Bill aims to erase “duty to retreat” in New York law

ALBANY — When threatened by an aggressor outside their homes, people in New York, under current law, have a duty to retreat — if possible — before resorting to force.

Now, an upstate lawmaker, state Sen. George Borrello, R-Chautauqua County, has introduced a measure that would scrap the duty to retreat requirement, framing his proposal as a public safety measure that will extend the right of self-defense and provide potential legal immunity in civil lawsuits against people who shoot those threatening to do harm.

New York law, as written now, imposes no duty to retreat on people when they are in their dwellings. Borrello said there should be no inconsistency in the law. His bill would remove the self-defense restrictions in instances when people face a violent aggressor outside the home setting, as long as the person facing the threat is at a location where she or he can legally be.

SEEN PUBLIC SAFETY ‘DEGRADE’

Borrello, contacted by CNHI, said New York “has become a much more dangerous place” as a result of changes to the bail law that prevent judges from jailing defendants on the basis of their potential danger to public safety.

“This is something I think is incredibly important, right at this moment, because we have seen New York’s public safety degrade so much,” the senator said.

He also explained that individuals, when confronted by a dangerous assailant, have to react quickly.

“The purpose of this is to ensure that in that split second you have to make a decision that the state of New York will back up your right to defend yourself,” he said.

AMONG 12 STATES

New York is one of 12 states that impose a duty to retreat, which requires individuals, when not at home, to try to escape from a confrontation with a person behaving aggressively.

It is now among several states where the right to self defense is getting a fresh look. Last year, Ohio rewrote its laws to eliminate the duty to retreat. The change puts the onus on prosecutors to prove a claim of self-defense may not be justified.

Wisconsin, a state with a duty-to-retreat requirement, was the site last year of a highly-publicized trial that culminated with the acquittal of Kyle Rittenhouse in connection with shooting three people, two of them fatally, at a racial justice protest in Kenosha. Rittenhouse claimed he was defending himself. Prosecutors had argued Rittenhouse lost the right to self defense when he allegedly provoked the fateful encounter.

FAVRO WEIGHS IN

One upstate law enforcement official, Clinton County Sheriff David Favro, said it is not uncommon for situations involving the use of deadly force to produce claims of self-defense and justifications that can be “vague,” depending on a variety of circumstances.

“I don’t think society as a whole just needs a carte blanche to shoot somebody if they think that they’re doing something wrong.” Favro said when reached in Plattsburgh. “But you certainly have a right to protect your property, your family and yourself.”

He said he is reluctant to take a stand on the proposal until he has a chance to review the bill thoroughly.

PANDEMIC FORCES

Offering a perspective from a region of the state experiencing a spike in gun crimes, David Caba, senior program director of Bronx Rises Against Gun Violence, linked the wave of recent shootings to the same pandemic forces that have driven up drug overdoses, suicides and domestic violence incidents.

Caba, noting shootings had been on the decline for a decade prior to the pandemic, suggested the new legislation could cause more problems than it would solve.

Caba said public frustration with gun crimes is warranted, particularly in the aftermath of the fatal shootings of two New York City Police Officers in Harlem earlier this month.

“It’s absolutely human to have reactions to what’s going on, and it makes complete sense,” he said. “But what we have to be careful about is going in the direction of fanning the flames.”

‘FEELING MORE EMBOLDENED’

In upstate Delhi, Delaware County Sheriff Craig DuMond said he strongly supports Borrello’s proposal to strip away the duty to retreat requirement.

As a result of the more lenient bail law, legislation that would allow for the expungement of certain criminal records and other measures advanced by downstate progressives at the statehouse, DuMond said, “People are feeling more emboldened to do and act in any way they want.”

But the sheriff said he doubts the Borrello bill will advance.

“Unfortunately, our state leaders seem to be more infatuated with criminals’ rights than they are with the rights of victims of crime,” DuMond said.

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