Concept
Exceptions to the Retreat Duty
Self-defense and justifiable homicide
Exceptions to the Retreat Duty
The retreat duty applies only in a jurisdiction that imposes one, and even there it gives way in several settings. Those settings are the home (and, under the Model Penal Code, the place of work), a lawful arrest, and a robbery in progress. Each exception marks a place where the premise behind the retreat rule gives out. The rule prefers a safe step away to a killing, and that preference only makes sense when walking away is a real and costless option. In a home there is no better place to go, in a lawful arrest walking away would mean abandoning a task the law requires, and in a robbery the safety of flight cannot be assumed. Because these exceptions modify a retreat duty, they matter only in retreat jurisdictions and under the Code. In a no-retreat jurisdiction the defender never owed a retreat, so there is nothing for an exception to remove. The home receives the most attention below, followed by the two limits that qualify it, and then the arrest and robbery exceptions, which are shorter.
The Home Exception
A person attacked in his or her own home has no duty to retreat, and this home exception operates even in a jurisdiction that requires retreat everywhere else.1 The Model Penal Code states the same exception and widens it, providing that the actor is not obliged to retreat from his dwelling or place of work, subject to two limits taken up in the next part.2 The exception removes only the retreat condition. A resident who uses deadly force must still believe that deadly force is necessary against a qualifying threat, but need not show that no safe way out was available. A claim made in the home therefore skips one question in the analysis and keeps all the others.
The reason follows from what the retreat rule assumes. A retreat jurisdiction requires flight because killing is unnecessary when the danger can be ended by walking away at no cost to the defender. A home changes that assumption in two ways. The exits from a dwelling lead out of the one place where the defender has the strongest right to be, so retreat means handing the house to the attacker. The retreats available inside, such as a bedroom or a stairwell, usually leave the defender in a smaller space the attacker can follow into. Deciding which of these options is completely safe is also the judgment that the earlier discussion of complete safety showed to be least dependable in the seconds of an attack. Requiring a resident to make it, on pain of losing the defense, would turn a costless step into a gamble with the resident's life.
The two versions differ only in where the attack occurs, and that fact alone decides whether the known safe exit matters. Students lose this issue when they let a known safe exit control a home case, because the exception takes that exit out of the analysis. The workplace is the Code's addition to the common-law formulation above. An answer in a common-law retreat jurisdiction should therefore rest on the home, while an answer under the Code may rest on either the home or the place of work, since a workplace shares the features that support the home rule: the defender has a lawful claim to be there and cannot readily leave it in the middle of an attack.3
Co-Occupants and Aggressors
Two limits qualify the home exception, and each restores the retreat condition by removing the feature that justified the exception in the first place. The first concerns the initial aggressor. Under the Code the exception does not protect an actor who was the initial aggressor.5 The exception exists to spare a resident who is attacked from having to give up the home, and a person who started the confrontation has no comparable claim to be spared. If the aggressor could invoke the home, anyone could provoke a fight indoors and then answer the escalation with deadly force without ever considering an exit. Whether an aggressor keeps any self-defense claim at all is governed by the aggressor rules covered earlier. This limit adds only that the home exception does not excuse the aggressor from the retreat condition.
The second limit concerns a shared space. Under the Code, the workplace exception is lost when the actor is assailed in his place of work by another person whose place of work the actor knows it to be.6 When the attacker works in the same place, the defender's claim to hold the ground is no better than the attacker's, and the encounter resembles one in a public place, where a retreat jurisdiction requires retreat. The limit also contains a knowledge element. A defender who does not know that the attacker works there, such as a stranger who has broken in, keeps the exception, while a defender who knows the attacker is a colleague loses it. Students overlook that this limit turns on what the actor knows about the attacker's workplace, which mirrors the knowledge element in the complete-safety condition.
The same text treats the dwelling differently. The co-worker limit is attached to the place of work, and the dwelling clause carries only the initial-aggressor limit, so by the Code's wording an actor assailed at home by a fellow resident has no retreat duty unless the actor was the initial aggressor.7 Outside the Code, decisions divide on whether a defender attacked at home by someone who also lives there must retreat. Courts that require retreat in that setting reason that both occupants have an equal right to the space, so the defender gives up nothing the attacker could not claim as well. Courts that reject the limit reason that no one should be driven from his or her own home by anyone, whether stranger or relative.
The two versions differ in a single fact, whether the actor knew the attacker also works there, and that fact moves the result from a claim unaffected by the open door to a claim defeated by it.
Lawful Arrests and Officers
A person who is making a lawful arrest has no duty to retreat from the arrestee's resistance, and the Code extends the point to public officers and to people assisting them, who need not desist from efforts to perform their duty. The reason is that the retreat duty treats flight as a free alternative to killing. For someone carrying out an arrest, flight is no such alternative, because walking away means abandoning a task the law requires or authorizes and leaving the arrestee free to go. The word lawful carries weight here. The exception protects the performance of a legal function, so it does not extend to a person who is making an unlawful arrest.
Robbery Situations
In a retreat jurisdiction, a person has no duty to retreat when the assailant is in the process of robbing him or her. The exception follows the same logic as the others. A robbery is a forcible demand in progress, so the victim faces someone who has already shown a readiness to use force and is positioned to follow the victim's movements. Flight means abandoning the property and turning away from that person, and the victim cannot reliably know in the moment that flight is completely safe. The same reasoning explains why handing over the property is not treated as the safe exit described by the Code's surrender clause, since a robber asserts no claim of right to what he demands.
The pair shows that the exception lasts only while the robbery is underway. Once the taking is over and the robber is leaving, the analysis returns to the immediacy of the threat, and the robbery exception offers the defender nothing.
The Home Exception
A person attacked in his or her own home has no duty to retreat, and this home exception operates even in a jurisdiction that requires retreat everywhere else.9 The Model Penal Code states the same exception and widens it, so that the actor is not obliged to retreat from his dwelling or place of work.10 The exception removes one condition on deadly force, the condition that the defender must not know of a completely safe way out. Every other part of the self-defense analysis stays in place, so a resident who uses deadly force must still believe it necessary against a qualifying threat. Students lose points when they read the exception as authorizing deadly force at home, since it removes only the retreat condition. Because it modifies a retreat duty, it matters only in a retreat jurisdiction or under the Code, and where no retreat is ever required there is nothing for it to remove.
The rule is old, and its best-known statement comes from People v. Tomlins. The defendant there claimed self-defense after an attack in his home by his son, and the court reversed his conviction because the jury had been given a duty-to-retreat instruction.11 Cardozo wrote that a man assailed in his own dwelling may stand his ground and "is under no duty to take to the fields and the highways, a fugitive from his own home."12 He traced the idea to Lord Chief Justice Hale, who reasoned more than two centuries earlier that a man attacked in his house need not flee as he would elsewhere, because flight would give the protection of the house to the adversary.13 The case also shows that the attacker's identity is not what drives the rule. The attacker in Tomlins was a member of the defendant's own family, and Cardozo said the rule is the same whether the attack comes from another occupant or from an intruder, a statement some courts have since declined to follow where the attacker lives in the home, as the next part explains.14
The reason for the exception follows from what the retreat rule assumes. A retreat jurisdiction requires flight because killing is unnecessary when the defender can end the danger by running away.15 That premise treats the exit as a costless alternative to force, and a dwelling undermines it in two ways. The first concerns the home as shelter: once a person has been forced out of the house there is nowhere left to go, so retreat means handing the house to the attacker.16 The second concerns the people inside, because requiring the defender to leave by the back door can expose family members to the attacker while the defender is gone.17 Against these interests stands the state's interest in preserving life, the same interest the retreat rule serves, and the home exception reflects a judgment that inside the dwelling the interests in shelter and family prevail.18
The basic application needs no burglar. In a standard illustration, D invites V to D's house, V becomes drunk and attacks D with a knife, V refuses to leave when asked, and V presses closer. D reasonably believes the only choices are to walk out the front door, which D is confident can be reached without being cut, or to shoot, and D shoots V in the leg. D has a self-defense claim even though a completely safe exit existed, because the attack took place in D's home, and that remains true in a jurisdiction that ordinarily requires retreat.19 V was an invited guest rather than a trespasser, which confirms that the rule follows the place of the attack and does not depend on the attacker having entered unlawfully.
The two scenes differ only in location, and that single fact decides whether the known exit matters. Because location carries the rule, courts must decide what counts as the home. In a New York decision applying that state's castle rule, the defendant stood in the doorway of his apartment, which opened onto a shared hallway, and struck a man who confronted him in the hall, killing him. The court held that he was entitled to a justification charge but not to an instruction that he had no duty to retreat, since he was not inside the apartment on any version of the evidence, and whether an area is part of a dwelling depends on the extent to which the defendant exercises exclusive possession and control over it.20 Other courts have drawn the line farther out and extended the exception to the curtilage, the yard immediately surrounding the dwelling, so the boundary varies by jurisdiction.21
Two limits qualify the exception under the Code, and the next part develops them. The exception does not protect an actor who was the initial aggressor, and the workplace version is lost when the actor is assailed at work by another person whose place of work the actor knows it to be.22 For the basic case of a defender without fault, attacked inside his or her own dwelling, the retreat question drops out of the analysis entirely.
Co-Occupants and Aggressors
The home exception lifts the retreat condition for a defender attacked in the dwelling, but two features of the encounter can restore it: who started the confrontation, and who the attacker is. The first limit is settled and follows from a plain principle about fault. The second is a genuine split among courts, with the Model Penal Code and the more modern decisions on one side. Each limit rests on a different idea about what the exception protects, so each is taken separately here.
The initial aggressor limit appears in the text of the Code, which excuses retreat from the dwelling only for an actor who was not the initial aggressor.24 Case law reaches the same place by reasoning from forfeiture. In Peterson, a District of Columbia decision, the court observed that an aggressor cannot claim self-defense for as long as he keeps that role, and that a no-retreat privilege is one of the incidents of the right of self-defense, so the person who provokes the conflict loses it along with the rest.25 The defendant there had fired from his own yard, but the court held that the castle doctrine can be invoked only by one without fault in bringing the conflict on, and no reading of the evidence made him blameless.26 New York's statute builds the same condition into its text, excusing retreat only when the defender is in his dwelling and was not the initial aggressor.27
The reason for this limit follows from what the exception is for. The home exception spares a resident from surrendering the dwelling to an attacker, and a person who began the confrontation has no comparable claim to be spared, since the danger he now faces is one he created. If an aggressor could invoke the exception, anyone could start a fight indoors, answer the predictable escalation with deadly force, and never have to consider the open door. Losing the exception does not by itself end the aggressor's defense. Whether he keeps any self-defense claim at all is governed by the aggressor rules covered earlier. This limit adds only that being at home does not excuse him from the retreat condition, so if he knows he can avoid the necessity of deadly force with complete safety by retreating, deadly force is not justified.28
The two versions differ only in who struck first, and that single fact decides whether the known exit matters.
The second limit concerns the attacker's identity, and here courts divide because they read the exception's purpose in two ways. If the exception protects the defender's refuge, it should apply against anyone, since a defender driven out of the home loses shelter no matter who did the driving. Tomlins reflects that reading: the attacker was the defendant's son, and the court said the rule is the same whether the attack comes from another occupant or from an intruder.29 If instead the exception exists to shield residents from outsiders, a shared home offers less justification, because the attacker has as much right to the space as the defender. Cooper v. United States takes that view. The defendant killed his brother in the apartment they shared with their mother, and the court refused a castle instruction, reasoning that co-occupants owe each other a heightened obligation of tolerance and respect that does not disappear when one of them attacks another.30 What separates the two decisions is the question each asks: Tomlins asks what the defender would lose by fleeing, while Cooper asks what the attacker is entitled to as a fellow resident.
The more modern view keeps the exception in place against a co-occupant. The prevailing position is that retreat is not required even when both parties live on the premises, and part of the reason is the difficulty battered spouses face in making a defense.31 The mechanism is easy to see. The retreat rule treats an exit as a cheap alternative to force, but for a defender in an abusive household, retreating inside a space the abuser shares can raise the danger rather than lower it. A standard illustration has a husband attacking his wife at home. She could retreat to a lockable bedroom but instead uses deadly force no greater than reasonably necessary, and most retreat jurisdictions give her the exception, though a few would impose the duty because the husband also lives there.32 The Code sides with the modern view for dwellings. Its text qualifies the dwelling exception only with the initial-aggressor limit, and its commentary imposes no retreat duty when the actor must defend against death or great bodily harm from a co-occupant of the dwelling.33 The Code does carve out a co-worker limit, but it attaches that limit to the place of work and leaves the dwelling clause alone.34
Because the law here is unsettled, a complete answer presents the split. Massachusetts and North Dakota, for example, have statutes that require retreat when the defender is attacked at home by someone with a legal right to be on the premises.35 Florida shows how unstable the area is. In Weiand v. State a wife shot her abusive husband in their home, and the state supreme court approved an instruction requiring retreat from a co-occupant within the home if possible, but not flight from the home. The legislature then repealed the general retreat requirement, which made Weiand irrelevant.36 Students lose points when they state a single rule for attacks by a fellow resident, because the accurate answer is a split with a modern lean toward keeping the exception. A related question arises when the defender is a temporary guest rather than the owner, and courts divide on whether a guest stands in the owner's shoes for the no-retreat rule.37
Lawful Arrests and Officers
The home exception is one setting in which the retreat condition drops away, and a lawful arrest is another. At common law a person has no duty to retreat when the attack occurs while he or she is making a lawful arrest.39 The Model Penal Code states the same lawful-arrest exception in wider terms. A public officer justified in using force in the performance of his duties, a person justified in using force in assisting that officer, and a person justified in using force in making an arrest or preventing an escape are not obliged to desist from the effort to perform the duty, effect the arrest, or prevent the escape because of resistance or threatened resistance by or on behalf of the person against whom the action is directed.40 The common-law rule is about arrests. The Code's version reaches officers carrying out their duties, the people who help them, and anyone preventing an escape, and it covers resistance offered by the suspect's allies as well as by the suspect.
The reason for the exception shows up when you ask what a retreat duty would do to an arrest. The retreat rule assumes that a defender who can end the danger by walking away has no need for force. For a person making an arrest, walking away does not end the danger. It ends the arrest, which is the task the arrester is there to perform. Resistance is also the most predictable response to being arrested, and the suspect decides whether to offer it. If a safe exit obliged the arrester to withdraw whenever the suspect resisted, any suspect could defeat any arrest by resisting, and the fiercer the resistance, the surer the escape. The exception therefore removes the suspect's power to turn resistance into a veto. The same logic appeared in the arrest-and-property section, where a public officer performing a duty was exempted from the claim-of-right limit. In both places, an actor with legal authority to proceed is not made to give way because the person on the other end pushes back.
Apply the Code's text to an officer who is lawfully arresting a suspect when the suspect pulls a knife. The officer need not back away and abandon the arrest before using necessary force, even if the officer knows a safe exit exists.41 What the exception removes is the retreat condition. A knife is a qualifying deadly threat, so the remaining self-defense analysis is satisfied if the officer believes deadly force is necessary to meet it.
The two scenes differ in one fact, the presence of an arrest, and that fact alone decides whether the known exit matters. Because the exception depends on that role, it is easy to over-read, and two limits keep it within its reason. First, the exception does not license any amount of force. It excuses only the duty to retreat or desist, so the arrester still needs a belief that the force used is necessary against a qualifying threat. Second, the exception follows the arrester's separate authority to use force and does not create it. The common-law rule speaks of a lawful arrest, and the Code protects only those who are justified in using force in the first place.42 The protection also attaches to the effort to perform the duty, effect the arrest, or prevent the escape, so a person who is no longer engaged in one of those efforts falls back under the ordinary retreat rule. This fits with the earlier limit on what a suspect may do against a known arrest, since the law does not let resistance on either side change who controls the encounter.
Robbery Situations
A robbery in progress is the last setting in which the retreat condition drops away. At common law a person has no duty to retreat when the assailant is in the process of robbing him or her.44 Robbery is a taking of property from a person by force or threat of force, so the victim is the target of an attack the robber chose to make, and the usual picture behind the retreat rule does not fit. That picture is a mutual quarrel in which either party could end the danger by walking away.
The reason for the exception comes from what the retreat rule assumes. The rule treats an available exit as a cheap substitute for force, and in a robbery the exit is not cheap. The robber has already used or threatened violence and has set the terms of the encounter, so turning to run gives an armed person a clear line at the victim's back, and the only other alternative is to hand over what the robber demands. A retreat duty would also reward the offense, because the robber's own threat would oblige the victim to flee and leave the property behind, while a victim who stood and resisted would risk prosecution for it. Excusing retreat removes that advantage from the person who created the danger.
A robber who aims a gun at a person sitting on a park bench and demands money is the clear case. The victim may be able to run, but need not retreat before responding with necessary force.45 The Model Penal Code reaches a similar result without a robbery clause. Its retreat condition applies only when the actor knows that deadly force can be avoided with complete safety by retreating, and the exceptions it lists cover the dwelling, the place of work, and officers and arresters.46 A robbery victim under the Code is therefore protected by the knowledge requirement itself. Someone facing a drawn weapon will rarely know that turning away is completely safe, and without that knowledge the retreat condition never comes into play.47
The pair differs in a single fact, and the exam usually turns on it. Students go wrong by treating any criminal attacker as a robber, when a robbery must actually be in progress for the exception to apply. A scuffle, an insult, or a threat made without any taking or demand does not qualify. Two further limits keep the exception small. It lifts only the retreat condition, so the defender must still satisfy the earlier requirements of a believed necessity of deadly force against a qualifying threat. It also attaches only while the robbery is under way, so once the robber has finished and is leaving, the threat that justified standing firm is over.