Legal Use of Force – Avoidance

You have purchased daily carry tools such as a firearm, OC or OC/CS spray, a reliable knife, maybe even a tactical pen. You have trained with all these tools. You have the mental attitude and confidence to deploy these tools.
 
In this training you should have been taught that the use of force is the absolute last resort. In Michael Martin’s Concealed Carry and Home Defense he states: “The only guaranteed method of surviving a violent encounter is to avoid it in the first place.”
 
If that is the case, why do we do all the training? Why do we spend so much money on gear? The answer is a simple one, we can’t always avoid the actions of a bad actor who intends to do us harm. Avoiding an encounter is always the best answer and the surest way of going home that day.
 
When avoidance is not possible, we need to be very knowledgeable about the laws in the jurisdiction of the encounter. There is a myriad of possible traps. Each jurisdiction will have laws that govern your responsibilities. They could be termed “Stand Your Ground,” “Duty to Retreat,” “Castle Doctrine” to name a few.
 
Duty to Retreat/Stand Your Ground
 
If your state, such as mine, has a law that states you do not have a duty to retreat, you do not have to retreat if you are lawfully where you are. You are protected from the prosecutor using your failure to retreat to deny you a self-defense determination.
 
However, if you are in a “Duty to Retreat” state things are different. If you have an opportunity to safely retreat, you must or lose the ability to claim self-defense. Note the ‘safely retreat’ in that statement. You are not expected to put yourself in a more hazardous situation to avoid defending yourself. A simple example is if the threat is advancing towards you and your only retreat would be into a street with heavy traffic, you do not have to enter the traffic and can defend yourself and claim self-defense.
 
There are other factors that may allow self-defense in lieu of a retreat. One obvious example is the protection of another innocent party. If I were out in public with my wife and someone is attacking her, I am certainly not going to just leave her and retreat. I will defend her and the justice system should allow me that option without using it against me.
 
Each state has their own nuances to duty to retreat. Your state may have laws that allow less than deadly force without a duty to retreat but require a retreat if deadly force is being used. Get to know your areas laws and the laws of any travel destinations.
 
Castle Doctrine
 
Castle Doctrine comes from Sir Edward Coke who said: “An Englishman’s home is his castle.” The first aspect of this is that you do not have a duty to retreat if you are in your home. That does not mean you can use deadly force to defend your home. In all states except one, deadly force cannot be used to defend property. If you are in Texas, don’t mess with a man’s truck or his dog. He can lawfully use deadly force to defend property.
 
Castle Doctrine has been extended to include place of employment and occupied vehicles. In all cases, for the Castle Doctrine to apply the occupation of the space must be legal. Legal status may be affected by impending divorce or other domestic issues. Someone who purchased a home with a spouse is the legal co-owner of the home, until. Until the marriage starts to fall apart. If one spouse moves out of the property, the legal status of being in that property relies upon an invitation of the one that has continued occupation.
 
As stated in the beginning, avoiding a violent encounter should always be the primary goal. Possessing the ability to exert deadly force against another elevates our responsibility in the eyes of the law. Even a verbal altercation’s prosecution can be elevated to a felony by the mere presence of deadly force, even if it was not used or even disclosed. Using deadly force is an absolute last resort after all other methods have been exhausted.
 
While there are many jurisdictions that have laws that support not retreating, these laws are not so clear-cut that a lay person cannot say they were legally within the bounds of that law without legal advice. That is why we need to do two things, evoke our right to remain silent (also derived from the Castle Doctrine) and get a lawyer.