search
top

Duty to Retreat in Common Law

With the Castle Doctrine having been heard by the Judiciary Committee yesterday, the media is starting to report on it. In the video linked here, you can see statements from John Hohenwarter, the NRA State Liaison for Pennsylvania, and Dan Pehrson, President of Pennsylvania Firearms Owners Association, as well as some of our opponents, who are against this change in the law.

But it’s really not so much of a change from the traditions of common law. In fact, to a large degree, it restores the common law concept of self-defense. If you go back to the authoritative source on the Common Law, Blackstone’s Commentaries on the Laws of England, you can find the common law source for many of the concepts enshrined in the proposed Castle Doctrine law:

Burglary, or nocturnal housebreaking, [...] has always been looked upon as a very heinous offense: not only because of the abundant terror that it naturally carries with it, but also as it is a forcible invasion and disturbance of that right of habitation, which every individual might acquire even in a state of nature; and invasion, which in such a state, would surely be punished with death, unless the assailant were the stronger [...] And the law of England has so particular and tender a regard to the immunity of a man’s house, that it stiles it his castle, and will never suffer it to be violated with impunity[.]

Emphasis mine. You will certainly find no duty to retreat there. A homeowner could “kill the assailant with impunity” for the offense of burglary under common law. So where did the duty to retreat come into play? You can find that in Book 4, Chapter 14 of Blackstone’s Commentaries. The Common Law Blackstone describes divides homicide into three types, “justifiable, excusable, and felonious.” In the realm of justifiable homicide, Blackstone speaks of “advancement of public justice” in the following context:

In the next place, such homicide, as is committed for the prevention of any forcible and atrocious crime, is justifiable by the law of nature; and also by the law of England, as it stood so early as the time of Bracton, and as it since declared by statue 24 Hen VIII. c. 5. If any person attempt to burn it, and shall be killed in such an attempt, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force, as picking of pockets, or to the breaking open of any house in the time of day, unless it carries with it an attempt of robbery also.

Under common law, a citizen had a justification for committing homicide in order to stop a forcible felony. There was no duty to retreat here. It was, in fact, considered a civic duty for a citizen to stop felonies from being committed. We don’t get to a duty to retreat until we get to Blackstone’s commentary on self-defense, which under common law is not a justifiable homicide, but an excusable homicide. Blackstone notes that common law makes a distinction between these two.

Homicide in self-defense, or se defended, upon a sudden affray, is also excusable rather than justifiable, by the English law. This species of self-defense must be distinguished from that just now mentioned, as calculated to hinder the perpetration of a capital crime; which is not only a matter of excuse, but of justification. But the self-defense, which we are now speaking of, is that whereby a man may protect himself from an assault, or the like, in the course of a sudden brawl or quarrel, by killing him who assault him [...] They cannot therefore legally exercise this right of preventive defense, but in sudden and violent cases; when certain and immediate suffering would be the consequence of waiting for the assistance of the law. Wherefore, to excuse homicide by the plea of self-defense, it must appear that the slayer had no other possible means of escaping from his assailant.

Emphasis mine. It is here you can see the common law origins of the Duty to Retreat. But notice this only applies to “sudden affray” or “sudden brawl” with someone who was otherwise not feloniously attacking a person. Blackstone implies there’s an element of the defender having been a willing participant in the “quarrel” or “affray.” When states started to codify common law into statutes, many erroneously adopted this aspect of common law for all justifiable homicides, even ones which were meant to prevent felony. Most state statutes on self-defense no longer make any distinction between justifiable and excusable homicide, though there are many states that allow for the use of deadly force to prevent commission of a forcible felony. Pennsylvania was one of the states that codified common law improperly, and created a duty to retreat in the face of felonious assault. Castle Doctrine is not really a radical change from the Common Law, but a restoration of it.

8 Responses to “Duty to Retreat in Common Law”

  1. Rob K says:

    The castle doctrine goes all the way back to the time of the Exodus. Exodus 22:2-3 “If the thief is caught while breaking in and is struck so that he dies, there will be no bloodguiltiness on his account. (3) “But if the sun has risen on him, there will be bloodguiltiness on his account. He shall surely make restitution; if he owns nothing, then he shall be sold for his theft.”

    That’s pretty much what Blackstone states.

  2. Sebastian says:

    Someone should send that to Heeding God’s Call.

  3. Laci the Dog says:

    OK, remember that Blackstone only a commentator on the laws of England. He is a textbook, not the law. You cannot call a textbook the “authoritative source on the Common Law”.

    US Courts tend to like Blackstone as a concept of the state of the Common Law at the time of the Revolution, but it is not definitive. It is the rough equivalent of a Reader’s Digest Guide to the Laws of England.

    In fact, you will find that there was no agreement on the right of self-defence between the US and England.

    Wouldn’t you expect that a group of soldiers who were attacked by an angry mob would have a right to defend themselves rather than stand trial for murder? How about officials who were attacked by mobs while performing their official duties: wouldn’t they have a right to self-defence?

    Sorry, but the British Soldiers in Boston were tried for the Boston Massacre and the Tax collectors who were tarred and feathered were just SOL..

    If you take the actual British Common law tradition, you end up with situations like Munir Hussein and Tony Martin.

    So, I would personally, as do most British lawyers, look to Blackstone as a historical curiousity, but it is far from being an “authoritative source on the Common Law”.

  4. Laci the Dog says:

    Duty to retreat refers to self-defence and not defence of the home.

    One does not have a duty to retreat within the home.

    Also, did you actually read the Commentaries or just copy out certain sections? I ask because I am being lazy in not pulling out my copy of it.

    Actually, at common law, there was no duty to stop someone from performing a crime. At common law, a private person may lawfully make an arrest for any felony committed in his presence, or for a misdemeanor that constitutes a breach of the peace (Restatement of Torts, 2d ed., sec 119; Dressler, p. 251). A private person can also make an arrest for a felony, even if not committed in his presence, if the felony has been committed and he has probable cause to believe that the person arrested committed it.

    Got that “may”.

    Police have more latitude in their powers to fight crime than do private citizens. For example, you can be sued if you make a mistake, but the police officer has some immunity.

    Even then, a police officer can be sued if they use excessive force or act illegally.

  5. Sebastian says:

    US Courts tend to like Blackstone as a concept of the state of the Common Law at the time of the Revolution, but it is not definitive. It is the rough equivalent of a Reader’s Digest Guide to the Laws of England.

    I am aware of that, and I am not suggesting it is the law now. But the context of this post was the constant appeals being made in the media to desecrating traditional common law, which does not paint the entire picture.

    Only a handful of states, that I’m aware of, still have common law self-defense. Most states self-defense laws are statutory laws. My assertion is that castle doctrine is not out of line with common law traditions on self-defense, and I’m using Blackstone as an example.

    Wouldn’t you expect that a group of soldiers who were attacked by an angry mob would have a right to defend themselves rather than stand trial for murder? How about officials who were attacked by mobs while performing their official duties: wouldn’t they have a right to self-defence?

    Sorry, but the British Soldiers in Boston were tried for the Boston Massacre and the Tax collectors who were tarred and feathered were just SOL..

    They were tried, were defended by John Adams, and acquitted by a New England jury. They were engaging in self-defense. That was the law here as well as England.

    If you take the actual British Common law tradition, you end up with situations like Munir Hussein and Tony Martin.

    Yes, because Britain (fairly sure, but not certain) has largely replaced common law with statutory law when it comes to self-defense, just like most US jurisdictions. It’s perfectly reasonable to argue that the common law was wrong, and what’s replaced it is better, but historical common law, which I am speaking of here, allowed such things. Even I wouldn’t argue for a straight adoption of the common law as it existed in Blackstone’s time, but to say what we’re seeing with castle doctrine is radical and new is preposterous, yet the claim is repeatedly made.

    So, I would personally, as do most British lawyers, look to Blackstone as a historical curiousity, but it is far from being an “authoritative source on the Common Law”.

    Blackstone was always taken more seriously in the United States than he was in England, probably due to the lack of extensive law libraries in the former. Nonetheless, I’ll take Blackstone is reasonably authoritative on the common law at the time he wrote it, as I will St. George Tucker’s edition with commentary on American adaptation for American law at the time.

  6. Sebastian says:

    One does not have a duty to retreat within the home.

    As a practical matter, this is probably true, but the statute is written ambiguously.

    (2) The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:
    (i) the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or
    (ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:
    (A) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and

    I don’t have a duty to retreat from my home, but do I have a duty to retreat within my home? Most lawyers on the matter have advised me that you do, though as a practical matter those types of cases aren’t really prosecuted. Either way, it doesn’t seem to me to be a big deal to change the law to reflect practice. Castle Doctrine for PA does a bit more than that, such as expanding it to vehicles and attached structures to a dwelling, but it’s not a radical change in the law, and certainly not a departure from what the common law traditionally was. The bigger change is the elimination of duty to retreat on the streets, which was present in common law, but under common law you could kill someone committing a forcible felony as well, and that aspect was never brought over into the statutory law.

  7. Sebastian says:

    On the matter of public duty, I don’t believe Blackstone was saying it was a legal duty, but a moral one. He spoke in that kind of language when it came to justifiable homicide, IIRC.

  8. Laci the Dog says:

    My criminal law professor said that you would get a medal pinned on you. Technically, you don’t have to retreat in your home. In PA, you can use deadly force, but I would make sure someone dialed, or was dialing 911.

    Personally, I would stand at the door with a gun. I would be in my bedroom.

    Although, my experience is that they probably will leave if they know someone is there. Even more so if the person is armed. Most home invasions are in the city. But, home invasion is so heinous that you are safe in the USA.

    Not true in the UK as the two cases I mentioned show up.

    Actually, I was talking about common law. Blackstone was lecture notes and not really definitive. He was very popular in the US, although controversial. About like using Micheal Bellesiles since he was intepreted as being against the Independence movement.

    Blackstone was very strong on the rule of law, which was where Jeremy Bentham’s criticims of him arose.

top