Originally posted by: jonks
Originally posted by: Zenmervolt
Originally posted by: jonks
the law isn't likely to punish a person if a guy with a knife starts chasing you and you then turn around and fire at him.
Jonks, note that the statue phrases the duty to retreat thusly, "Even in such case, however, the actor may not use deadly physical force if he or she knows that
with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating". It does not say "reasonable" safety, it says "complete" safety. There's a world of difference.
I don't know about you, but I sure as hell do not consider running away from an armed assailant to be "complete" safety. My unguarded back makes an excellent target, even to a drunk.
I agree, as stated above, regarding the typical knife wielding assailant. Per the staggering drunk, that's usually the textbook example of the guy you are not allowed to kill. Don't overread "complete" too much, there's no such thing as "perfect" safety. Complete will generally be interpreted to mean you have an avenue of escape. A prosecutor would ask you, "all witnesses say the deceased was staggering around drunk and could barely walk. You are telling me you couldn't have backed away or run?" NY case law is strongly against unnecessary killings.
Check this out:
http://findarticles.com/p/arti..._20050405/ai_n14590221
Cliffs:
P1 and P2 (neighbors w/long history of antagonism) are arguing in the apt building they live in.
P1 walks up nose to nose to P2, who is standing in his own doorway holding a metal pipe.
P1 puts his hand in his own pocket and says "I'm going to kill you."
P2 swings the pipe and kills P1.
P2 found guilty because he didn't retreat into his apartment, upheld on appeal to the state's highest court.
NY high ct opinion:
http://www.law.cornell.edu/nyctap/I05_0039.htm
If the drunk can barely stand and is clearly not capable of locomotion, then I'll agree. I was thinking of someone who was clearly drunk, but also clearly still able to move about well. The kind of "witnesses describe the drunken man throwing a table through the plate-glass window before pulling a knife and threatening you" drunk.
The case you cite is interesting, but not fully an example of the type of situation I'm envisioning (which may be my own fault for not placing proper constraints around my hypothetical situations).
1) P1 and P2 have a history of mutually aggressive behaviour. (Therefore, there is no clear "aggressor" necessary to have precipitated any later incident, which clouds the issue.)
2) P2 clearly escalated the altercation by having the pipe. (It's certainly something that a reasonable person would assume would provoke P1 given the history.) There was no need for P2 to have come to the doorway either. In essence, the opportunity to retreat occurred several times prior to the threat from P1.
3) P2 seems to have attempted, from the beginning, to bait P1 into coming into his apartment with the intent of claiming that, per the applicable NY statute, he had no duty to retreat because he was in his home.
The case is interesting, but I really think that they key is the fact that P2 chose repeatedly to escalate the situation rather than taking any of the multiple retreat opportunities that occurred well
before the actual verbal threat. P2 could have avoided the verbal threat entirely had he simply left the door closed and remained in his own apartment. The telling part is that P2 came to the door several times before seeing P1 in the hallway. Clearly, P2 was actively seeking to continue the altercation.
I think that the case you site would have had a significantly different outcome if:
1) P1 and P2 had no history of mutual animosity.
2) P1 and P2 had not been shouting at each other through the apartment wall prior to the confrontation.
3) P2 had not come to the door with the pipe
multiple times seeking an opportunity to continue the altercation with P1
4) P2 had not, upon seeing P1 in the hallway, continued the altercation.
While the case bears some superficial resemblance to a spontaneous assault in a public place, closer scrutiny reveals that the situation is not analogous and does not necessarily have bearing in such cases.
ZV