By: Eric Del Pozo
In People v. Aiken, the New York Court of Appeals held
unanimously that a person standing in his apartment doorway has a
duty to retreat inside before using deadly force in
self-defense. History supports the notion that the dwelling
exception to the retreat rule is meant to prevent people from
having to flee their homes in times of danger. Hence, both
precedent and common sense dictate that "requiring a person
standing in the doorway to step inside the apartment to avoid a
violent encounter is not the equivalent of mandating retreat from
one's home."
The dwelling exemption across all retreat jurisdictions should
extend only to inhabited physical structures and completely
enclosed appurtenances, such as porches and terraces. This
workable rule allows fact finders to focus less on whether
something is or is not a dwelling on a case-by-case basis, and more
on the "central question [of] whether defendant reasonably believed
she was about to suffer death or serious physical injury."
The prerequisite that defensive force, to be justified, appear
necessary makes retreat a lesser included of this principle.
Thus, an exemption from retreat for a homeowner who barely discerns
danger to his person or property, and yet chooses to escalate
hostilities, may be a free pass for murder.