Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 2. Intentional Harms
with appropriate force without risking prosecution for any crime for which intent is a requirement.
(The defendant may nonetheless be liable for those crimes for which proof of recklessness is
sufficient.) See Moor v. Licciardello, 463 A.2d 268, 270-71 (Del. 1983).
Which is the better approach? The American one? The Roman law rule, which now
seems likely to become the British rule as well? Or the criminal law standard? Why does the
criminal law approach differ from the usual common law rule for civil liability?
2. Reasonable escalation. Defense of one’s self privileges a person to use reasonable force
to defend against an unprivileged act, or the threat of an imminent unprivileged act, by another
that the person reasonably believes will cause them harm. A key limit here is that the force used
in self-defense must be “reasonable.”
In Martin v. Yeoham, 419 S.W.2d 937 (Mo. App. 1967), for example, the court held that a
defendant’s apprehension of bodily harm alone would not have justified the use of deadly force;
only apprehension of “imminent danger of death or great bodily harm” would have warranted the
use of a firearm in defense against the perceived threat. The basic test is whether the defendant’s
use of force was necessary given all the attendant facts and circumstances. As the Connecticut
Supreme Court put it, “The permissible degree of force used in self-defense depends on that
which is necessary, under all the circumstances, to prevent an impending injury.” Hanauer v.
Coscia, 244 A.2d 611, 614 (Conn. 1968).
In English law, and according to the Restatement authors, the necessity standard, properly
understood, includes an obligation to retreat before using deadly force if retreat is possible. See
RESTATEMENT (SECOND) OF TORTS § 63 (1965). This is the doctrine known as the “retreat to the
wall” rule. A number of American states, however, follow the so-called “true man” or “stand
your ground” rule, which allows the use of deadly force in response to imminent danger of death
or great bodily harm, even when the alternative of retreat exists. See, e.g., Boykin v. People, 45 P.
419 (Colo. 1896). Some states have even extended the stand-your-ground approach to allow
deadly force in self-defense without an obligation to make an available retreat by a person who is
himself a trespasser at the time. See, e.g., People v. Toler, 9 P.3d 341 (Colo. 2000). The
Restatement authors, by contrast, insist that such a duty to retreat will sometimes require that a
person surrender certain privileges to an attacker, or comply with certain demands by an attacker,
if doing so offers an alternative to the use of deadly force. See RESTATEMENT (SECOND) OF TORTS
§ 65 (1965). On the other hand, virtually all authorities agree that at one’s own dwelling, a person
is not obliged to retreat before using deadly force. See Beard v. United States, 158 U.S. 550, 563-
64 (1895) (when defendant was at his dwelling he was “not obliged to retreat . . . but was entitled
to stand his ground, and meet any attack made upon him with a deadly weapon, in such way . . . as
. . . he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary
to . . . protect himself from great bodily injury”).
What are the considerations in favor of the Restatement’s “retreat to the wall” approach as
opposed to the majority “true man” approach? (Note that the doctrinal labels themselves seem
slanted heavily toward the latter, in a clumsily gendered way.) Why does the Restatement view
carve out the home as a special no-retreat-required zone? Is defending one’s home somehow
more worthy of respect than, say, defending one’s family or one’s business or one’s neighbors?
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