WPIC 17.05 Lawful Force—No Duty to Retreat

The instruction supplements WPIC 17.02 (Lawful Force—Defense of Self, Others, Property) and WPIC 17.03 (Lawful Force—Detention of Person). It should be combined with one of those instructions when warranted by the facts in a particular case.

In the second paragraph, the second bracketed alternative may be used in order to instruct jurors more specifically as to the relationship between this instruction's “no duty to retreat” rule and the “reasonably effective alternative” component of the necessary use of force under WPIC 17.02 (Lawful Force—Defense of Self, Others, Property) and WPIC 16.05 (Necessary—Definition). For further discussion, see the Comment below.

The instruction is based upon State v. Allery, 101 Wn.2d 591, 682 P.2d 312 (1984). In Allery, 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. The court held it was reversible error to refuse to give an instruction such as the instruction that is now WPIC 17.05. See also State v. Williams, 81 Wn.App. 738, 916 P.2d 445 (1996) (holding 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”).

The no duty to retreat instruction is required when a jury may objectively conclude that flight is a reasonably effective alternative to the use of force in self-defense. A trial court cannot allow the defendant to put forth a theory of self-defense, yet refuse to provide corresponding jury instructions that are supported by the evidence in the case. State v. Redmond, 150 Wn.2d 489, 78 P.3d 1001 (2003).

The instruction's second paragraph has two bracketed alternatives. The first alternative is a simple statement that there is no duty to retreat. For some cases, this simple statement of the principle may be adequate. For other cases, however, jurors may be confused as to the proper integration of this instruction with other instructions requiring that the force used be “not more than is necessary” (WPIC 17.02 (Lawful Force—Defense of Self, Others, Property)) and further defining “necessary” as meaning in part that there did not appear to be any “reasonably effective alternatives” to the use of force (WPIC 16.05 (Necessary—Definition)). For such cases, the second alternative may be used in order to more fully explain the interrelationship of these principles. For additional discussion of these issues, see the Comment to WPIC 17.02 (Lawful Force—Defense of Self, Others, Property).

See also the Comment to WPIC 16.08 (No Duty to Retreat) (the corollary instruction on the “no duty to retreat” rule for cases of justifiable homicide).