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View Diary: Excellent Informative Article re: Jordan murder (9 comments)

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  •  Not really (0+ / 0-)

    One, the duty of retreat only has to deal with acts after the claimant comes to believe he's in danger.  Otherwise, you end up convictions for no other reason than the defendant "shouldn't have walked through a bad neighborhood."

    Morever, the duty to retreat after that belief has crystalized is...well...flexible.

    http://scholarship.law.stjohns.edu/...

    Still, even in jurisdictions that mandate it, retreat is required in few circumstances. For instance, it is recommended only where the actor can attempt escape without increasing her own peril.27 This subjective standard focuses on what a person knew in fact at the time, rather than "whether defendant 'could have retreated' with complete safety" looking at the totality of circumstances in hindsight.28 One need not calmly evaluate exit strategies when faced with pressing danger, for "[d]etached reflection cannot be demanded in the presence of an uplifted knife."29 Nor is fleeing ever required when threatened with a firearm.30 New York, moreover, construes necessity liberally,31 with the result that deadly force may be justified more readily without retreat than in other states.32 Additionally, fleeing is often the province of those who have played some active role in
    escalating matters. 33 In sum, these facts paint retreat as a tool of conflict avoidance rather than one of improvised escape.  Retreat's role in the self-defense context is more theoretical than practical.

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