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Why American Law Should Jettison “Stand Your Ground” and Adopt the English Approach to Retreat Franklin Stockdale Boston College Law School, [email protected]

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Why American Law Should Jettison “Stand Your Ground” and Adopt the English Approach to Retreat Franklin Stockdale Boston College Law School, Franklin.Stockdale@Bc.Edu Boston College International and Comparative Law Review Volume 39 | Issue 2 Article 8 8-11-2016 Withdrawing a License to Kill: Why American Law Should Jettison “Stand Your Ground” and Adopt the English Approach to Retreat Franklin Stockdale Boston College Law School, [email protected] Follow this and additional works at: http://lawdigitalcommons.bc.edu/iclr Part of the Comparative and Foreign Law Commons, Criminal Law Commons, and the Second Amendment Commons Recommended Citation Franklin Stockdale, Withdrawing a License to Kill: Why American Law Should Jettison “Stand Your Ground” and Adopt the English Approach to Retreat, 39 B.C. Int'l & Comp. L. Rev. 453 (2016), http://lawdigitalcommons.bc.edu/iclr/vol39/iss2/8 This Notes is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College International and Comparative Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. WITHDRAWING A LICENSE TO KILL: WHY AMERICAN LAW SHOULD JETTISON “STAND YOUR GROUND” AND ADOPT THE ENGLISH APPROACH TO RETREAT FRANKLIN STOCKDALE* Abstract: The justification of self-defense generally allows the use of a reasona- ble amount of force when a victim of an attack has a reasonable belief that the use of force is necessary in order to prevent an imminent harm. For centuries, the justification of self-defense included a duty of the victim—or defendant—to re- treat before resorting to force. Today in the United States, this duty has been eliminated entirely in many jurisdictions. In England, however, the duty has not been done away with but has, instead, been incorporated into the reasonableness aspect of self-defense, which evaluates whether the amount of force used by the defendant was reasonable and whether the defendant’s belief of an imminent harm was reasonable. The English version, therefore, allows the use of force even when retreat is possible but only when it can be shown that it was reasona- ble not to retreat. U.S. jurisdictions should undo the outright abandonment of the duty to retreat and adopt the English adjustment because it is better suited to both to gun culture in the United States and to the protection of human life. INTRODUCTION Americans own more guns than their counterparts in other wealthy na- tions.1 In fact, one in four Americans, 35% of American households, own at least one gun.2 The Supreme Court has held that the Second Amendment to the U.S. Constitution guarantees an individual right to gun ownership—especially when the gun is kept for self-defense.3 For better or worse, American law op- erates in an environment that is heavily armed.4 Nonetheless, American laws have adopted an ever-expanding view of self-defense justifications by dimin- ishing the common-law requirement of retreat and eliminating the requirement * Franklin Stockdale is an Articles Editor for the Boston College International & Comparative Law Review. 1 See PHILIP J. COOK & KRISTIN A. GOSS, THE GUN DEBATE: WHAT EVERYONE NEEDS TO KNOW 2 (2014). 2 See id. at 2–4. 3 U.S. CONST. amend. II; McDonald v. Chicago, 561 U.S. 742, 749–50 (2010); District of Co- lumbia v. Heller, 554 U.S. 570, 593–94 (2008). 4 See COOK & GOSS, supra note 1, at 2–4. 453 454 Boston College International & Comparative Law Review [Vol. 39:453 in certain situations.5 Meanwhile, America’s common-law ancestor, England, has expanded the justification by incorporating the duty to retreat into the de- termination of whether the use of force in self-defense was reasonable.6 This Note examines the ways in which the United States and England ap- proach the obligation to retreat in the context of self-defense. It advocates that U.S. jurisdictions should adjust their laws to reflect English law so that the obligation to retreat is included as a factor to consider when assessing whether the defendant’s use of force in self-defense was reasonable. Part I of this Note describes the status of the self-defense justification in U.S. and English crimi- nal law. Part II discusses the legal development of self-defense in both systems through an examination of significant cases, the history of self-defense, gun ownership statistics, and homicide rates. Part III evaluates the positive and negative qualities of the different approaches and concludes the English ap- proach is preferable—even with private gun ownership as high as it is in the United States. In particular, including retreat in the assessment of the reasona- bleness requirement is superior because it puts greater emphasis on human life and safety, which is particularly important in a society that is built on laws and replete with guns. I. BACKGROUND The legal systems of the United States and England are intimately related due to their shared cultural heritage and common-law systems—the latter of which is identified as the body of law first developed in England by judicial application of precedent set by prior cases.7 This English law followed colo- 5 See, e.g., FLA. STAT. ANN. § 776.012(2) (West 2014); 18 PA. CONS. STAT. § 505(b)(2.3) (2014); Erwin v. State, 29 Ohio St. 186, 199–200 (1876). 6 See R v. Julien, [1969] 1 W.L.R. 839 (AC) at 843 (Eng.) (“It is not . the law that a person threatened must take to his heels and run in [a] dramatic way . ; but what is necessary is that he should demonstrate by his actions that he does not want to fight.”); R v. Bird, [1985] 2 All E.R. 513 (AC) at 516 (Eng.) (“There were formerly technical rules about the duty to retreat before using force, or at least fatal force. This is now simply a factor to be taken into account in deciding whether it was necessary to use force, and whether the force was reasonable.” (quoting JOHN C. SMITH & BRIAN HOGAN, CRIMINAL LAW 327 (5th ed. 1983))). 7 See Common Law, BLACK’S LAW DICTIONARY (10th ed. 2014) [hereinafter Common Law, BLACK’S]; DANIEL R. COQUILLETTE, THE ANGLO-AMERICAN LEGAL HERITAGE: INTRODUCTORY MATERIALS 1 n.1 (2d ed. 2004); Common Law, ENCYC. BRITANNICA, http://www.britannica.com/ EBchecked/topic/128386/common-law [https://perma.cc/7SZG-HQ69] (last visited Mar. 23, 2016); OLIVER LEWIS, HOW IMPORTANT ARE SHARED CULTURE, LANGUAGE, AND VALUES TO THE ‘SPE- CIAL RELATIONSHIP BETWEEN BRITAIN AND THE UNITED STATES?’, (Dec. 3, 2007), http://www.e-ir. info/2007/12/03/how-important-are-shared-culture-language-and-values-to-the-%E2%80%98special- relationship%E2%80%99-between-britain-and-the-united-states/ [https://perma.cc/27CG-QHT2] (“Brit- ain and America are widely perceived to share many of the same, largely ‘liberal’, values. Bilateral relations between the United States and the United Kingdom are arguably conducted along these lines, where shared liberal capitalist ideals are the currency and wider cultural similarities add to the sense of solidarity between the two . .”). 2016] Adopting the English Approach to Retreat 455 nists to North America through clauses in their colonial charters that permitted them to establish laws but which also held English law as superior, forbidding any colonial law that conflicted with English law.8 Upon American independ- ence, the former colonies’ newly empowered state legislatures enacted statutes formally adopting the common law of England.9 This trend continued such that every state except Louisiana adopted similar statutes embracing the common law.10 Of course, these statutes only adopt the common law to the extent per- mitted and amended by the U.S. Constitution or state law.11 Further, through early cases, American judges not only relied on the law of England in their decisions but also adapted it to fit the needs of the new American society. 12 One of the areas of law in which this adaptation was most pronounced was regarding the justification of self-defense.13 Justifications and excuses are defenses to criminal charges.14 Excuses, like insanity or involuntary intoxication, are defenses that demonstrate a crimi- nal defendant is not actually blameworthy for his otherwise criminal acts.15 Justifications, on the other hand, are defenses that show a lawful reason for the defendant’s actions—the absence of which would render them criminal.16 Jus- tifications include necessity and self-defense.17 The justification of self- defense generally provides that a reasonable amount of force may be used to repel an attack when the victim has a reasonable belief that the use of force is necessary to prevent the imminent attack.18 8 See COQUILLETTE, supra note 7, at 368. 9 See, e.g., DEL. CONST. of 1776, art. XXV; FLA. STAT. ANN. § 775.01 (West 2014); 1 PA. CONS. STAT. § 1503(a) (2014); S.C. CODE ANN. § 14-1-50 (1976); VA. CODE ANN. § 1-200 (2015). 10 Common Law, BLACK’S, supra note 7. 11 See, e.g., DEL. CONST. of 1776, art. XXV; 1 PA. CONS. STAT. § 1503(c) (West 1972); S.C. CODE ANN. § 14-1-50; VA. CODE ANN. § 1-200. 12 See RICHARD MAXWELL BROWN, NO DUTY TO RETREAT: VIOLENCE AND VALUES IN AMERI- CAN HISTORY AND SOCIETY 5–6 (1991); COQUILLETTE, supra note 7, at 505. 13 See SANFORD KADISH ET AL., CRIMINAL LAW AND ITS PROCESSES: CASES AND MATERIALS 865 (9th ed. 2014). 14 See Excuse, BLACK’S LAW DICTIONARY (10th ed. 2014); Justification, BLACK’S LAW DIC- TIONARY (10th ed. 2014). 15 See Excuse, supra note 14; KADISH ET AL., supra note 13, at 817; ANDREW ASHWORTH, PRIN- CIPLES OF CRIMINAL LAW 96 (5th ed.
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