Duty to retreat

revjen45 · Post by **revjen45** » Sat Jun 17, 2006 1:18 pm

Is there a duty to retreat in TX when threatened in a public place? What about in your home during daylight hours? At the age of 59 and having numerous orthopedic injuries, (I have a gimp parking placard to back up my claim that I am disabled.) I could not escape from an assailant on a pogo stick. Turning around to flee would be tantamount to inviting getting shot or stabbed in the back. If attempt to flee is required, does a couple of steps back while I draw satisfy the reqm't? I do not behave in a belligerent fashion and treat everyone with respect, so it's unlikely that I would precipitate an encounter. Right after we moved to the DFW area (Fall '03) I remember an incident in which an unarmed peon was stabbed to death while talking to the police on his cell phone, so I have no delusions that the authorities will arrive in time to save me.

bauerdj · Post by **bauerdj** » Sat Jun 17, 2006 1:35 pm

Very interesting question - what would satisfy the duty to retreat when the person attacked is aged and/or infirm. I am guessing here but I think it has something to do with disparity in force.

One reason I find this question interesting is I am in the same age/physical limitation situation.

Charles, could you comment on this subject?

Dave B.

longtooth · Post by **longtooth** » Sat Jun 17, 2006 2:17 pm

Me too. I am one of the inbetweeners. No way could I ever defend my self against even an average street thug. Yet I don't LOOK that infirm. Just 56, stiff, slow, no knees.

one eyed fatman · Post by **one eyed fatman** » Sat Jun 17, 2006 3:28 pm

duty to retreat in TX

Nothing I've heard of, and your phyical condition wouldn't have anything to do with it if it was a law.

JB3 · Post by **JB3** » Sat Jun 17, 2006 4:15 pm

I guess my signature spells it out for me. Two knee replacements. One good revision, one bad revision and one to go, but I don't think I can go through five surgeries in two years. I guess I'll just say "PITY THE FOOL" cause I cant run

John

Glockamolie · Post by **Glockamolie** » Sat Jun 17, 2006 4:55 pm

Penal Code 9.32:

(a) A person is justified in using deadly force against another:

(1) if he would be justified in using force against the other under Section 9.31;

(2) if a reasonable person in the actor's situation would not have retreated; and

(3) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to protect himself against the other's use or attempted use of unlawful deadly force; or

(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

As we find ourselves frequently in the Texas Penal Code, if a "reasonable person" would not have retreated, you don't have to, either. That will come down to the totality of the circumstances, I'd think. If you can articluate why you didn't retreat (the door was blocked, three guys were beating the tar out of me, I have bad knees, etc.), then you should be in good shape. Disclaimer: I'm not a lawyer.

bj · Post by bj » Sat Jun 17, 2006 6:32 pm

Just maby a castle doctrine would be of use in this situation B.J.

longtooth · Post by **longtooth** » Sat Jun 17, 2006 7:18 pm

Yea Buddy.

Post by **Charles L. Cotton** » Sat Jun 17, 2006 7:27 pm

bauerdj wrote:Very interesting question - what would satisfy the duty to retreat when the person attacked is aged and/or infirm. I am guessing here but I think it has something to do with disparity in force.

One reason I find this question interesting is I am in the same age/physical limitation situation.

Charles, could you comment on this subject?

Dave B.

It's been a good while since I've looked at the case law on this issue, so I can't give you a case cite. The short answer is the duty to retreat applies if you can do so safely, without increasing the danger you face. This applies to everyone, not just people with physical limitations. An able-bodied track star doesn't have to turn and run, if he/she will be shot in the back doing so. A person with a physical limitation doesn't either. Physical limitations, like medical conditions, can make retreat unreasonable whereas an able-bodied person might be able to safely retreat.

Texas needs to be a "true man" state; i.e. no duty to retreat wherever one may be threatened with deadly force.

Regards,
Chas.

longtooth · Post by **longtooth** » Sat Jun 17, 2006 7:40 pm

again.

Skipper5 · Post by **Skipper5** » Sat Jun 17, 2006 8:25 pm

I remember during our CHL class....our instructor went over this point and indicated the under TX law....there is no need to retreat....and I have seen the actual wording along the way before....

Would agree with "one eyed" ...if it is the law; your physical condition (and or ability to retreat) is not germaine.

Not a lawyer though....

txinvestigator · Post by **txinvestigator** » Sat Jun 17, 2006 8:42 pm

Skipper5 wrote:I remember during our CHL class....our instructor went over this point and indicated the under TX law....there is no need to retreat....and I have seen the actual wording along the way before....

Would agree with "one eyed" ...if it is the law; your physical condition (and or ability to retreat) is not germaine.

Not a lawyer though....

If a reasonable person in your situation would have retreated, then you must too. In fact, I would say it IS a requirement considering this wording;

(b) The requirement imposed by Subsection (a)(2) does not
apply to an actor who uses force against a person who is at the time
of the use of force committing an offense of unlawful entry in the
habitation of the actor.

That said, the resonable person part applies to a person in your exact circumstance.

Here are two scenarions I use as examples;

1. You are in your home and hear a horn honking from in front of your house, and you hear yelling. You open the door to find a man in the street, with a baseball bat threatening to "smash your head in". He stays in the street.

Would a reasonable person retreat by going in the house? Of course. Even if he approaches your front door, IMO, a reasonable preson would CLOSE THE DOOR. If he tries to gain entry, now things have changed.

2. You have a "traffic altercation" with somone. He pulls over so you do too. You stop two car lengths back and he gets out of his car with a tire tool. What would a reasonable person in that situation do? Drive away, thats right.

Photoman · Post by **Photoman** » Sat Jun 17, 2006 9:51 pm

My question is...why wouldn't you retreat? If it's safe to do so, by all means retreat.

Distance is my friend!

bauerdj · Post by **bauerdj** » Sat Jun 17, 2006 10:01 pm

Skipper5 wrote:Would agree with "one eyed" ...if it is the law; your physical condition (and or ability to retreat) is not germaine.

Not a lawyer though....

Since the requirement is based on 'would a reasonable person (in the same exact circumstances) retreat' physical condition as it impacts on your ability to retreat would seem to be germane. If threatened by a man with a club, it would probably be reasonable to expect an olympic athelete to retreat, it would be less reasonable to expect a man in a wheelchair to retreat.

Dave B.

one eyed fatman · Post by **one eyed fatman** » Sat Jun 17, 2006 10:18 pm

Photoman wrote:My question is...why wouldn't you retreat? If it's safe to do so, by all means retreat.

That was not the question asked. The question asked was do I have to. That answer is no.