No Duty to Retreat

[sjfcontrol]

Charles,
I'm familiar with the codes that state there is no duty to retreat under the three conditions. What code comes into play that says there IS a duty to retreat otherwise?

[Charles L. Cotton]

Charles,
I'm familiar with the codes that state there is no duty to retreat under the three conditions. What code comes into play that says there IS a duty to retreat otherwise?

I'm not sure I understand the question. The general rule is that there is no duty to retreat anywhere. The exceptions to this general rule are in TPC §§ 9.31(e) and 9.32(c).

Chas.

[K.Mooneyham]

Mr. Cotton, I once attended a seminar on the use of force you gave at Cabelas in Fort Worth, and you were aided by the folks at Crossfire. However, that was some years ago, and I have gotten forgetful about something. There is no duty to retreat, and I understand that. However, you are not allowed to use force in response to verbal provocation. So, if someone, in a very aggressive manner, states that they are going to severely injure you or even threatens to kill you, you are not allowed to use force to respond. If you didn't retreat, though, and that person then came at you, how is a jury going to see it if you then used force and/or deadly force to defend yourself? Wouldn't they find it odd at the least that you didn't back away from the person who threatened you, even if you had no duty to do so? I understand the intent of the law, but some of the nuances still bug me.

[switch]

DPS teaches instructors you seldom have verbal aggression alone, - you also have physical presence, your opponents attitude/demeanor, etc.

Prior to the no duty to retreat statute, if you were involved in an altercation, the DA could tell the jury you should have retreated. You could have, safely. If you had retreated, the deceased.....
No, the DA cannot make that argument.

No-one is advocating you stand up and fight in every instance. Frequently, letting it go is a much better choice. Now, we have some statutory protection if we do get drug into a fight.

[switch]

Pre-9/1/1977: Texas was a "true man" state meaning there was no retreat duty anywhere in Texas.
9/1/1977 - 8/31/1995: There was a retreat duty everywhere in the State, including your home. However, Texas courts watered down the statute somewhat.
9/1/1995 - 8/31/2007: Texas was a "Castle Doctrine" state meaning there was no retreat duty in your home. There was a retreat duty outside your home, subject to limitations set out in court decisions.
9/1/2007: No retreat duty anywhere, subject to the caveats I set out earlier.

Thanks, Charles. I'm going to save this.

My recollection was the lege added No duty to retreat anywhere in TX effective 9/1/2005. That version protected us from civil liability ONLY in cases of self-defense. 9/1/2007, they added all justified shootings, not just self-defense. I think this was the original reason behind the test question about still being sued civilly even if justified. Now, that question is moot. I spent a lot of class time teaching which justified shootings were also self-defense. :(

I did NOT realize the home (Castle) was added in 1995. :( I thought that preceded the CHL law. I did not realize that prior to 1977 we were a 'true man' state (and never heard that term, either.

The Castle (home) was expanded to include RV's, OCCUPIED vehicles, OCCUPIED businesses at some point. I think at the same time, circa 2005 but maybe in different sessions.

My understanding, the home does not have to be occupied to come under your Castle. ie, you come home and catch a burglar, you're still covered. If you go to your car/business (respond to a burglar alarm?) when it was NOT occupied, you might not be covered.

[jmra]

DPS teaches instructors you seldom have verbal aggression alone, - you also have physical presence, your opponents attitude/demeanor, etc.

Prior to the no duty to retreat statute, if you were involved in an altercation, the DA could tell the jury you should have retreated. You could have, safely. If you had retreated, the deceased.....
No, the DA cannot make that argument.

No-one is advocating you stand up and fight in every instance. Frequently, letting it go is a much better choice. Now, we have some statutory protection if we do get drug into a fight.

The DA can make the argument that you were the aggressor in the confrontation which means you have a duty to retreat. This is why it is wise to always have an exit plan and understand the concept of deescalation. When faced with a verbal confrontation we can use our bucket of water to attempt to put the fire out (deescalation), or we can toss our bucket of gas on the flames (escalating the confrontation). If you choose the second option your firearm better not come into play unless you subsequently attempted to retreat and were pursued with threat of bodily harm.
I'm thankful that we do not have to run away if we are confronted by those who intend us harm, but deadly force should always be a last resort. For me the only time I might take the stance of shoot first and ask questions later is if I'm sitting at home minding my own business and someone breaks into my home. In just about any other instance, unless I or another are in immediate physical danger, I'm headed for the nearest exit.
Some may view this as weakness, I view it as choosing your battles wisely.

[switch]

1 of the three exceptions - you can't be the aggressor.

This adds an additional burden on the DA. Now he has to convince the GJ/jury that you were the aggressor, then he can claim you should have retreated. :)

Every body has to make their own ROE. Personally, if the other person has a deadly weapon, they better drop it real quick - 21 foot rule.

[sjfcontrol]

Charles,
I'm familiar with the codes that state there is no duty to retreat under the three conditions. What code comes into play that says there IS a duty to retreat otherwise?

I'm not sure I understand the question. The general rule is that there is no duty to retreat anywhere. The exceptions to this general rule are in TPC §§ 9.31(e) and 9.32(c).

Chas.

OK, I'll try this again. 9.31(e) and 9.32(c) says if you meet all three of the conditions, then there is no duty to retreat. What happens if you DON'T meet one or more of the conditions? 9.31(e) and 9.32(c) IMPLY that if you don't meet all the conditions, then there IS a duty to retreat. (If you don't meet the conditions, and there is STILL no duty to retreat, then the conditions are meaningless.)

But I am unaware of any retreat statute(s) that would come into play when you are ineligible for the non-retreat statutes.

In other words, what would a DA charge you with, or how would a DA use the fact that you didn't meet one or more of the three requirements in 9.31(e) or 9.32(c), and did not retreat?

[switch]

You are not charged w/not retreating. You are charged w/murder or some lesser charge.

The DA will tell the jury that you should have retreated, therefore should be convicted. Your attorney will object, there is NO duty to retreat. The DA has to argue that you were the aggressor, etc. before he can tell the jury you should have retreated.

Failure to retreat becomes an element of the crime? An excuse/reason to convict. It is NOT a crime in itself.

[sjfcontrol]

You are not charged w/not retreating. You are charged w/murder or some lesser charge.

The DA will tell the jury that you should have retreated, therefore should be convicted. Your attorney will object, there is NO duty to retreat. The DA has to argue that you were the aggressor, etc. before he can tell the jury you should have retreated.

Failure to retreat becomes an element of the crime? An excuse/reason to convict. It is NOT a crime in itself.

Then it's just what I called it -- an IMPLIED duty to retreat (when you don't meet the conditions).

[Charles L. Cotton]

Mr. Cotton, I once attended a seminar on the use of force you gave at Cabelas in Fort Worth, and you were aided by the folks at Crossfire. However, that was some years ago, and I have gotten forgetful about something. There is no duty to retreat, and I understand that. However, you are not allowed to use force in response to verbal provocation. So, if someone, in a very aggressive manner, states that they are going to severely injure you or even threatens to kill you, you are not allowed to use force to respond. If you didn't retreat, though, and that person then came at you, how is a jury going to see it if you then used force and/or deadly force to defend yourself? Wouldn't they find it odd at the least that you didn't back away from the person who threatened you, even if you had no duty to do so? I understand the intent of the law, but some of the nuances still bug me.

The fact-finder (jury or judge in a bench trial) cannot even consider the fact that you had an avenue of retreat but chose not to avail yourself of it. This means that evidence of a retreat possibility is not relevant to any issue that the jury will have to determine, thus such evidence would not be admissible. (See TPC §9.31(f) below.) Remember, in order to use deadly force under TPC §9.32, one must first be able to use force under §9.31. This doesn't mean a judge won't screw up and let in inadmissible evidence, but it is unlikely since this is a statutory provision.

Obviously, this would not apply if one or more of the three elements that would create a retreat duty exist.

Chas.

For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.

[Charles L. Cotton]

You are not charged w/not retreating. You are charged w/murder or some lesser charge.

The DA will tell the jury that you should have retreated, therefore should be convicted. Your attorney will object, there is NO duty to retreat. The DA has to argue that you were the aggressor, etc. before he can tell the jury you should have retreated.

Failure to retreat becomes an element of the crime? An excuse/reason to convict. It is NOT a crime in itself.

Then it's just what I called it -- an IMPLIED duty to retreat (when you don't meet the conditions).

I see what you are saying about the wording, but the effect is to create a duty to retreat if any of the three elements is present; i.e. 1) trespass; 2) provocation; or 3) commission of a crime at the time force is used.

There never has been a stand-alone offense of "failure to retreat." Remember, all of Chp. 9 of the Penal Code deals with justifications or defenses to potential criminal charges set out elsewhere in the Penal Code. In other words, §9.31 tells us when we can punch someone in the nose when it would otherwise be an assault. Section 9.32 tells us when we can use deadly force against someone when it would otherwise constitute murder (or other unlawful homicide). Since §§9.31 and 9.32 are justifications/defenses, every element of that justification must be present, or absent, as required by the Code section.

The way the retreat duty was created prior to passage of SB378 (2007) was by the addition of Tex. Penal Code §9.32(a)(2) as an element of the justification of self-defense using deadly force. It read "if a reasonable person in the actor's situation would not have retreated;. So then as now, it was an element of self-defense, not a stand-alone offense.

Chas.

[o b juan]

Charles I have had a question about;

"IF A REASONABLE PERSON IN THE ACTORS SITUATION WOULD NOT HAVE RETREATED"

How long was that in the penal code before it was changed to what we have now?

I hadnt looked @ Texas law or any law as I did when I was LE in Louisiana many many years ago

I have wondered about this since I went to the Instructor school in 95'

[Charles L. Cotton]

Charles I have had a question about;

"IF A REASONABLE PERSON IN THE ACTORS SITUATION WOULD NOT HAVE RETREATED"

How long was that in the penal code before it was changed to what we have now?

I hadnt looked @ Texas law or any law as I did when I was LE in Louisiana many many years ago

I have wondered about this since I went to the Instructor school in 95'

The first time a duty to retreat was established in Texas was in 1973 (effective 1/1/74). Prior to that Texas was a "True Man" state meaning that one had to duty to retreat before using deadly force, so long he/she was otherwise justified under Texas law. From Jan. 1, 1974 until Sept. 1, 1995, there was a retreat duty everywhere in Texas, including your home. This changed in 1995 when the retreat duty inside your home was repealed. Thus, from Sept. 1, 1995 until Sept. 1, 2007, Texas was a "Castle Doctrine" State meaning there was no retreat duty in your home, but there was outside your home. I don't know if the exact same wording was used, but it likely was the same. The current "no retreat duty" language was added in 2007 with passage of SB273.

Chas.

[Charles L. Cotton]

If anyone is using the timeline I posted regarding the retreat duty in Texas, I corrected an error as to when Texas changed from a "True Man" state to a "retreat" state. I had posted 1977 but it the legislature made the change in 1973, effective Jan. 1, 1974.

Chas.