Should Deadly Self-Defense Be Tortious if Need for It Could Have Been Avoided “by Relinquishing the Exercise of [a] Right”?

The Restatements are influential works by the American Law Institute—an organization of lawyers, judges, and academics—that aimed to provide a guide for future lawyers and judges (usually by summarizing the existing law, but sometimes by going beyond existing law). Many courts have indeed adopted the Restatement formulations in various areas.

Back in 1934, the first Restatement of Torts, set forth a limitation on the common-law privilege of self-defense against battery and similar lawsuits (emphasis added):

The intentional infliction upon another of bodily harm by a means which is intended or likely to cause death or serious bodily harm is not privileged [as self-defense], if the actor reasonably believes that he can with complete safety avoid the necessity of so defending himself

(a) by retreating, if attacked in any place other than his dwelling place, or

(b) by relinquishing the exercise of any right or privilege other than his privilege to exclude intruders from his dwelling place or to prevent himself from being dispossessed thereof or to effect a lawful arrest.

The 1965 Restatement (Second) of Torts continued this. But I’m pleased to say that, while the 2026 Restatement (Third) of Torts: Intentional Torts to Persons § 24 preserves a “duty to retreat” (which does fit with quite a few precedents), it rejects any “duty to relinquish”:

Comment i. No duty to relinquish other rights

Restatement Second of Torts § 65(3)(b) broadly stated that an actor lost the right to use deadly force in self-defense, not only when the actor could safely retreat, but also when the actor could safely avoid the need to use deadly force by “relinquishing the exercise of any right or privilege other than his privilege to prevent intrusions upon or dispossession of his dwelling place or to effect a lawful arrest.” However, research has disclosed no cases that apply that “any right or privilege” provision, and the provision is unduly broad. Accordingly, this Restatement no longer includes the provision….

[Reporter’s Note to] Comment i…. The language from the Restatement Second of Torts, that an actor lost the right of self-defense when the actor could safely avoid the need to use deadly force by “relinquishing the exercise of any right or privilege …,” is omitted in this Restatement because research has disclosed no relevant cases addressing those issues and because there are serious questions about the persuasiveness of those very broad provisions.

The provision would seemingly deny an actor the right to use deadly force to prevent an armed robbery, so long as the actor could safely hand over the actor’s money instead of using force in self-defense. It would also require the actor to comply with other unjustified demands asserted by the aggressor rather than use defensive force. For example, if the aggressor threatens to use deadly force against the actor unless the actor avoids going to the aggressor’s favorite bar, or unless the actor apologizes for seeing the aggressor’s girlfriend, or unless the actor begs the aggressor for mercy, that approach would seem to require the actor to comply with the demand rather than use deadly force in self-defense.

That is a questionable result. Indeed, the Commentaries to the Model Penal Code criticize the Restatement’s broad language, pointing out: “On its face, this formulation would require submission to an attempted robbery.” Model Penal Code and Commentaries § 3.04(4)(d), at 58 (Am. L. Inst. 1985). See also Margaret Raymond, Looking for Trouble: Framing and the Dignitary Interest in the Law of Self-Defense, 71 Ohio St. L.J. 288, 322-323 (2010) (“Imagine that Mary is leaving her home to walk to the grocery store when Tyrant, the neighborhood bully, commands her, ‘Don’t leave your house. If you do, I’ll kill you.’ Under the MPC, Mary would be required to obey this direction and stay home if she wanted to retain the privilege of using lethal force in self-defense….”); Hava Dyan & Emanuel Gross, Between the Hammer and the Anvil: Battered Women Claiming Self-Defense and A Legislative Proposal to Amend Section 3.04(2)(b) of the U.S. Model Penal Code, 52 Harv. J. Legis. 17, 30 & n.77 (2015) (requiring person to submit to aggressor’s negative demands that person refrain from range of actions “might create a horrible and permanent pattern of severe domestic violence, including offensive, strange, arbitrary, humiliating and depressing demands”).

It might be argued, in favor of the Restatement Second’s broad provision, that an actor should not use deadly force when the actor could readily avoid causing serious harm by forfeiting a much lesser interest (such as the interest in visiting a bar or in not making an insincere apology). But the weight of that supposedly lesser interest is a matter of dispute. See Raymond, supra (identifying what is at stake in retreat and other cases as important dignitary interests). Also, the broad approach arguably ignores the serious culpability of the aggressor who unjustly forced the defending party to make a difficult choice.

A small number of criminal statutes do include the problematically broad language about relinquishing any right or privilege. See Eugene Volokh, The Right to Defy Criminal Demands, 16 N.Y.U. J.L. & Lib. 360, 392-402 (2022). But research has disclosed no tort-law decisions that apply that language. Two relevant criminal-law decisions exist but they provide ambiguous support. See id.

Other statutes and jury instructions take a position contrary to the Restatement Second’s position that, in order to possess the right of self-defense, an actor has a duty to relinquish most rights. North Dakota’s criminal statute recognizes a duty not to use deadly force “if it can be avoided, with safety to the actor and others, by retreat or other conduct involving minimal interference with the freedom of the individual menaced.” Acceding to an aggressor’s demand to hand over money or to remain in one’s house is presumably more than a “minimal” interference. See Volokh, supra, at 397 n.119….

I was very glad to see this; the removal may have been prompted in part by an e-mail exchange that I had with the ALI people about this.

Readers might also be interested in the rationale for the preservation of the duty to retreat in the Third Restatement; that doctrine has of course been highly controversial in the criminal context, throughout U.S. history, with the no-duty-to-retreat side prevailing in most states (with only 12 states preserving a duty to retreat, by my latest count). Here’s what the Restatement says about this, in comment g and the accompanying Reporter’s Note:

The question whether an actor must retreat before using deadly force might be analyzed as just one aspect of the necessity requirement that is always a condition of the privilege to use such defensive force. Thus, a jury might simply be asked to consider the defendant’s ability to safely retreat as part of its judgment whether the immediate use of force was reasonably necessary. That necessity-focused approach has much to commend it. However, courts and legislatures have typically not treated the question in that manner but have instead formulated specific per se rules addressing that particular alternative means of avoiding the use of deadly force.

Restatement of Torts § 65 and Restatement Second of Torts § 65 recognized a limited duty to retreat if the actor was using deadly force (but not if the actor was using lesser force). This Restatement continues to recognize a narrow duty when, but only when, the actor uses deadly force, for the same reasons enunciated in the prior Restatements.

First, it is desirable to avoid unnecessary violence, even when an actor is unjustifiably attacked by another. This desideratum is especially compelling when the actor is posing a risk of deadly harm. The rule requiring retreat in these narrow circumstances appropriately balances the relevant individual and social interests, including the interest in preserving the lives of both the aggressor and the actor and the interest of the actor in standing his or her ground. The rule also might have some tendency to reduce the incidence of avoidable deadly violence.

Second, an actor’s duty to retreat before using deadly force should be defined narrowly, in light of what can fairly be expected of an actor who must quickly decide how to respond when under sudden attack and when faced with very serious risks of harm. The actor has a duty to retreat only if the actor can do so with complete safety. If the actor harbors any reasonable doubt on this question, the actor need not retreat. As explained in Restatement Second of Torts § 65, Comment g, the actor need not retreat if “he reasonably believes that there is any chance that retreat cannot be safely made. … [E]ven the slightest doubt, if reasonable, is enough to justify his standing his ground, and in determining whether his doubt is reasonable every allowance must be made for the predicament in which his assailant has placed him.” Moreover, the actor ordinarily need not retreat from his dwelling. See Comment h.

Thus, an actor is not required to retreat when confronted with a loaded gun or any other weapon that poses some chance of causing harm to the actor if the actor chooses to depart or flee. In some circumstances, however, the actor does know or reasonably should know that a retreat is a perfectly safe option. In such a case, the duty to retreat is triggered.

Illustrations:

[6.] Cole attacks Duardo, pushing Duardo to the ground, and pulling out a knife while standing above Duardo. Duardo believes that he can probably escape without harm by running away, but Duardo also reasonably believes that there is a small chance that he would be harmed in the effort to escape. Duardo is not required to retreat and may use deadly force against Cole.

[7.] Taxi driver Finnegan picks up Elliott, a highly intoxicated passenger, and brings Elliott to his requested address. Elliott gets out of the cab but then gets into an argument with Finnegan, pulls a knife, and approaches Finnegan, who is still in the cab with the motor running. Finnegan knows he can drive away with complete safety. Instead, Finnegan lowers the closed window and fires a shot at Elliott, seriously wounding Elliott. Because Finnegan has a duty to retreat, Finnegan’s use of deadly force against Elliott is not privileged.

In recent years, many states have revised their criminal statutes to eliminate an actor’s duty to retreat even when the actor is using deadly force. Such so-called “stand your ground” laws now appear to be the majority rule with respect to criminal liability. Some states also explicitly provide that an actor’s compliance with applicable criminal self-defense statutes immunizes the actor from tort liability. In a jurisdiction with both types of provisions, the “stand your ground” approach displaces the narrow duty to retreat recognized in this Section. However, in other jurisdictions, the question whether courts should recognize a narrow duty to retreat remains open.

Some reasons in support of such a duty are recited above. Moreover, a jurisdiction might plausibly recognize a circumscribed duty to retreat as a limit on a tort-law defense even if it declines to recognize such a duty as a limit on a criminal-law defense. There are especially strong reasons to hesitate before sanctioning with a criminal penalty (as opposed to a tort remedy) actors who fail to retreat, in light of the modest culpability of many such actors as well as the stigma and harsh consequences of a criminal conviction. Indeed, in deadly force cases, the criminal penalty for an actor’s unjustified use of defensive force is often quite severe, because the actor’s conduct might be categorized as murder or aggravated battery or assault.

An important note about the imprecise phrase “duty to retreat,” also from the Restatement:

The terminology “duty to retreat” is potentially misleading. An actor with such a “duty” is not liable to an aggressor simply for not retreating. Rather, the “duty” operates as a limit on the scope of the actor’s privilege of self-defense when the actor is using otherwise proportionate deadly force against an aggressor. One could similarly speak of a “duty” to use only necessary or proportionate defensive force or a “duty” not to use force in retaliation; in all those situations, the supposed duty is a limitation on a defense, not the independent basis of tort liability to another. However, because the “duty to retreat” terminology is widely accepted and need not lead to confusion, it is employed in this Restatement.