to retreat. A person may use deadly force in self-defense only if he cannot avoid the danger by retreating in complete safety. Many such states except the home, and some except the workplace.

Castle-only. The duty to retreat applies in public places, but not inside the home, where the castle doctrine removes it. This is the traditional rule in many retreat states. The history is in A Man's House Is His Castle, and the Castle Doctrine Is Older Than America.

Stand your ground. A person who is not engaged in criminal activity and is in a place he has a right to be has no duty to retreat before using force he reasonably believes necessary to prevent death or great bodily harm. The "castle" extends to wherever the person lawfully stands.

Notice what stand your ground does not do. It does not permit force against someone who merely insults you, or shoves you, or threatens you with words. The requirement of a reasonable fear of death or serious injury survives. The statutes remove the duty to flee. They keep the requirement of danger.

The Model Penal Code and the retreat rule

The American Law Institute's Model Penal Code, drafted in the 1950s and published in 1962 as a model for state reform of criminal law, is the standard source for the retreat rule. Section 3.04 makes deadly force unjustifiable when the actor "knows that he can avoid the necessity of using such force with complete safety by retreating." It then lists exceptions: the actor is not required to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by a co-worker.

I quote the Code first because it is the best version of the other side. Its drafters were serious scholars and no one's idea of an opponent of civil liberties. Their reasoning was that the sanctity of life counsels against killing when escape is available, and that the law should not value a man's pride above another man's life. It is a respectable argument. It is also an argument with a built-in problem, which the rest of this post addresses.

Florida, 2005, and what followed

The modern wave of stand-your-ground statutes began with Florida in 2005. The legislature passed, and the governor signed, a law that took effect that October. It provided that a person who is not engaged in unlawful activity and is attacked in any place where he has a right to be has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force, if he reasonably believes it necessary to prevent death or great bodily harm or the commission of a forcible felony. It also created a presumption of reasonable fear for those who use force against someone unlawfully and forcibly entering a home or occupied vehicle, and it provided immunity from criminal prosecution and civil suit for those who meet the statute's conditions.

Other states passed their own versions in the years that followed. Texas, Georgia and Kentucky are among the states that adopted stand-your-ground or similar statutes in the years that followed, and the details differ: some limit the rule to places where the person has a right to be, some require that the defender not be the aggressor, and some provide the presumption and the immunity and some do not. Anyone who tells you "stand your ground" is a single national rule has not read the statutes. It is a family of laws.

The reader should also know that a number of state supreme courts and legislatures had reached the same position long before 2005 without a statute. The no-retreat rule was the majority common-law position in many American states in the nineteenth century, adopted by courts in the West and the South and endorsed by the U.S. Supreme Court in Beard v. United States (1895) and Brown v. United States (1921). Stand-your-ground statutes did not invent the rule. They restored it where retreat doctrines had spread.

The comparison table

Here is a rule-by-rule comparison of the three systems.

Two notes on the table. First, the last row varies by state. Florida, for example, changed its pretrial immunity procedure in 2017 to put the burden on the prosecution, which we discuss in What Happens Legally After You Defend Yourself, Twelve Questions. Second, the retreat states and castle-only states differ in many details I have compressed. Check your own statute before relying on a summary, including this one.

What each system suits

A fair comparison says what each system serves.

The duty to retreat suits a legislature whose first priority is minimizing the number of deaths in confrontations and which trusts a jury to assess, after the fact, whether a safe retreat existed. Its principal weakness is the second-guessing: the defender is judged by a standard that depends on a calm reconstruction.

Castle-only suits a legislature that wants a middle position, protecting the home absolutely while keeping a retreat rule in public. Its weakness is the inconsistent line it draws. The same attacker, at the same moment, is lawfully resisted on the porch and not on the sidewalk.

Stand your ground suits a legislature that holds that the law-abiding person need not yield the public square to the violent. Its weakness, according to critics, is that it can be abused. I will take up that criticism in a moment.

The argument for standing your ground

Here is the argument in numbered premises.

1. The aggressor, not the victim, creates the necessity. The person who attacks starts the confrontation. A rule that obliges the victim to leave transfers a cost from the wrongdoer to the innocent. The law should not ask the innocent to surrender his lawful place so the aggressor can have his way.
2. Retreat is judged in hindsight by people who were not there. Justice Holmes made the point in Brown v. United States in 1921. Writing for the Court about a man attacked with a knife, he said: "Detached reflection cannot be demanded in the presence of an uplifted knife." He added that failure to retreat is one circumstance to weigh with all the others, not a categorical proof of guilt. A rule that requires a flawless judgment of safe escape, in seconds, is a rule that will convict people for wrong guesses.
3. Retreat is not always safe, and the attacker will not tell you. Turning your back on a man who is armed can invite the attack. The duty's "complete safety" requirement sounds precise, but safety is a prediction, not a fact.
4. The law should not create a duty that benefits criminals. If the legal system tells a would-be attacker that his victim must try to flee before resisting, the attacker has gained a legal advantage over the person he is attacking.
5. The rule matches moral intuition. Most people believe that a person under attack has a right to defend himself and to stay where he is. The duty to retreat is a legal construct that departs from that intuition, and it applies only to those who are not criminals.

That, in the argument's own terms, is the whole case. The strength of this argument is that it rests on a principle, the right of the innocent to defend himself, and not on a number. The principle is old. We trace its roots in What Jewish and Christian teaching says about defending your own life.

The critics' best case, stated fairly

The critics make two claims.

The first is empirical. They say stand-your-ground laws increase homicides. A frequently cited study by economists Cheng and Hoekstra, published in the Journal of Human Resources in 2013, examined states that strengthened self-defense laws and found no evidence of deterrence of crimes such as burglary and robbery and an increase in homicides of roughly eight percent in those states. Other researchers have reported similar findings in particular states, including studies of Florida's experience. The critics add that the law's expanded immunity can make it harder to prosecute cases in which the shooter was not truly in danger, and that disparities in who benefits have been argued in several studies.

The second claim is moral. They say a society that values life should prefer a safe retreat to a killing, and that "standing your ground" encourages escalation, particularly among strangers with guns.

I take both seriously, which is the point of stating them at full strength.

The answer to the critics

On the empirical claim, note several things.

1. The research is contested. Studies in this area face the problem that the category "homicide" includes both murders and justified killings, and that the data on justifiable homicide are collected unevenly. An increase in recorded homicide does not by itself show an increase in unjustified killing. Other studies report different results, and the honest summary is that the question is unsettled. Anyone claiming certainty on either side is selling something.
2. The deterrence question is separate from the justice question. Even if the laws neither reduce crime nor lower homicide, that would not show they are unjust. The question the statute answers is who bears the burden of the aggressor's choice. A law can be justified by justice before it is justified by statistics.
3. A rule that removes the duty to retreat does not remove the requirement of reasonableness. The shooter still needs a reasonable belief that he faces death or great bodily harm. Defendants who claim the statute still have to persuade a court or jury that the fear was reasonable, so the defense is not a blank check. A statute that grants too broad an immunity can be tightened by the legislature, and a few states have debated just that.
4. The famous cases do not prove the point. The public's picture of stand-your-ground was shaped by high-profile shootings, including the 2012 killing of Trayvon Martin in Sanford, Florida. In that case the defendant's team relied on ordinary self-defense at trial and the jury acquitted him in 2013. It is not a clean example of the law at work, and it is not evidence of what the statute does in ordinary cases. A law should not be judged by the single case that made it famous.

On the moral claim: the question is who is morally responsible for the confrontation. The person who stands where he has a right to stand and is attacked has not escalated anything. The attacker did. If a society wants fewer deadly encounters, it should punish the attack, not the defense.

The Founding angle

The question has a Founding answer. The Declaration of Independence lists "Life, Liberty and the pursuit of Happiness" as unalienable rights. A right to life that dissolves the moment a person is in the street is a thin right. The framers of state constitutions, from Pennsylvania's 1776 declaration of rights to Vermont's, included the right of defending life and liberty among the inherent rights of mankind. A rule that treats the defender as the party with the duty is hard to square with that tradition.

That does not mean the legislature has no role. Self-defense is a field of state law, and the people of each state decide how to draw its lines. A conservative who believes in federalism should be willing to let Vermont and Florida differ. The argument I am making is for what the people of a state should choose, not for what Washington should impose.

The case in brief

1. States differ on retreat: duty-to-retreat states require a safe retreat in public, castle-only states relieve the duty at home, and stand-your-ground states remove it wherever the defender lawfully stands.
2. The Model Penal Code's section 3.04 reflects the retreat rule with a home exception, and the Florida law of 2005 launched the modern wave of stand-your-ground statutes.
3. The aggressor creates the necessity, and a rule that forces the victim to guess safe exits in seconds, judged in hindsight, ignores Justice Holmes's observation that "Detached reflection cannot be demanded in the presence of an uplifted knife."
4. The critics' empirical claims are serious but contested, and their moral claim places the burden on the wrong party.
5. The right to life that the Declaration names should not disappear at the door of the house.

What you can do: look up your state's self-defense statute on its legislature's website, note whether it imposes a duty to retreat, and write your state legislator with your view.