How far must one go in the duty to retreat before the use of

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How far must one go in the duty to retreat before the use of

Postby Alan K » Tue Feb 12, 2002 9:29 pm

The question of retreating before implementing deadly force constantly nags us in determining just how one may act when confronted with a life threatening conflict, more especially in the Commonwealth of Massachusetts.

Let us take a brief look at some of the leading cases on this subject; these cases are commonly referred to as the trilogy of self-defense deadly force decisions.

The cases (for brevity) are Shaffer, Barton and Gagne, and many of you who have read this forum in the past will remember the Shaffer case (decided in 1975). In that case Roberta Shaffer was visited by her ex one morning and was asked to leave the house. He had been under a restraining order and had been guilty of assault and battery on Roberta in the past, but the restraining order was not then in effect. He left the house when requested but returned in a rage and threatened to kill her and the children and Roberta took a 22 cal. rifle off of a wall mount and retreated to the basement. The ex came after her coming down the stairs uttering deadly threats. She fired once and it was lethal. She was convicted of murder and was serving a long sentence at MCI Framingham, when her case was reviewed by the Supreme Judicial Court.

In the Shaffer case the law of self-defense in one’s home as the law was then. The Court discussed the other two cases and went on to say that Massachusetts had always followed the standard requiring retreat by all reasonable means before resorting to deadly force.
The Court said that Massachusetts had never adopted the majority rule which permitted one to use deadly force in his own home without retreating, and saw no reason why it should do so now. The leading cases cited were Barton and Gagne.

The Court stated that what was reasonable was a jury question when applying the law to the facts concerning the retreat. In Shaffer, despite the fact that she did retreat, the Court held that the facts disclosed the basement had a door and that exiting was necessary in the eyes of the jury, prior to the use of deadly force.

There is the trap for the unwary. The Court would not rule that the jury was wrong as a matter of law, and that the jury was warranted in its verdict.

A public furor ensued and the law was amended by M.G.L.A. c. 278 Section 8A.

In a later case (Commonwealth v. Peloquin) the SJC said of the foregoing statute:

That statute provides, in substance, that an occupant of a dwelling charged with killing or injuring a person unlawfully in the occupant’s dwelling, may defend on the ground that he acted in the reasonable belief that the trespasser or intruder was about to inflict great bodily injury or death to him In such a case, the occupant may use reasonable means to defend himself, and has no duty to retreat from the person unlawfully in his dwelling.”

Please remember that a self-defense plea with no duty to retreat if confronted with factual conduct which would reasonably place the defender in a position of fear injury or death as reported above is limited to Castle law cases.

In explaining the Massachusetts general rule, the SJC states:

“This rule does not impose an absolute duty to retreat regardless of considerations of personal safety. The proper application of this doctrine does not require an innocent victim to increase is own peril out of regard for the safety of a murderous assailant, because one need only retreat so far as necessary in the circumstances until there is ‘no probable means of escape’ Citing the case of Commonwealth v. Crowley 46 N.E. 415 (an 1897 case). Our rule gives due recognition to the value of human life, and requires that all available means for escape be exhausted. “The right of self-defense arises from necessity, and ends when the necessity ends’ (Commonwealth v. Kendrick).

Another quote as a guideline was in the case of Commonwealth v. Houston in which the court stated, “To what extent one who is threatened may go in defending himself and whether he has availed himself of all proper means of escape are questions of fact for the jury to be decided in light of all existing circumstances…”

The practical implication is that the jury must apply the doctrine which haunts all of us in many phases of the law, and that is the so called “reasonable man rule” measured by weighing all applicable facts.

For the benefit of those who have not seen me harp on the necessity in Massachusetts of having to show a prima facie case in order to obtain the right to have the jury instructed in the law of self defense.

The evidence intended to be proved, if found to be favorable to a defendant, must in itself be sufficient to exonerate if believed by a jury. You don’t go into a self defense case on a wing and a prayer.

You need to know this so that if you are able to act in situation where witnesses are present, do not rely on others. Get witnesses if you can, and their names and addresses, Employ detectives if necessary. You are really responsible to prove your own right to defend in many cases. Most cases are not viewed by hoards of witnesses as they were in the Hockey Rage case. Sanchin is not the only area of three conflicts. You face them in self defense where 1. . you must retreat in what is deemed in a reasonable manner. 2. You must have the foundation to assert the rule of self-defense. 3. Your force asserted must also meet a standard or reasonableness in the given circumstances.

But if you intend to represent yourself, you have a fool as your client.

The importance of the location of where the assault occurred and under what circumstances, as well as your justified actions must be stressed to a jury.

Other issues a jury should consider is evidence of the relative physical capabilities of the combatants, the characteristics of the weapons used, and the availability of maneuver room in, or means of escape from the area in which the confrontation occurs.

Alan K
Alan K
Posts: 493
Joined: Mon Nov 20, 2000 6:01 am
Location: Framingham, MA USA

How far must one go in the duty to retreat before the use of

Postby Allen M. » Sat Mar 02, 2002 3:48 am

Is there anything written into the law concerning handicapped people defending themselves?

What about a handicap person who cannot run away from an attack and must immediately defend even if, God forbid, death or serious injury occurs to the assailant? What kind of defense does he have?

Allen Moulton from Uechi-ryu Etcetera
Allen M.

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