# Self-defense: Does a criminal have the right to retreat? **URL:** \ **Category:** Factual Questions\ **Created:** [September 15, 2019, 5:54pm UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277 "2019-09-15T17:54:55Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [September 16, 2019, 7:25pm UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/21 "2019-09-16T19:25:08Z")
> [@Ynnad](#): > > 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? I’m not a lawyer and laws vary from state to state and all that. But I would say that if a person is trying to use deadly force to carry out an illegal act (such as resisting a legal arrest) another person is justified in using force to stop them. Can they use deadly force? Maybe. But they’re going to have to show that deadly force was necessary and they couldn’t have achieved the same goal with some lesser amount of force. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [September 16, 2019, 7:26pm UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/22 "2019-09-16T19:26:54Z")
OK, but in general, as long as the robber/burglar lets go of the stolen property and proposes walking away barehanded, the homeowner can’t shoot the bad guy, even if he’s ordering the bad guy at gunpoint to stay motionless on the floor, right? Him having your wallet in his hands complicates matters, but let’s say he isn’t taking your stuff anymore. ---
**Author:** ![SamuelA](https://avatars.discourse-cdn.com/v4/letter/s/c77e96/32.png) [@SamuelA](https://boards.straightdope.com/u/SamuelA)\ **Post date:** [September 16, 2019, 7:33pm UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/23 "2019-09-16T19:33:05Z")
> [@DrDeth](#): > > 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. This isn’t how the grand jury system works. The DA is permitted to present ONLY evidence in favor of the indictment. The defense has no right to present evidence and not all evidence in a case has to be presented. As long as some evidence supporting indictment exists, the grand jury is going to indict. It is normally just a rubber stamp for the DA. But in hot cases where the DA does not want to proceed with prosecution but also doesn’t want to appear soft on crime (it’s an elected public office), the DA will instead present the defenses case as well. In fact, they may spend more time presenting for the defense than for their “own” case. That’s what happened hear. DA didn’t want to try to prosecute a man for killing two Columbian criminals. But because of the political heat, didn’t want to be seen dropping the case. ---
**Author:** ![Machine\_Elf](https://avatars.discourse-cdn.com/v4/letter/m/82dd89/32.png) [@Machine\_Elf](https://boards.straightdope.com/u/Machine_Elf)\ **Post date:** [September 16, 2019, 8:28pm UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/24 "2019-09-16T20:28:45Z")
> [@Velocity](#): > > OK, but in general, as long as the robber/burglar lets go of the stolen property and proposes walking away barehanded, the homeowner can’t shoot the bad guy, even if he’s ordering the bad guy at gunpoint to stay motionless on the floor, right? If he’s across the room from you, near the door, and he elects to get up and move toward the door, then I think the law says that’s murder. If you’re between him and the door, close to him, and he gets up, then at that point you may fairly argue that he constitutes an immediate threat to your safety and could credibly argue that you shot him in self-defense. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [September 16, 2019, 8:34pm UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/25 "2019-09-16T20:34:27Z")
> [@Machine\_Elf](#): > > If he’s across the room from you, near the door, and he elects to get up and move toward the door, then I think the law says that’s murder. > > If you’re between him and the door, close to him, and he gets up, then at that point you may fairly argue that he constitutes an immediate threat to your safety and could credibly argue that you shot him in self-defense. This. The Tueller drill should figure prominently in your defense in the latter case. ---
**Author:** ![mikecurtis](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mikecurtis/32/3284_2.png) [@mikecurtis](https://boards.straightdope.com/u/mikecurtis)\ **Post date:** [September 16, 2019, 8:50pm UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/26 "2019-09-16T20:50:11Z")
Tueller is based on a person with a holstered weapon vs a person with a knife drawn. Doesn’t apply in \*\*Velocity’\*\*s hypo. mc ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [September 16, 2019, 9:15pm UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/27 "2019-09-16T21:15:14Z")
> [@SamuelA](#): > > This isn’t how the grand jury system works. The DA is permitted to present ONLY evidence in favor of the indictment. The defense has no right to present evidence and not all evidence in a case has to be presented. As long as some evidence supporting indictment exists, the grand jury is going to indict. > > It is normally just a rubber stamp for the DA. > > But in hot cases where the DA does not want to proceed with prosecution but also doesn’t want to appear soft on crime (it’s an elected public office), the DA will instead present the defenses case as well. In fact, they may spend more time presenting for the defense than for their “own” case. > > That’s what happened hear. DA didn’t want to try to prosecute a man for killing two Columbian criminals. But because of the political heat, didn’t want to be seen dropping the case. I was on the GJ, I know full well how it works. The DA presented his case, and the GJ considered it, and didnt return a true bill, a indictment. That’s what we know. We dont know what the DA presented in this case. You dont either. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [September 16, 2019, 10:08pm UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/28 "2019-09-16T22:08:53Z")
> [@Velocity](#): > > OK, but in general, as long as the robber/burglar lets go of the stolen property and proposes walking away barehanded, the homeowner can’t shoot the bad guy, even if he’s ordering the bad guy at gunpoint to stay motionless on the floor, right? Imagine a police officer places you under arrest and puts you in the back of his patrol car while he attends to some related duties like securing the crime scene. And you decide you’d rather be somewhere else, so you get out of the patrol car and start walking away. You’re peaceful and everything but you’re committing a crime. Depending on the circumstances it might be evading the police, resisting arrest, or even escaping from custody. You might be committing a more serious felony than whatever it was you were originally arrested for. And the police officer does not have to let you walk away just because you’re acting peaceful. So the answer to your question is; it depends. What do local laws have to say about a citizen’s arrest and how closely are they related to a regular arrest by a police officer? ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [September 16, 2019, 10:18pm UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/29 "2019-09-16T22:18:10Z")
> [@mikecurtis](#): > > Tueller is based on a person with a holstered weapon vs a person with a knife drawn. Doesn’t apply in \*\*Velocity’\*\*s hypo. > > mc A knife is only the most common example of a melee weapon. It’s certainly not the only one. Even if the home invader is unarmed, an adult male can do critical damage with a single punch, and the Tueller Drill is useful for illustrating how quickly someone can close the distance and strike you, [potentially](https://www.oregonlive.com/portland/2015/07/one-punch_killings_they_happen.html) [fatally](http://stoponepunchcankill.org/). ETA: If the hypothetical were to play out in my home, I’d give a warning along the lines of “if you stand up, I’m going to open fire” and follow through on that. I suppose he could wriggle out of the house on the ground, like a worm, as long as it was away from me and not towards me. ---
**Author:** ![SamuelA](https://avatars.discourse-cdn.com/v4/letter/s/c77e96/32.png) [@SamuelA](https://boards.straightdope.com/u/SamuelA)\ **Post date:** [September 16, 2019, 10:30pm UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/30 "2019-09-16T22:30:52Z")
> [@DrDeth](#): > > I was on the GJ, I know full well how it works. The DA presented his case, and the GJ considered it, and didnt return a true bill, a indictment. That’s what we know. > We dont know what the DA presented in this case. You dont either. Yes we do. The DA could simply present it as “man shot two people in his front yard after being told not to by 911 operators. One was shot in the back.” The DA did NOT have to mention the victims were criminals, convicted felons, carrying bags of stolen jewelery from burglarizing nearby homes. NOR did the DA have to mention the forensic evidence wasn’t certain on the back shooting. Or even that a law existed that might be an affirmative defense to the charge! None of that was required. DA can indict almost anyone for almost any reason. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [September 16, 2019, 10:35pm UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/31 "2019-09-16T22:35:01Z")
> [@SamuelA](#): > > Yes we do. The DA could simply present it as “man shot two people in his front yard after being told not to by 911 operators. One was shot in the back.” > > The DA did NOT have to mention the victims were criminals, convicted felons, carrying bags of stolen jewelery from burglarizing nearby homes. > > NOR did the DA have to mention the forensic evidence wasn’t certain on the back shooting. Or even that a law existed that might be an affirmative defense to the charge! > > None of that was required. DA can indict almost anyone for almost any reason. Yes, he\* could\* have done any of that. He could have done the hokey pokey, also.:rolleyes: But we _dont know_ what evidence was presented, as GJ proceedings are sealed. **The DA presented his case, and the GJ considered it, and didnt return a true bill, a indictment. That’s what we know.** ---
**Author:** ![SamuelA](https://avatars.discourse-cdn.com/v4/letter/s/c77e96/32.png) [@SamuelA](https://boards.straightdope.com/u/SamuelA)\ **Post date:** [September 16, 2019, 11:08pm UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/32 "2019-09-16T23:08:03Z")
> [@DrDeth](#): > > Yes, he\* could\* have done any of that. He could have done the hokey pokey, also.:rolleyes: > > But we _dont know_ what evidence was presented, as GJ proceedings are sealed. > > **The DA presented his case, and the GJ considered it, and didnt return a true bill, a indictment. That’s what we know.** We \*know \*the DA purposefully presented exculpatory evidence. I have read the DA _only_ bothers when they _want_ a no-bill. Any experienced grand jury will know which cases they are supposed to indict and which they aren’t. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [September 17, 2019, 12:23am UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/33 "2019-09-17T00:23:55Z")
In Alaska, you can shoot a fleeing burglar through an open window, and not be convicted. . > [@](#): > > Mielke’s trial didn’t focus on who fired the shots, because Mielke acknowledged having shot the men. The point of contention was whether Mielke acted reasonably > > He testified he feared for his life when he initially fired, and was carried away seconds afterward when he emptied his .44-caliber pistol through a church window at a fleeing man. Mielke said during testimony that he was in such a state of panic that he fired two or three times after the gun was empty, pulling the trigger so hard that his finger was black and blue the next day. > **[Jury finds Big Lake pastor not guilty](https://www.frontiersman.com/news/jury-finds-big-lake-pastor-not-guilty/article_7c3d7574-979a-548f-ad96-fdcd09aa5c80.html)** > > PALMER -- A superior court jury found Big Lake pastor Philip Mielke not guilty on all counts Monday in the shooting deaths of two men. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [September 17, 2019, 3:22am UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/34 "2019-09-17T03:22:40Z")
> [@SamuelA](#): > > We \*know \*the DA purposefully presented exculpatory evidence. I have read the DA _only_ bothers when they _want_ a no-bill. Any experienced grand jury will know which cases they are supposed to indict and which they aren’t. How do you know that? And there’s really no such thing as a _experienced grand jury_, even Civil GJ only serve for a year. Grand Jury proceedings are sealed. Unless you were ON that GJ, in which case you have violated the law. Ipso facto, you \*know \*nothing of the sort. So _cite_? [https://www.chron.com/neighborhood/pasadena-news/article/Joe-Horn-cleared-by-grand-jury-in-Pasadena-1587004.php](https://www.chron.com/neighborhood/pasadena-news/article/Joe-Horn-cleared-by-grand-jury-in-Pasadena-1587004.php) _District Attorney Ken Magidson said he couldn’t comment on the grand jury’s secret proceedings._ ---
**Author:** ![Mdcastle](https://avatars.discourse-cdn.com/v4/letter/m/958977/32.png) [@Mdcastle](https://boards.straightdope.com/u/Mdcastle)\ **Post date:** [September 17, 2019, 3:29am UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/35 "2019-09-17T03:29:56Z")
> [@DrDeth](#): > > 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. This. If there’s a home invader in my house that it not retreating, I am going to open fire. I’d rather risk facing a jury than risk facing the undertaker if the criminal pulls out a gun and shoots me in the middle of the second round of “What’s My Line”. My state isn’t de-jure Castle Dotrine, but in practice prosecutors will simply decline to file charges against obvious non-reatreating home invader scenarios; the only cases prosecuted in recent years were ones where A) A question of fact about whether the home invader actually was uninvited 2) Man keeps shooting after the threat to himself is obviously eliminated and is captured on surveillance doing so, and 3) Homeowner shot at intruders that had not only fled his house but were in a car fleeing the entire scene. ---
**Author:** ![Inigo\_Montoya](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/inigo_montoya/32/124_2.png) [@Inigo\_Montoya](https://boards.straightdope.com/u/Inigo_Montoya)\ **Post date:** [September 17, 2019, 1:45pm UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/36 "2019-09-17T13:45:22Z")
> [@Mdcastle](#): > > This. > > If there’s a home invader in my house that it not retreating, I am going to open fire. I’d rather risk facing a jury than risk facing the undertaker if the criminal pulls out a gun and shoots me in the middle of the second round of “What’s My Line”. The philosophy I was taught was: nobody knows you’ve got a gun until they’re getting perforated. Any other approach is just begging for the other guy to escalate on their own terms the situation they’ve boxed you into. To the OP: the key idea is “boxed”. If the intruder is on his way out and is no longer a threat then be grateful you were only burgled or whatever and call it a day. I don’t think I’d be able to stick to that code if he’s already harmed someone under my roof though. ---
**Author:** ![fedman](https://avatars.discourse-cdn.com/v4/letter/f/278dde/32.png) [@fedman](https://boards.straightdope.com/u/fedman)\ **Post date:** [September 19, 2019, 1:38pm UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/37 "2019-09-19T13:38:41Z")
> [@Velocity](#): > > 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? do you remember years ago when a Korean shopkeeper in LA shot a Black shoplifter in back of head while she was running down the street? She got off free ---
**Author:** ![Machine\_Elf](https://avatars.discourse-cdn.com/v4/letter/m/82dd89/32.png) [@Machine\_Elf](https://boards.straightdope.com/u/Machine_Elf)\ **Post date:** [September 19, 2019, 2:29pm UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/38 "2019-09-19T14:29:15Z")
> [@fedman](#): > > do you remember years ago when a Korean shopkeeper in LA shot a Black shoplifter in back of head while she was running down the street? She got off free If you’re thinking of this case: > **[Killing of Latasha Harlins](https://en.wikipedia.org/wiki/Death_of_Latasha_Harlins)** > > Latasha Harlins (January 1, 1976 – March 16, 1991) was a Black girl who was fatally shot at age 15 by Soon Ja Du (Korean: 두순자), a 49-year-old Korean American convenience store owner. Du was tried and convicted of voluntary manslaughter over the killing of Harlins, based in part on security camera footage. The judge sentenced Du to 10 years in state prison but the sentence was suspended and the defendant was instead placed on five years' probation with 400 hours of community service and payment ... It’s not as simple or clear-cut as you describe. The victim was not running down the street; she was shot at a range of one meter immediately after an altercation with the shop owner. The shopowner was tried and convicted of voluntary manslaughter. Although the jury recommended the max sentence (15 yrs), the judge went easy on her, sentencing her to probation, 400 hrs community service, and a $500 fine. A week before the '92 riots, a state appeals court upheld the sentence, and this is seen as one of the precursors to those riots. ---
**Author:** ![CookingWithGas](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cookingwithgas/32/485_2.png) [@CookingWithGas](https://boards.straightdope.com/u/CookingWithGas)\ **Post date:** [September 19, 2019, 3:18pm UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/39 "2019-09-19T15:18:56Z")
> [@Machine\_Elf](#): > > The victim was not running down the street; she was shot at a range of one meter immediately after an altercation with the shop owner. Yes, although she was shot in the back of the head, was unarmed, and the altercation was physically escalated by the shopowner first. The shopowner got no prison time for a crime where the jury recommended the maximum of 16 years. ---
**Author:** ![Machine\_Elf](https://avatars.discourse-cdn.com/v4/letter/m/82dd89/32.png) [@Machine\_Elf](https://boards.straightdope.com/u/Machine_Elf)\ **Post date:** [September 19, 2019, 4:15pm UTC](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277/40 "2019-09-19T16:15:51Z")
> [@CookingWithGas](#): > > Yes, although she was shot in the back of the head, was unarmed, and the altercation was physically escalated by the shopowner first. The shopowner got no prison time for a crime where the jury recommended the maximum of 16 years. You’ll get no argument from me regarding the leniency of the sentence. I mostly wanted to point out that she did not “get off free”, she was tried and convicted of manslaughter. The law was not only her side; the only reason she didn’t go to jail was because of a decision by a single person. [Previous page](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277.md?page=1) [Next page](https://boards.straightdope.com/t/self-defense-does-a-criminal-have-the-right-to-retreat/840277.md?page=3)