WPIC 16.08 No Duty to Retreat

The instruction supplements the other self-defense instructions in WPIC Chapter 16. Use when warranted by the facts in a particular case.

The instruction is based upon State v. Allery, 101 Wn.2d 591, 682 P.2d 312 (1984). In Allery, a prosecution for second degree murder, the court held that because the evidence showed that the defendant was feloniously assaulted in a place where she had a right to be, the jury should have been instructed that the defendant had no duty to retreat, and that it was reversible error to refuse to give a “no duty to retreat” instruction.

This instruction is not necessary in every case in which there is sufficient evidence to support a self-defense instruction. State v. Studd, 137 Wn.2d 533, 973 P.2d 1049 (1999); State v. Frazier, 55 Wn.App. 204, 777 P.2d 27 (1989); State v. Thompson, 47 Wn.App. 1, 733 P.2d 584 (1987). A “no duty to retreat” instruction need not be submitted if the defendant was actively retreating at the time of the fatal act. State v. Thompson, 47 Wn.App. 1, 5–6, 733 P.2d 584 (1987). Care must be taken, however, to distinguish a full-fledged retreat from the “ebb and flow” or “circling” common in a street fight. See State v. Williams, 81 Wn.App. 738, 742–43, 916 P.2d 445 (1996). Failure to give a “no duty to retreat” instruction in the latter circumstance is error. State v. Williams, 81 Wn.App. at 744.

In Williams, the Court of Appeals “clarif[ied] the rule” to hold that “where a jury may conclude that flight is a reasonably effective alternative to the use of force in self-defense, the no duty to retreat instruction should be given.” Noting that other states would require the taking of an available withdrawal rather than the use of deadly force and that the wisdom of a contrary policy was “open to debate,” the court adhered to what it called the long standing policy of Washington that one “should not be made to yield and flee by a show of unlawful force against him.” State v. Williams, 81 Wn.App. at 744. See also State v. Wooten, 87 Wn.App. 821, 945 P.2d 1144 (1997).

The Washington Supreme Court has approved the Court of Appeals' holding in Williams, and further indicated that a no-duty-to-retreat instruction should be given where a defendant's testimony includes speculation regarding the chances for a successful retreat. State v. Redmond, 150 Wn.2d 489, 494–95, 78 P.3d 1001 (2003).

A defendant is not entitled to a no-duty-to-retreat instruction where there is no evidence that anyone other than the defendant was the original aggressor. State v. Benn, 120 Wn.2d 631, 845 P.2d 289 (1993). If the defendant's status as a first aggressor is disputed, the no duty to retreat instruction may need to be modified. In re Harvey, 3 Wn.App.2d 204, 221, 415 P.3d 253 (2018).