Asking Questions About Shooting First

A New York City primer on Duty to Retreat vs. Stand Your Ground

By Jim Walsh

If you’re keeping score at home, it’s 23-18.
Since 2005, 23 states have implemented controversial stand-your-ground laws, eclipsing the 18 states, including New York, that have the lesser-known duty-to-retreat laws on their books.
“I actually think that the stand-your-ground laws are more consistent with the law of the jungle, which is my view of human nature,” says Marc A. Fernich, a Manhattan-based criminal defense attorney with a solo practice. “The stand-your-ground laws are lightning rods for the liberals, but in federalism this is what we’re supposed to have: states being laboratories, legislating in conformity with the majority views.
“Personally I don’t agree with stand-your-ground,” he adds, “but that’s why I live in New York.”
What is a duty to retreat?
New York adopted “duty to retreat” in 1968. The law states that “the actor may not use deadly force if he or she knows that with complete personal safety, to oneself or others he or she may avoid the necessity of doing so by retreating; except that the actor is under no duty to retreat if he or she is … in his or her own dwelling and not the initial aggressor.”
“We see deadly physical force [cases] all the time,” says Justine Olderman, managing director of the criminal defense practice with The Bronx Defenders. “The prosecutor will argue that our client could have retreated safely and didn’t do so, and we have to combat that. We have to argue, ‘No, it would’ve been unreasonable to expect somebody to retreat at that point.’”
She adds, “We had a homicide case where a woman stabbed her child’s father in the hallway outside of her apartment, and in that case the question was, ‘Did she have a duty to retreat to her apartment?’ … We make a lot of assumptions that the place she could have retreated to was a safe place; but for her, who had been the victim of domestic violence at the hands of this man for years, her apartment wasn’t a safety zone. She had no place to retreat to.”
A hell of a thing
Gerald Shargel, a partner at Winston & Strawn, sees “duty to retreat” as a basic tenet of a civilized society, and “stand your ground” as a return to America’s Wild West days.
“It’s very hard for people in this country to shake the image of the gunslinger, and there are too many people out there slinging guns,” says Shargel, who notes that the United States would be awash in guns for decades to come even if gun sales ended today. “We’ll never get rid of guns. We just have to get over the notion that firing a weapon is the answer.”
“Duty to retreat” undoubtedly signifies weakness for some; but Shargel says it’s a crucial step to recalibrate America’s opinion of violence as a reasonable resort.
“Anyone other than a policeman or a retired policeman who carries a weapon is just looking for trouble,” said Shargel. “People blur the distinction between real life and some action thriller and are all too ready to display or pull out the gun. And what’s gonna happen next?
“The idea that you can simply stand there and invite the confrontation is wrong. You just can’t have a society where people have the right to address any confrontation with a weapon.”

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