Duty To Retreat or Stand Your Ground? Self-Defense in Pennsylvania

Filed under: Criminal Law by Contributor @ June 30, 2013

One oft-mentioned aspect of Pennsylvania criminal law that is imperative to understand is self-defense. The Trayvon Martin case has turned legalisms such as “duty to retreat” and “stand your ground” into household phrases, but these phrases are more complex than they sound. This primer will educate you on what exactly these terms mean, as well as the basics of self-defense. The relevant statute governing self-defense is 18 Pa. C.S.A § 505.

What is self-defense?

Self-defense is an affirmative defense, meaning that once the defendant raises that defense, the burden of proof shifts to the Commonwealth to disprove it. If the jury finds that the defendant lawfully used self-defense, then he is found not guilty and is granted immunity from all criminal and civil prosecutions arising from the incident. An individual may use deadly force in self-defense to protect himself from death, serious bodily injury, kidnapping, or rape.

Severity of force

An individual may only defend himself with a degree of force necessary to repel the attack, but no more. That is, you may use a gun to repel an attacker wielding a bowie knife, but may not use a gun to repel an attacker wielding a butter knife. Similarly, the threat perceived must be legitimate. It would hardly be considered self-defense to shoot an elderly woman in a wheelchair making threats with a knife, but that same knife would be a lethal weapon in the hands of an enraged patron at a bar.

Duty to retreat

“Duty to retreat” and “retreat to the wall” essentially obligate an individual to remove himself as far as possible from the threatening situation, and only after he can go no farther may force be used. If there is nowhere that provides “complete” safety, an individual has no duty to retreat.

Castle doctrine

Historically, Pennsylvania law has stated that one’s dwelling is the only place that there is no “duty to retreat”. This is called the “castle doctrine”, stemming from the phrase “a man’s home is his castle”, and dictates that an individual may use deadly force to repel an attacker from his home.

Stand your ground

Recent changes to Pennsylvania’s self-defense statute provide for the use of deadly force without retreating when outside the home, as well as inside. Such changes come in the form of “stand your ground” laws. Pennsylvania’s “stand your ground” laws state that an individual has no duty to retreat and may use deadly force against an assailant provided three criteria are satisfied: the person has a right to be in the place where he was attacked; the person believes it is immediately necessary to use force to protect himself against death, serious injury, kidnapping, or rape; and the attacker possesses or uses a firearm, firearm replica, or other weapon capable of lethal use. The issue here is apparent: If a small woman carrying a gun for protection were to get in a confrontation with an unarmed but massive professional boxer, the plain language of the statute states that her only remedy is to run away from the assailant to complete safety, and only then may she use her gun, assuming the attacker follows and her use of force is deemed reasonable. However, if the boxer brandishes a knife at close range, she can probably use her gun immediately. The difference between the two scenarios is negligible, since such a person’s fists are as dangerous as a knife at close range, but only in one situation may the woman “stand her ground”. Pennsylvania lacks a “disparity of force” clause in its self-defense statute, so these issues are complicated and require a lawyer to navigate. Further, these statutes are always subject to the whim of a jury, which could convict someone using self-defense despite some evidence that the use of force was reasonable.

Defense of others

You may defend others using force, as long as both you and the person whom you are defending are lawfully allowed to use force in self-defense.

When you may NOT use self-defense

Even more important than knowing when you may use self-defense is knowing when you may not use self-defense. Below are some examples of when self-defense is not permitted as an affirmative defense:

  • If you are committing an illegal act
  • If you are defending yourself with an illegal weapon
  • If you are somewhere that you are not lawfully allowed to be
  • If you instigated the incident
  • If the person from whom you are defending yourself is defending his own property
  • If you are defending yourself from a police officer lawfully executing his duties

Conclusion

The takeaway from this is that you should be cautious when using self-defense. Do not go looking for trouble, and only use self-defense if you believe that it is absolutely necessary to defend yourself, but not a second before that. Even though the statute is rather open-ended, case law fills in the gaps that the legislators left open. Self-defense is a complicated issue and requires a consultation with a lawyer to be fully understood on a case-by-case basis. To speak with one of our criminal defense attorneys, contact Fairlie & Lippy today.

6 comments:

  1. Mike says:

    Hello, your article is the most straight forward and informative that I have been able to locate. As a new gun owner/carrier I had a few questions regarding whether they are within legal limits or not. If you are willing to answer a few questions I would greatly appreciate it. Thank you in advance.

  2. Sure, we would be happy to answer any questions within our knowledge about gun ownership and self-defense. If the answer to your question requires research we might then charge you for that, but only with your approval in advance. Call 215-997-1000. Thanks, Steve

  3. Alex says:

    Regarding ‘when you may not use self-defense’, one of the examples says ‘if you are committing an illegal act’. Wouldn’t defending yourself in self-protection initially be viewed as an illegal act? For example, if you had to punch someone in the face in self-defense.

  4. No, if you punch someone in the face and you are the aggressor that is an illegal act. If you punch the person in the face in self-defense that is permitted by Pennsylvania’s use of force statute, it is a legal justification, and therefore it is not an illegal act. The common sense reason for prohibiting self-defense after an illegal act by the “defender” is to prohibit someone from starting the fight with the express purpose of legally hurting the other person.

  5. Alex says:

    So basically ‘duty to retreat’ is rescinded if you are ‘standing your ground’. For example, if you’re in a public place.

  6. Alex says:

    Mr. Fairlie, I have a question regarding an assault case including minor facial fractures. If you’re found not guilty in criminal court by reason of self-defense, are you liable in civil court if you are sued?

Leave a Reply

Your email address will not be published. Required fields are marked *