But Your Honor! Part 4

 

Number 4)   Avoidance: Do you live in a stand your ground state or a duty to retreat state?

Not every retreat has to be as disastrous as Napoleon's from Moscow  

Let me suggest, that avoidance starts with some folksy wisdom.  Don't go stupid places.  Don't associate with stupid people, and don't play stupid games.  Avoiding these situations will go a long way to preventing serious life changing events.

Don't let ego involve you with things you don't need to be.  Anytime you can avoid violence, you are ahead of the game.  Your family will not see you as their champion if you shoot someone.  Your co-worker will not rally around you.  You yourself, assuming you’re a normal, moral person, will have issues.  Tactically, the battle you don't have to fight is a battle won.

Duty to retreat.  Some states have that restriction.  But most of us forget the conditional phrase that goes with it: if you can do so safely.

This means you don't have to turn your back on a person with a knife and run.  There are excellent reasons why this is unsafe, starting with, he could run faster than you.  You don't have to abandoned your wife, or kids or old Mr. Wilson who walked out of the store with you. 

Here too, you must be able to articulate what you knew at the time of the incident.  This is where your personal library of established experts on self-defense comes into play.  I recommend "Deadly Force" by Massad Ayoob.  It is an advanced companion to his "In the Gravest Extreme" which is the bible of self-defense shootings.  Word of advice, sign the inside title page and date it.  Make notes in the margins and page number referrals on the back.  The ability to tell the jury what you knew, when you knew it, why you knew it, and how it applied to your case is priceless.

It’s one of the reasons I write this blog.  It documents what I knew and when I knew it.  Damn clever of me.

Many states have what is referred to as the Castle Doctrine.  Simply it is an English common law idea that a person's home is their castle and they should be safe in it.  This also refers to what is called curtilage.  That’s buildings attached to your home, the property and so forth.  States will limit this through their definitions.  In some states it means your car, or occupied motor home or the hotel room you're sleeping in.  Castle Doctrine laws can be very complicated.  They draw a line between who is legally capable of being in your house and those not legally in your house.  A co-signer on your loan, the landlord, the neighbor you gave an emergency key to, police and fire, may have legal access to your castle.  More complications arise from the time and manner of entry.  The landlord who unlocks your door at 1 am is different from the same action at 12 noon. 

I once had strangers open my side door early one evening, walk in and demand to know where Fred and Alice were.  They were next door and he had mistakenly turned in the wrong driveway.  It is not inconceivable in a cookie cutter development there might be only four different lock and key combinations in total.  A drunk making a wrong turn could end up standing in your living room after opening the door with a matching key and stand there wondering where the new furniture came from. 

Don't believe that the Castle Doctrine is an absolute blanket assurance you can shoot an intruder in your house or apartment.  Every case is different.  You would be prudent to determine if the intruder has the ability, the opportunity and is placing you in jeopardy before you act.  Here too, getting the police involved right away helps cast you in the role of innocent victim.

There is a lot to say about retreating to a location of advantage 

Stand your ground also has problems.  You need to demonstrate you were in a location which was legal for you to occupy.  Here too, you must be innocent and not the aggressor.  It doesn't give you the right to shoot people, it just removes your legal requirement to retreat.  You must be able to articulate why you needed to respond with lethal force.  The phrase AOJ will help.

A is ability.  Does he have the ability to use lethal force on me or other innocents.

O is opportunity.  Does he have the opportunity to apply lethal force.

J is for jeopardy.  Is he acting in a manner that places me in jeopardy.

These three conditions are often referred to a three-legged stool.  All three must be present.  But a good stool has a fourth leg.  You must be innocent.  Remember Terry Pitman's #1: innocent.

I'd suggest you retreat to a better tactical location whenever you can.  The long hallway between the intruder and the children's bedroom sounds like a great place to make a stand.  Taking two steps back to get your body behind a parked car, or a tree can make the difference and be seen as de-escalation.  Both positions can give you a tactical advantage if the conditions deteriorate.  Again, I cannot stress enough that you need a reason, an articulable reason for your actions.  You don't have to be perfect, you need to be reasonable.