Sat 01 Oct, 2022 Criminal Defense

Can You Stand Your Ground In New York?

New York gets a bad reputation in some circles for having self-defense laws that don’t allow people to stand their ground when confronted with deadly physical force. 

Although New York does impose a duty to retreat in certain situations, in other situations a person can completely stand their ground when confronted with deadly physical force. 

I’m going to broadly go over the situations where a person must retreat and the situations when a person doesn’t have to retreat. As you’ll see, people can stand their ground in most situations when you’d naturally expect a person to be able to rightfully stand their ground. Because of that, defendants charged with Murder, Attempted Murder, or felony assault oftentimes have great self-defense claims after they stood their ground.

What is Stand Your Ground?

So, what is “Stand Your Ground” law? What is “Duty To Retreat” law?

Stand Your Ground law, which is the law in many states, says that when you are confronted with deadly physical force, you don’t have to retreat even you can do so. So, if you are walking down the street and someone walks by, pulls out a gun, and starts shooting at you, you don’t have to run. If you are armed, you can pull out a gun and shoot back so long as you reasonably think it’s necessary to defend yourself from the deadly physical force of the other person.

Duty to Retreat laws, on the other hand, say that if you know that you can safely retreat with complete personal safety from a scenario like I just described, then you are obligated to do so, and you can’t use deadly physical force.

Duty to Retreat in New York

Although New York generally imposes a duty to retreat, in many situations, a person is not actually obligated to retreat, and they can legally stand their ground.

Before I get into the exceptions to the duty to retreat, let me provide a bit more groundwork or foundation to the duty to retreat.

Actual Knowledge of a Safe Retreat

First off, a person needs to have actual knowledge that they can retreat from a situation with complete personal safety. So, the question isn’t whether the person could in fact have retreated with complete personal safety; the question is whether the person knew that they could safely retreat.

So, in the first example I provided, where somebody walks by you in broad daylight, pulls out a gun, and shoots at you unless you actually know of a way to retreat with complete safety, you could pull out a weapon and use deadly force to protect yourself. Whether you actually knew of a way to retreat from a situation with complete safety will be completely dependent on the unique circumstances of your case. In many situations you can think of, you wouldn’t necessarily know of a way to escape a situation with complete safety. The sort of example I can think of where you could retreat with complete safety would be if you were shot at in the subway, and you were able to get into a train whose doors were closing, and the assailant was too far from the train to get on it before the doors closed.

An important thing to keep in mind is that, ultimately, if you have to go to trial, a jury is going to hear about your case. Practically speaking, if a jury hears that you were minding your own business, you were shot at by a stranger, and you then defended yourself with deadly physical force, the jury is going to see you as the victim, not the perpetrator, and they will likely want to side with you and not develop some complicated plan of escape they think that you should have known about when you were attacked.

Only Applies to Deadly Physical Force

A second important point is that Stand Your Ground only applies to deadly physical force, not physical force that isn’t deadly. So, you can stand your ground to defend yourself if someone just throws punches at you and you throw punches back. Also, if you are in a fistfight, and the other person brings out a weapon, the question of whether you could safely retreat is dependent on the circumstances when the assailant pulled out a weapon, not when the fistfight first started.

Exceptions

Now that I’ve laid the groundwork for the Duty to Retreat, let’s talk about the exceptions where the Duty to Retreat does not apply.

The duty to retreat does not apply if someone else is using deadly physical force inside of your home and you are not the initial aggressor. You don’t have to run to a different room or leave your home. You can stand your ground.

The duty to retreat does not apply if you use deadly physical force against a person who is committing a burglary in your home or arson of any building.

The duty to retreat also does not apply if you are using deadly physical against a person who is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act, or robbery.

So, given all these exceptions, as well as the fact that you only have duty to retreat in New York if you actually know that can retreat with complete safety, you can stand your ground in New York in basically every instance where you should be able to do so. New York’s duty to retreat law is essentially a way to try to encourage people to de-escalate deadly conflict as opposed to encourage it. When a person uses deadly physical force to defend themselves against deadly physical force, they will usually have a solid self-defense claim that is supported by the law.

Need Help?

If you or a loved one has been charged with murder, attempted murder, or felony assault in New York after acting in self-defense, give me a call for a free consultation. I can assess your case to determine the right legal strategy to get the best possible outcome.