Asking Questions About Standing Your Ground in New York
A New York City primer on Duty to Retreat vs. Stand Your Ground
on October 13, 2017
Updated on March 21, 2022
If you’re keeping score at home, it’s 31-11.
That’s 38 states, including Texas, Kentucky, Florida and Ohio, that have controversial stand-your-ground laws allowing use of lethal force in some situations. That eclipses the 11 states, including New York, that have the lesser-known duty-to-retreat laws as their self-defense laws.
“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 use of deadly force is not allowed if a person can retreat with “complete personal safety to oneself or other.” The duty to retreat does not apply if the person is in their own home and not the initial agressor.
“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 rather than a last 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.”
For more information on this area of law, see our overview of criminal defense.