Self-defense: Does a criminal have the right to retreat?

Looking at self-defense videos, it appears that the approach of gun owners is to hold an intruder at gunpoint and order him to lie down until police can arrive.

But since, generally, self-defense shooting only applies if the criminal poses a threat, then can’t the perp say “I am going to back slowly out your door and you can’t stop me” and then leave? I believe there have been instances where a gun owner got in trouble for shooting at a fleeing crook, haven’t there?

The criminal has the right to escape. The home owner can only shoot in self defense. The home owner has the authority of a citizen’s arrest, but there is no crime of “resisting a citizen’s arrest”.

So, the criminal can use minimal force to resist his capture by the home owner. But the fact that he/she has already broken into the house, it would be easy for the home owner to be in fear of great bodily harm or death when the criminal starts shoving or punching to effect the escape. It’s a fine line to be sure.
But legally, the burglar could run away. A citizen can’t usually shoot a fleeing felon. Hell, if the criminal escaped with a tv, he/she still can’t be legally shot to protect property.

And of course, in states with SYGL and Castle Doctrine, the citizen could very easily justify the shooting merely for the burglar’s presence in the home, since said presence is enough to justify a fear of death or great harm.

Plus, the jury would never hear about what the burglar said prior to the escape attempt.


I’m sure that in a country as big as ours, there have been some instances where a gun owner got in trouble for shooting at a fleeing crook. Likewise, there have been some instances where they did not get in trouble for doing so: Joe Horn rather famously shot two burlgars who were leaving a neighbor’s house (“Move, and you’re dead”) and was no-billed by the grand jury.

Self-defence generally recognises that a person has the right to what is necessary for the circumstances to protect oneself, others and property from unlawful actions. In the same way when perfoming a citizens arrest, only necessary restraints can be used, It must be stressed that only what is necessary is permitted, not anything more. If you catch a burglar, tie him up while you are waiting for the cops, using that as an opportunity to smack him senseless will probably not be seen as “necessary”, under self-defence or citizens arrest.

On the other hand for self-defence, the law will usually allow a bit of leeway for understandable overreaction.
Shooting an escaping invader on its own is not enough to vitiate self-defence.

I don’t believe this is always true. I believe that in some cases a citizen’s arrest allows the citizen to use reasonable force to keep the suspect in custody.

That said, I doubt most courts would see shooting somebody in these circumstances as reasonable force. If you tell somebody that you’re placing them under citizen’s arrest and they start walking away from you and the only means you have of stopping them is shooting them, you better let them walk away.

And I believe if the person does walk away after being placed under citizen’s arrest and is later arrested by the police, he can be charged with an additional crime.

Keep in mind the laws and precedents on citizen arrests vary widely from state to state.

These two things are not mutually exclusive. The citizen can use minimal necessary force, but not deadly force, to effect the citizen’s arrest. The criminal, however, has no legal responsibility to comply with the arrest. The criminal can legally use the same level of force to resist the citizen’s arrest. Resisting an arrest with force is a felony. Resisting a citizen’s arrest with force is legal.
Varies by state, I’m sure. I am most familiar with Florida.

In Florida, for a citizen to do a citizen’s arrest, he/she must personally witness the commission of the felony and know it was a felony. There is no “citizen’s detention” and any detention by a citizen must meet the requirements of a citizen’s arrest, or the detainer can be criminally and civilly liable. The citizen can use reasonable force to apprehend the felon, but the felon can legally resist it. It can get tricky when the felony is a theft. If the felon tries to steal something valuable, it is just theft. It can be a felony, but still just theft. If the felon uses force (or threat of force) to do the stealing, then it becomes a robbery.
If there is a citizen’s arrest attempt, and the criminal uses force to resist while possessing the stolen goods, then it becomes a robbery. If the criminal drops the goods and runs away, then the physical force used to resist the citizen’s arrest becomes legal, as long as it is not excessive.

So, does a home owner have to believe that a criminal will tell the truth, and actually do as he says?

In any case, rarely is there time for a conversation to take place, and there shouldn’t be. If a criminal breaks into your home, and you believe he is a threat, you shoot as soon as you have a safe target. Doing anything else is risky. Maybe he has a gun in his other hand and will turn and shoot you.

Dont cover him and say “Stop or i will shoot”. Just shoot as soon as you know he is a threat.

At that point, wouldn’t it be fair to say that it’s no longer self defense, and instead would be treated as a citizen’s arrest? I believe you are allowed to use reasonable force to detain someone until police arrive if you are witness to certain types of crimes.

Even in Aus, where guns are slightly unusual, and must be locked up, and shooting someone would surely get you into all kinds of trouble —even in Aus it is accepted that a reasonable person might be terrified and panic stricken in a situation like that. And the rule for ‘self defence’ depends on what a reasonable person would do. Running after them with a baseball bat == bad. Shooting them when they don’t obey == maybe.

Texas law allows you to use deadly force to protect property if you would be justified in using force, and you reasonably believe it is immediately necessary to prevent the imminent commission of specific enumerated property crimes. These are arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime.

Step 1: The jury must find that you were justified under Texas Penal Code section 9.41 to use force to stop a trespasser or an interference with your property.
Step 2: The jury must decide whether you had a reasonable belief that deadly force was immediately necessary to prevent a perpetrator from fleeing immediately after committing a burglary, robbery, aggravated robbery, or theft during the nighttime.
Step 3: The jury must find that when you used deadly force to protect property, you reasonably believed it could not have been protected or recovered by other means; or using something less than deadly force would expose you to a substantial risk of death or serious bodily injury.

Basically, in Texas you can probably shoot em even if they run if it’s at night. “I thought he had my wallet”.

In a situation like the OP describes, wouldn’t the gun owner be legally justified to shoot, if s/he was fearful that the intruder will run to bring her/his accomplice(s) over or get weapons hidden away outside or just run to the neighbors house to hold someone else hostage?

The legal standard is supposed to be that you face a reasonable threat. Saying you can imagine a possible scenario in which a person running away from you might be a threat shouldn’t meet that standard.

But with a good lawyer and some positive publicity, who can say?

This is also a good reason to remain silent and tell your story after your lawyer forces the prosecution to turn over all their evidence during discovery.

That way you can tell a story consistent with the facts. “see, I shot him first, and then he turned around and I musta kept shooting. He managed to make it a few steps outside my yard before collapsing.”

Thanks Little Nemo, that makes sense. As a follow up : Is the burden of proof on the gun owner to demonstrate that s/he was facing reasonable threat or is it the Prosecution’s job to prove that s/he was not facing any reasonable threat ?

No, it must be an immediate threat. The jury gets to decide what “immediate” means, but I doubt you’d convince them that it includes someone going away to gather his posse.

Good post, but what you wrote is not entirely accurate in practice: Joe Horn shooting

As the defendant, you are innocent until proven guilty. But in this case, you’re going to be acknowledging that you shot the guy. So now you have to prove that you had legal justification - ie self-defense - for doing so. (This is known as an affirmative defense, where the defendant is seeking to prove something in order to be acquitted. Another well-known affirmative defense would be an insanity plea. Other examples might be entrapment or necessity.)

My understanding is that the weight of evidence that is required to prove a claim of self-defense varies from state to state. I believe the most common standard is that there must be a preponderance of evidence - which means that there’s more evidence showing that the defendant’s claims are true than there is showing that they aren’t.

Well, that case was presented to a Grand Jury… in Texas. Where until moderately recently “that man needed killin” was a possible defense.

So the DA thought that Horn had committed a crime.

What about this scenario: A citizen witnesses a person commit an actual felony. The citizen places the person under citizen’s arrest and uses reasonable, non-deadly force to effect the arrest. The arrestee uses potentially deadly force to resist the arrest. What can the arresting citizen do next?