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PaperclipPerfector  1yr ago (text post)   31309 thread views

Culture War Roundup for the week of May 15, 2023

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Well, the problem is that the guy in the video is not a lawyer and his statement is wrong under US law. There is no obligation to avoid a place you have the right to be just because someone threatened to kill you if you went there. It is obviously wrong in a stand your ground state, but also in non-stand your ground states like NY, where the duty to retreat is not triggered until the threat is imminent:

The trial judge believed Davis was not entitled to a charge on justification because, by returning to Amsterdam Avenue where he knew Bubblegum was, he violated the statutory duty to retreat. At that moment, Davis was able to retreat with complete safety, simply by leaving the vicinity. The trial judge believed Davis's duty to retreat arose as of that moment, so that his return to Amsterdam Avenue caused a forfeiture of his right to receive a charge on justification.

[However] Under the terms of Section 35.15, the duty to retreat does not arise until the defendant forms a reasonable belief that the other person "is using or about to use deadly physical force." N.Y. Penal Law § 35.15(1). The ruling of the New York Court of Appeals in Y.K., further spelled out that this duty does "not arise until the point at which [the other person's use of] deadly physical force was [actually occurring] or imminent." Y.K., 87 N.Y.2d at 434, 639 N.Y.S.2d 1001, 663 N.E.2d 313.

Davis v. Strack, 270 F. 3d 111 (2nd Circuit 2001)

Note also that that video is ancient; he refers to the Soviet Union, and the guy depicted is now almist 80 years old.

Unfortunately, that was the ruling of a Federal court. New York courts do not consider the rulings of Federal courts (other than the Supreme Court) on state law to be be binding precedent. So notwithstanding the 2nd Circuit ruling, the opposite NY Court of Appeals ruling remains law in New York.

It is following state law, and there is no opposite Court of Appeals precedent: the Y.K. case is from the NY Court of Appeals, ie, from highest NY state court, and was "issued after Davis's trial." 270 F.2d at 116.

Again, as it says, "The ruling of the New York Court of Appeals in Y.K., further spelled out that this duty [to retreat] does "not arise until the point at which [the other person's use of] deadly physical force was [actually occurring] or imminent." Y.K., 87 N.Y.2d at 434, 639 N.Y.S.2d 1001, 663 N.E.2d 313." (Initial bracketed material and emphasis added ).

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