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People v. Toler9/11/2000
ontrary to Colorado law, that because Toler was a trespasser, he could resort to physical force in self-defense only if he demonstrated that he first retreated to a position of no escape. We agree with the court of appeals.
We first review the two major common law trends governing the privilege to use deadly force in self-defense: the "retreat to the wall" doctrine and the "no duty to retreat" doctrine. After demonstrating that Colorado historically followed the "no duty to retreat" rule at common law, we assess the historical and current codifications of the doctrine in this state. Under the current statutory scheme a person may use physical or deadly force in self-defense only under certain conditions, and, with one exception, a person entitled to use such force has no duty to retreat before doing so. The statute only imposes a duty to retreat upon a specifically identified class of persons——"initial aggressors." We hold that neither section 18—1—704 nor our caselaw requires a non-aggressor who is entitled to use deadly physical force in self-defense to "retreat to the wall" before using such force, whether or not the person is where he has a right to be.
A. Use of Deadly Force in Defense of Person at Common Law
Generally speaking, a person does not have to try to escape before using reasonable non-deadly physical force to defend against unlawful force by an aggressor. See Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.7(f) (1986). However, English common law required a person to "retreat to the wall" before using deadly force in self-defense. See Idrogo v. People, 818 P.2d 752, 754 (Colo. 1991).
Under the "retreat to the wall" doctrine, a person is entitled to employ deadly force in self-defense only if the person demonstrated that no reasonable means of escape existed at the time he killed his assailant. See Perkins, supra note 7, at 140-41. Exceptions to the doctrine developed such as the "castle doctrine," which allows a person in his own home to use deadly force in self-defense without first retreating even if a reasonably safe means of escape exists. See, e.g., Conn. Gen. Stat. § 53a-19(b) (1999); Model Penal Code § 3.04(2)(b)(ii)(A) (1985). A substantial number of American jurisdictions still apply variations of the "retreat to the wall" rule in self-defense cases. See, e.g., State v. Gartland, 694 A.2d 564, 569-70 (N.J. 1997) (discussing application of "duty to retreat" and castle doctrine when a woman defends herself against a co-habitant spouse).
In contrast to the "retreat to the wall" doctrine, many jurisdictions developed a "no duty to retreat" rule, or "true man" doctrine for the use of physical force in self-defense. See, e.g., Beard v. United States, 158 U.S. 550, 560-561 (1895); State v. Renner, 912 S.W.2d 701, 703-04 (Tenn. 1995). The "true man" doctrine stands for the proposition that a "true person," or someone who is without fault, does not have to retreat from an actual or threatened attack even if he could safely do so before the person may use physical force in self-defense. See 40 Am. Jur.2d Homicide § 164 (1999). Furthermore, the "true person" does not have to consider whether a reasonable person in the situation would opt to retreat to safety rather than resorting to physical force to defend against unlawful force. See id. ; Renner, 912 S.W.2d at 704. Typically, jurisdictions state that the "true person" doctrine applies when (1) the defendant is "without fault in provoking the confrontation;" (2) the defendant is "in a place where he has a lawful right to be;" and (3) the defendant has a reasonable fear that the victim is about to cause the defendant immediate serious bodily harm or death. See, e.g., B
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