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Retreat ruling: Self-defense in state law

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The sensational murder-manslaughter trial of neighborhood watchdog, George Zimmerman in Florida, concluding with a not guilty verdict in mid-July, attracted worldwide attention. Self-defense asserted by Zimmerman as a justification for his killing of unarmed African-American teenager, Trayvon Martin, was the centerpoint of his acquittal.

Shortly before the high-profile case played out in Florida, the Minnesota Court of Appeals decided a much lower-profile case dealing with the doctrine of self-defense. Although given sparse attention, the Minnesota matter sheds some light on the law of self-defense in this state and some other jurisdictions as well.

Retreat rationale

The concept of self-defense is predicated upon reasonable behavior in the face of actual or perceived aggression or threat of bodily harm. It allows an individual in these circumstances to use reasonable force for self-protection.

The concept has been recognized in Anglo-Saxon laws for centuries, is reflected in ancient Roman law and dates back to the Old Testament. While it is well-known, some of its features are not universally followed.

Generally, an individual seeking to engage in self-defense must retreat or withdraw, if reasonable, before using bodily force. The rationale for retreat is that an individual should engage in self-defense only as a last resort if other measures of avoiding injury are feasible.

That principle, however, is not recognized in nearly half of the jurisdictions that follow the “Stand Your Ground” doctrine abrogating the need for withdrawal or retreat before undertaking self-protective behavior, regardless of the location.

Florida is one of more than 20 states that follow this precept. But it was not invoked in the Zimmerman defense, which one of his attorneys described as a “classic” self-defense case. The defense contended that Zimmerman was attacked and knocked to the ground by the youth and could not “retreat,” even if he wanted to or had to do so, a proposition with which the jury evidently agreed.

Minnesota is not one of the jurisdictions with this provision. The Legislature passed a “Stand Your Ground” measure in 2012. But it was vetoed by Gov. Mark Dayton, leaving Minnesota among about two dozen jurisdictions that do not recognize that part of the common law of self-defense, which is codified in Minn. Stat. sec. 609.05 and sec. 609.065.

Another recurring issue in self-defense is whether the duty to retreat exists in a residential setting. Most jurisdictions dispense with the retreat requirement in a residential setting, but some apply it when engaging in self-defense against a co-residence or co-occupant of the home.

That restriction, however, is not recognized in Minnesota, which follows the majority rule dispensing with the duty to retreat in one’s own abode. As explained by Justice Paul Anderson in State v. Glowacki, 630 N.W.2d 392, 401 (2001): “to retreat from the home before acting in self-defense would require one to leave one’s safest place.” Eschewing the doctrine of residential retreat, the Court in Glowacki, held that “a person should not be required to retreat from the home before using reasonable force to defend himself, regardless of whether the aggressor is rightfully in the home.” The Court, instead, adopted the rule that there is “no duty to retreat from one’s own home when acting in self-defense … regardless of whether the aggressor is a co-resident.” 630 N.W.2d at 401.

But the duty to retreat in a residence does not negate the obligation to “act reasonably when using force in self-defense.” Thus, the issue of self-defense in Minnesota, regardless of a duty to retreat, boils down in the terminology of Glowacki to “the reasonableness of the use of force and the level of force under the specific circumstances of each case.”

Residential ruling

These threads were woven together this spring by the Minnesota Court of Appeals in State v. Smith, 2013 WL 2301833 (Minn. App. May 28, 2013)(unpublished). Affirming a verdict by an Anoka County District Court jury, the appellate tribunal held that the duty to retreat was applicable in a case against a 36-year old man who battered his 80-year-old father in a home they formerly shared.

The action arose when the son, who had moved out of the home a while ago, returned to help his father, described as “an avid gun collector,” clean up a hoarding mess. An altercation ensued, which the son blamed on the father for pointing a gun at him. The son wrestled it away from his father, hit him with the firearm, kicked him, threatened to cut his throat, smashed a guitar over his head and fired gunshots into the walls before the episode ended in charges of attempted murder, assault and making terroristic threats.

He was charged with second-degree murder, as well as assault and terroristic threats, and was convicted on the assault and terroristic counts. The son challenged the conviction on grounds that the trial court erroneously instructed the jury that he had a duty to retreat before engaging in what he claimed was self-defense.

His failure to object to the instruction at trial invoked the “plain error” doctrine, which requires showing that there was a clear mistake that “affected his substantial rights. But he could not do so because the instruction “certainly is not plainly erroneous.” Although retreat is not required in one’s own residence, even when shared with the aggressor, the assailant’s contention “fails on the facts.”

Because the son had moved out of the house before the incident and had been living “somewhere” else, he was “merely a guest” in his father’s home at the time of the altercation. That he was not a co-resident or co-occupant negated his claim of the inapplicability of duty to retreat.

Accordingly, the instruction by the trial judge on the son’s duty to retreat was correct, and the conviction was upheld.

The defendant’s nearly three dozen other claims also were rejected, including his challenge to the effectiveness of his trial counsel. His assertions primarily related to items that were “inconsequential or matters of strategy.” Furthermore, his attorney achieved a substantial victory by obtaining acquittal on an attempted-murder charge, which “implies effectiveness.” A 12-year sentence, an upward departure from the presumptive 86-month sentence, was also affirmed on grounds that the father was “particularly vulnerable” and that the son exercised “particular cruelty” during the incident.

The Martin-Zimmerman case in Florida reflects the controversial narrative of some self-defense cases. But this Minnesota case shows how the elements of the doctrine are not always easy to apply.

Perspective Pointers:

Three other Minnesota self-defense cases

  • State v. Wood (1998): Self-defense not applicable to defend someone else;
  • State v. Carothers (1999): No duty to retreat in home;
  • State v. Bard (2002): No duty to retreat in home is retroactive.

 

Originally published in the 7/29/2013 edition of MinnLawyer.