All states in our nation have laws in place to permit certain types of self-defense when an individual feels threatened. But these laws vary widely from state to state, particularly when the self-defense in question involves a firearm or other method of lethal force. While some states have enacted “stand your ground” laws, broadly allowing the use of deadly force to defend oneself, “duty to retreat” states require an individual to retreat to a safe place instead of fighting back.
Stand Your Ground
Florida made news as the first state to pass the so-called “Stand Your Ground” law in 2005. Since then, Floridians can defend themselves using lethal force. They are not required to try to escape from harm, and they can defend themselves in any geographic location; they do not have to be on their personal property. A similar law, known as the “Castle Doctrine”, also allows the use of deadly force for self-defense, but only if the individual is in his/her own home or property.
Stand your ground laws do have some restrictions, however. The individual using deadly force as a means of self-defense must be under a reasonable threat of harm, and the force used must be proportional to that threat. For example, if someone approaches Bill in a dark alley and says, “Hey, I don’t like you, and I’m going to come to your house and beat you up when you least expect it,” stand your ground laws do not give Bill the green light to pull out a gun and shoot the guy on the spot. For starters, Bill is not immediately in harm’s way. Furthermore, using deadly force is not proportionate to the threat of being “beaten up.”
Another requirement of stand your ground laws in certain states is that the person using deadly force to defend himself/herself is legally at the location at which the encounter occurs. For example, if the person is trespassing on another’s property, he/she may not be protected by stand your ground laws. And in most states, the person using self-defense must not have initiated the altercation.
As stated above, stand your ground laws vary from state to state, but states that currently have some form of stand your ground law include:
- New Hampshire
- North Carolina
- South Carolina
- South Dakota
- West Virginia
It is important to note that some states have stand your ground-like doctrines but are not included on the list above. An experienced defense attorney can help you determine if your actions of self-defense are legally protected by your state’s laws.
Duty to Retreat
In states that legally impose the duty to retreat, the use of lethal force to defend yourself is typically only allowed as a last resort of extreme necessity. In layman’s terms, if you can avoid the risk of serious harm or death, you are not permitted to use deadly force to defend yourself. If, however, you were unable to escape a situation in which you had a reasonable fear of serious harm, you would be allowed to defend yourself, even by use of lethal force. Proving that you could not escape harm’s way, however, is not always an easy task. This is where the help of a skilled defense attorney can make all the difference in the world.
Keep in mind, however, that if an intruder is in your home, you do not have a duty to retreat. This is true even if you live in a duty to retreat state. Every state follows some version of the castle doctrine when it comes to home intruders.
According to Ian N. Friedman, Esq. of Cleveland-based Friedman & Nemecek, L.L.C., we are seeing a trend across the country correctly placing the entire burden of proof properly on the states.
“Historically, defendants were saddled with the burden of establishing that they acted in self-defense and were unable to retreat to avoid the ultimate defensive action,” said Friedman. “This affirmative defense was inherently unfair as no person who is presumed innocent should then be tasked with establishing their innocence. With the passage of new laws, such as ‘Stand Your Ground’, the states now have to prove that a defendant was not acting in self-defense. One of the great pillars of our criminal justice system has always been that a person is innocent until proven guilty. ‘Stand Your Ground’ laws are better aligned with this principle.”
Contact a Stand Your Ground Defense Attorney Today
If you used deadly force to defend yourself and are now facing criminal charges, it is in your best interest to consult with an experienced stand your ground defense attorney today. Do not let your legal right to self-defense result in jail time and a criminal record. This is a very nuanced and constantly-evolving area of the law, and the help of an attorney with extensive experience in stand your ground and duty to retreat laws is essential to a favorable outcome. Contact a skilled defense lawyer today.