New York is one of approximately 14 to 15 states that impose a legal duty to retreat before using deadly physical force. This requirement, codified in Penal Law Section 35.15(2)(a), stands in contrast to the "stand your ground" laws adopted by many other states. However, New York recognizes a limited Castle Doctrine exception that removes the duty to retreat for persons who are inside their own dwelling.[1]
The Duty to Retreat
Under PL 35.15(2)(a), a person may not use deadly physical force upon another person if he or she knows that, with complete safety to himself or herself and others, he or she can avoid the necessity of using such force by retreating.[1] The operative phrase is "complete safety." The duty to retreat does not require a person to take risks or expose themselves to additional danger. If retreat cannot be accomplished with complete safety, the duty does not apply, and the person may use deadly force if otherwise justified.[2]
The duty to retreat applies only to the use of deadly physical force. There is no obligation to retreat before using ordinary, non-deadly physical force in self-defense.[3]
The Castle Doctrine Exception
New York's Castle Doctrine provides a critical exception to the duty to retreat. Under PL 35.15(2)(a)(i), a person is not required to retreat before using deadly force if he or she is in his or her own dwelling and is not the initial aggressor.[1] The rationale behind this exception is that a person should not be forced to flee from his or her own home.
For the Castle Doctrine to apply, two conditions must be met simultaneously:
- The actor must be inside his or her own dwelling at the time deadly force is used.
- The actor must not be the initial aggressor in the encounter.
If either condition is absent, the duty to retreat remains in effect. An occupant who initiated the confrontation cannot claim the Castle Doctrine exception and must attempt to retreat with complete safety before resorting to deadly force.[4]
Scope of the Castle Doctrine
New York's Castle Doctrine is narrower than the castle doctrines found in many other states. It applies strictly to the actor's "dwelling," which under Penal Law Section 140.00 means a building that is usually occupied by a person lodging therein at night. The doctrine does not extend to:[5]
- The curtilage (yard, driveway, porch, or other areas surrounding the dwelling)
- A person's vehicle
- A person's place of business (unless it also qualifies as a dwelling)
- Common areas of an apartment building, such as hallways or lobbies
In all of these locations, the general duty to retreat applies before deadly force may be used.
No Stand Your Ground Law
New York does not have a stand-your-ground law. Unlike states such as Florida, Texas, or Georgia, where individuals may use deadly force without retreating in any location where they have a legal right to be, New York requires retreat in all public spaces and private locations outside the actor's dwelling.[6] This distinction is important because it means a New York resident who uses deadly force outside the home without first attempting to retreat may face criminal prosecution even if the force was otherwise proportional to the threat.
Law Enforcement Exception
The duty to retreat also does not apply to police officers or peace officers acting in the performance of their duties, or to persons assisting such officers at their direction.[1] This exception recognizes the unique responsibilities of law enforcement personnel who cannot be expected to flee from confrontations in the line of duty.