Our Florida Affiliated Attorney Steven M. Harris suggested that our online journal’s Attorney Question of the Month should explore various states’ statutes, caselaw and jury instructions about duty to retreat, noting that he was appalled by MN Supreme Court’s decision in State v. Blevins, No. A22-0432 (Sup. Ct. Minnesota, July 31, 2024) which, in part held, “In Minnesota, a person does not have an inherent right to stand their ground, and the public policy interests underlying the judicially created duty to retreat when reasonably possible include avoiding potentially deadly confrontations.”) See https://caselaw.findlaw.com/court/mn-supreme-court/116439787.html .
Harris asked:
Does a statute or caselaw in your state impose some generalized duty to avoid a dangerous person, place, or situation (as part of a duty to retreat or otherwise) before non-deadly or deadly force may be justifiable? How is that requirement worded?
What jury instructions are usually given in your state to address whether there is or is not a duty to retreat?
We’ll start this column with Attorney Harris’ input and follow up with comments from our other Affiliated Attorneys.
Steven M. Harris
Attorney-At-Law
14260 W. Newberry Road - #320, Newberry, FL 32669-2765
305-350-9150
Florida has “Standard Jury Instructions” adopted by a committee appointed by the Florida Supreme Court. They appear on the website of The Florida Bar. Judges rarely vary those instructions despite the fact that they are not presumed correct or reviewed by the Florida Supreme Court. Unfortunately, defense lawyers seldom propose more than small changes to the standard language. I know of several instances where standard instruction language is insufficient or incorrect. I recently wrote an article explaining that for Florida’s justifiable homicide statute, see at p.4 here: https://www.8jcba.org/resources/Documents/Jan%202025%20Newsletter.pdf .
When a defendant has no duty to retreat before threatening or using deadly force, that will be given as an instruction without explanation. When the duty to retreat is disputed (e.g., because the State alleges the defendant was engaged in a criminal activity or was not in a place he or she had the right to be) the jury will be instructed on that, including something like this (bolding supplied): The duty to retreat means the defendant had the legal obligation to use every reasonable means to avoid any danger before using deadly force. The law does not require the defendant to retreat if she was placed in imminent danger of death or great bodily harm and it would have increased her own danger to retreat, or if retreat would have been futile. If (defendant) had a duty to retreat and if she could have safely retreated, but did not do so, then you should find her use of deadly force was not justifiable.
Notice the first sentence contains no temporal context. Hence, I argue it should not be given. There is no Florida caselaw which imposes a generalized duty to “avoid any danger.” There is however caselaw which recognizes the contrary, for example, that a person may lawfully go outside armed to confront a potentially dangerous trespasser. Correctly stated, the duty to retreat (or not) and avoid the danger arises only when the imminent threat presents, and just before the force decision is made.
If a defendant has provoked as an initial aggressor by unlawful force, then and only then is there a duty by statute [§ 776.041(2)(a), Fla. Stat.] to exhaust “every reasonable means to escape such danger other than the use or threatened use of force which is likely to cause death or great bodily harm to the assailant.” (Bolding supplied).
John R. Monroe
John Monroe Law, PC
156 Robert Jones Rd., Dawsonville, GA 30534
678-362-7650
http://johnmonroelaw.com
In Georgia, there is both statutory and common law providing that a person has no duty to retreat and may stand his or her ground. Georgia statutes have provided for over 100 years that a person who is not the aggressor need not retreat and may stand his ground against an attack in a place where he has a right to be. Moreover, the Georgia Supreme Court has ruled that that was the common law in England that was adopted by Georgia as a colony.
Thomas J. Gibson, Esq.
Gibson Law Group
1601 E Basin Ave Ste 302, Pahrump, NV 89060
775-209-1035
https://nyelegal.com/
I was trial and appellate counsel for defendant in Earl v. State, 111 Nev. 1304 (Nev. 1995). I was denied my jury instructions regarding the “No duty to retreat rule” in Nevada. Case reversed on appeal.
Cole B. Combs
Cole Combs Law Firm PLLC
5600 Bell St., Ste. 105, # 298, Amarillo, Texas 79109
512-915-8030
In short, Texas has no such requirement. So long as a person is in a place they have a legal right to be then their right of self defense is not conditioned on any variety of a duty to retreat.
It’s theoretically possible that could be a fact question at trial. If, for example, there was a question about whether or not the defendant was trespassing at the time force was used. I’ve never seen that come up, so I’d have to craft a custom charge question if that situation arose.
Donald J. Green, Esq.
The Law Offices of Donald Green
4760 S Pecos Rd # Suite103, Las Vegas, NV 89121
702-409-8239
https://www.don-green-law-las-vegas-7777.com/
This is Attorney Donald J. Green in Las Vegas, Nevada.
1. NEVADA: Does a statute or case law in your state impose some generalized duty to avoid a dangerous person, place, or situation (as part of a duty to retreat or otherwise) before non-deadly or deadly force may be justifiable? How is that requirement worded?
ANSWER: IF YOU ARE NOT THE PRIMARY AGGRESSOR. There is no duty to retreat in Nevada so long as you are in a place, such as stand your ground where you are legally authorized to be. You may defend yourself in the presence of imminent death or great bodily injury in your presence, not across town where you drive to where your son might be located where he is getting beat up by gang members.
ANSWER: IF YOU ARE THE PRIMARY AGGRESSOR. In Nevada, if you are the primary aggressor, then, you must honestly and reasonably try to disengage and then, after trying to disengage, that is, somewhat of a retreat, if the original victim continues the aggression against you, you may use appropriate force to address the threat.
2. NEVADA: What jury instructions are usually given in your state to address whether there is or is not a duty to retreat?
ANSWER: Jury instructions in Nevada can be tailored to the information stated above.
COMMENT: STAND YOUR GROUND: Nevada recognizes an inherent right to stand your ground.
CASTLE DOCTRINE: Nevada recognizes the castle doctrine and it applies to when you are in a vehicle, again, so long as you are faced with imminent great bodily injury or death.
James D. “Mitch” Vilos
Attorney at Law, P.C.
PO Box 1148, Centerville, Utah 84014
801-560-7117
https://www.mitchvilos.com/
Utah’s self-defense instruction explaining that there is “no duty to retreat:”
CR533 Defense of Self or Other - No Duty to Retreat.
A defendant does not have a duty to retreat from another person’s use or threatened use of unlawful force before using force to defend [himself/herself] or a third party as long as the defendant is in a place where [he/she] has lawfully entered or remained.
However, if the defendant was the aggressor or was engaged in combat by agreement, the defendant must withdraw from the encounter and effectively communicate to the other person [his/her] intent to do so. If the other person nevertheless continues or threatens to continue the use of unlawful force, the defendant no longer has the duty to retreat.
References:
Utah Code sect. 76-2-402(4)
Here is Utah’s Self-Defense Statute, one of the strongest in the nation (notice the forcible felony clause):
Title 76 Utah Criminal Code
Chapter 2 Principles of Criminal Responsibility
Part 4 Justification Excluding Criminal Responsibility
Section 402 Force in defense of person -- Forcible felony defined. (Effective 5/4/2022)
76-2-402. Force in defense of person -- Forcible felony defined.
(1) As used in this section:
(a) “Forcible felony” means aggravated assault, mayhem, aggravated murder, murder, manslaughter, kidnapping and aggravated kidnapping, rape, forcible sodomy, rape of a child, object rape, object rape of a child, sexual abuse of a child, aggravated sexual abuse of a child, and aggravated sexual assault as defined in Chapter 5, Offenses Against the Individual, and arson, robbery, and burglary as defined in Chapter 6, Offenses Against Property.
(b) “Forcible felony” includes any other felony offense that involves the use of force or violence against an individual that poses a substantial danger of death or serious bodily injury.
(c) “Forcible felony” does not include burglary of a vehicle, as defined in Section 76-6-204, unless the vehicle is occupied at the time unlawful entry is made or attempted.
(2) (a) An individual is justified in threatening or using force against another individual when and to the extent that the individual reasonably believes that force or a threat of force is necessary to defend the individual or another individual against the imminent use of unlawful force.
(b) An individual is justified in using force intended or likely to cause death or serious bodily injury only if the individual reasonably believes that force is necessary to prevent death or serious bodily injury to the individual or another individual as a result of imminent use of unlawful force, or to prevent the commission of a forcible felony.
(3) (a) An individual is not justified in using force under the circumstances specified in Subsection (2) if the individual:
(i) initially provokes the use of force against another individual with the intent to use force as an excuse to inflict bodily harm upon the other individual;
(ii) is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony, unless the use of force is a reasonable response to factors unrelated to the commission, attempted commission, or fleeing after the commission of that felony; or
(iii) was the aggressor or was engaged in a combat by agreement, unless the individual withdraws from the encounter and effectively communicates to the other individual the intent to withdraw from the encounter and, notwithstanding, the other individual continues or threatens to continue the use of unlawful force.
(b) For purposes of Subsection (3)(a)(iii) the following do not, alone, constitute “combat by agreement”:
(i) voluntarily entering into or remaining in an ongoing relationship; or
(ii) entering or remaining in a place where one has a legal right to be.
(4) Except as provided in Subsection (3)(a)(iii):
(a) an individual does not have a duty to retreat from the force or threatened force described in Subsection (2) in a place where that individual has lawfully entered or remained; and
(b) the failure of an individual to retreat under the provisions of Subsection (4)(a) is not a relevant factor in determining whether the individual who used or threatened force acted reasonably.
(5) In determining imminence or reasonableness under Subsection (2), the trier of fact may consider:
(a) the nature of the danger;
(b) the immediacy of the danger;
(c) the probability that the unlawful force would result in death or serious bodily injury;
(d) the other individual’s prior violent acts or violent propensities;
(e) any patterns of abuse or violence in the parties’ relationship; and
(f) any other relevant factors.
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Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month when we will explore a new question.