CRIMINAL LAW - JUSTIFICATION DEFENSE - DEADLY PHYSICAL FORCE - FAMILY COURT
IF DUTY TO RETREAT MAY NOT BE EXERCISED SAFELY, ONE MAY IGNORE IT AND RESPOND
TO DEADLY PHYSICAL FORCE IN LIKE MANNER
] | [ISSUES & DISPOSITION
| [AUTHORITIES CITED
] | [COMMENTARY
On May 7, 1992, the 13 year old defendant was walking home with two friends
when a group of ten to fifteen boys and girls from her school confronted
her. Defendant was threatened verbally, then one girl after another ran
up behind her, and hit her on the head. Defendant's companions fled to
a nearby subway station for safety, but defendant, fearing that she might
get trapped or thrown onto the subway tracks, decided to continue walking.
She noticed a kitchen knife on the sidewalk, and placed it inside of her
jacket. Another girl approached the defendant from behind and hit her.
Defendant then turned toward the group and began fighting with the complainant
until the two either fell or were pushed to the ground by the group of
boys and girls. While on the defendant, the complainant punched her head
and chest. Members of the group cheered and kicked defendant's body, head,
and face. Defendant estimates that she was beaten for five to eight minutes
before she "'couldn't take it anymore.'" She removed the knife from her
jacket while she was still pinned to the ground, and stabbed the complainant
in the head and back. This continued until the police arrived.
The Family Court found that defendant "was assaulted  without provocation,'
was in fear' and was terrified'" by the attack. (Alteration in original).
Family Court found that defendant's failure to retreat to the subway station
was not objectively reasonable and thus rejected the defendant's justification
defense. The Appellate Division reversed. CPLR
§ 5601(a) requires that the Court of Appeals hear this case because
it originated in the Family Court and two judges dissented at the Appellate
Division on the determination of the appropriate legal standard for the
justified used of deadly physical force under Penal
Law § 35.15.
Whether a defendant, when confronted with deadly physical force may respond
with deadly physical force to defend herself, if she cannot safely exercise
her duty to retreat.
Yes. A unanimous court decided that defendant, when confronted with deadly
physical force, was justified in responding in like manner because she
could not retreat safely.
People v. Goetz, 68 N.Y.2d 96 (N.Y. 1986).
People v. McManus, 67 N.Y.2d 541 (N.Y. 1986).
People v. Watts, 57 N.Y.2d 299 (N.Y. 1982).
People v. Collice, 41 N.Y.2d 906 (N.Y. 1977).
Cited by Court
Craig v. State, 660 So.2d 1298 (Miss. 1995).
Culverson v. State, 797 P.2d 238 (Nev. 1990).
Fuller v. State, 620 So. 2d 669 (Ala. 1991).
People v. Bush, 111 N.E.2d 326 (Ill. 1953).
People v Turner, 269 P. 204 (Cal. 1923).
State v. Brown, 414 So. 2d 726 (La. 1982).
State v. Reese, 79 A. 217 (Del. 1911).
State v. Haakenson, 213 N.W.2d 394 (N.D. 1973).
Tice v. State, 382 A.2d 231 (Del. 1977).
State v. T.N., 650 So. 2d 288 (La. 1995).
Alabama Code 1975 § 13A-3-23(b).
Stat. § 11.81.335(b)
The Court of Appeals explained that a person may use proportional force
to defend herself against attack if she subjectively and reasonably believes
the use of such force is justified. Thus, one may justifiably use "deadly
physical force" to defend herself from what she "reasonably believes to
be the use or imminent use of unlawful physical force." Moreover, one may
justifiably use "deadly physical force" if she "reasonably believes that
such other person [attacking her] is using or about to use deadly physical
N.Y. Penal Law § 35.15
(McKinney 1987). Citing People v. Goetz
68 N.Y.2d 96 (N.Y. 1986), the Court emphasized that if a defendant attempts
to justify her use of force, the factfinder must determine three things
before it may agree. First, the factfinder must determine whether the defendant
subjectively believed the use of force was necessary. Second, the factfinder
must determine whether a person similarly confronted would have reasonably
believed the use of force was necessary. Citing Penal Law § 35.15(2)(a),
the Court explained the third requirement. When one believes that the use
of deadly force is justified, one has a duty to retreat before using such
force if one knows one can do so with complete safety. The Court noted
that the People bear the burden of disproving the justification defense.
Penal Law § 35.00; Goetz
, 68 N.Y.2d. at 116; People v. McManus
67 N.Y.2d 541, 546 (N.Y. 1986).
Applying the law to the present case, the Court of Appeals determined
that defendant was initially confronted with physical force and, therefore
had no duty to retreat. She was justified in responding with physical force
when she chose to turn and face her assailants. After defendant's assailants
surrounded her and threw her to the ground, the episode became deadly.
The court stated that defendant's duty to retreat arose at that instance.
Despite this legal trigger, defendant was unable to retreat safely; her
assailants had pinned her to the ground. Acknowledging this, the court
held that defendant was justified in using deadly physical force to defend
Survey of Law in Other Jurisdictions
ALABAMA: Alabama Code 1975 § 13A-3-23(b) disallows use of deadly force
in self-defense where it appears or the defendant knows that he can avoid
such force with complete safety by retreating. Moreover, use of deadly
force in self-defense may only be invoked in cases of imminent, and not
merely prospective, harm. Fuller v. State, 620 So. 2d 669 (Ala.
Stat. § 11.81.335(b) disallows use of deadly force in self-defense
"if the person knows that, with complete personal safety and with complete
safety as to others, the person can avoid the necessity of using deadly
force by retreating." The statute contains the traditional common-law exception
allowing self-defense in the defendant's domicile.
CALIFORNIA: If circumstances would lead reasonable person to believe that
he is in danger of death or great bodily harm, retreat is not necessary
before killing in self-defense against an attack. People v Turner,
269 P. 204 (Cal. 1928).
DELAWARE: State common law is still guided by the principle of State
v. Reese, 79 A. 217 (Del. 1911), which states that the defendant has
a duty to retreat if he can do so safely, or use other reasonable means
within his power to avoid killing his assailant. This principle was most
recently upheld by the state Supreme Court in Tice v. State, 382
A.2d 231 (Del. 1977).
ILLINOIS: Illinois has no requirement of retreat, where defendant is put
in apparent danger of his life or of great bodily harm. In such a case,
a defendant may repel "force with force,"even to the point of killing his
assailant, if necessary or apparently so, to prevent bodily harm. People
v. Bush, 111 N.E.2d 326 (Ill. 1953).
LOUISIANA: In Louisiana "there is not an unqualified duty to retreat,"
but "the possibility to escape is a recognized factor in determining whether
a defendant had the reasonable belief that deadly force was necessary to
avoid the danger." State v. Brown, 414 So. 2d 726, 729 (La. 1982);
State v. T.N., 650 So. 2d 288, 289 (La. 1995).
MISSISSIPPI: Mississippi denies the self-defense justification if the defendant
could have avoided the threat to his safety by escaping. Mississippi requires
a jury to find that "the danger was so urgent that the defendant had no
reasonable mode of escape," "before the jury . . . accept[s] the theory
of self-defense." Craig v. State, 660 So. 2d 1298, 1300 (Miss. 1995).
NEVADA: A person who is not the original aggressor has no duty to retreat
before using deadly force, if a reasonable person in the position of the
non-aggressor would believe that his assailant is about to kill him or
cause him serious bodily harm. Culverson v. State, 797 P.2d 238
NORTH DAKOTA: In North Dakota, there is no invariable duty to retreat to
safety, even where defendant had a full and ample opportunity to flee.
The reasonableness and fact of aggression by one party against the other
are circumstances which the jury may consider in deciding whether the right
of self-defense exists. Furthermore, flight is not required where it continues
or increases the danger. State v. Haakenson, 213 N.W.2d 394 (N.D.
Implications and Unanswered Questions
Trial level courts must clearly define the threshold burden of proof in
cases involving the use of physical force. In reaffirming Goetz
the New York Court of Appeals stated which parties bear the burden of proof
in determining an assault victim's use of physical force. The Family Court
in the present dispute failed to state whether the People had proved the
absence of the elements of the offered justification defense. Thus, it
was duly determined to have improperly shifted the burden of proof to the
appellant. Matter of Y.K.
, 624 N.Y.S.2d 243 (N.Y. App. Div. 1995).
Trial courts, as fact finders, are on notice to properly and clearly define
the burden of proof in their decisions.
Still unanswered with the court's decision in Matter of Y.K.
are (1) whether the test for an assault victim's duty to retreat is subjective
or objective, and (2) which party has the burden of proof concerning the
duty to retreat. Although knowledge of a possible safe retreat defeats
a justification defense, it is unclear from the court's decision whether
such knowledge is judged under a subjective or an objective test. The words
of Penal Law § 35.15(2)(a) imply a subjective test.
The knowledge of the particular party offering the justification defense
may be the proper test, or the court may look to the knowledge of a reasonable
person similarly situated. Moreover, the court has not indicated whether
the party offering the justification defense has the burden of proof regarding
the availability of retreat, or whether the People bear this burden.
Adam R. Fox, '96
H. Marlow Green, '97
Robert D. Grauer, '96
Edward M. Lilly, '96
Anne Myers, '97
Michael Peil, '97
Mary E. Windham, '97