Conn. Crim. Jury Instr. 2.8-3

Duty to Retreat, Surrender Property, Comply with

Demand -- § 53a-19 (b)

In addition, the state can defeat the defendant’s claim of self-defense by proving one of the

statutory disqualifications to the use of deadly physical force. The statute defining self-defense

describes certain circumstances in which a person is not justified in using deadly physical force

in self-defense against another. These exceptions apply only to the use of deadly force, so if you

have found that the defendant used deadly physical force, you must consider these exceptions.

<Include as appropriate:>

A. Duty to retreat

B. Surrender property

C. Comply with demand

A. Duty to retreat § 53a-19 (b) (1)

(One such / Another) circumstance is that a person is not justified in using deadly physical force

upon another person if (he/she) knows that (he/she) can avoid the necessity of using such force

with complete safety by retreating. This disqualification requires a defendant to retreat instead

of using deadly physical force whenever two conditions are met: 1) a completely safe retreat is in

fact available to (him/her); and 2) (he/she) knows that (he/she) can avoid the necessity of using

deadly physical force by making that completely safe retreat. The law stresses that self-defense

cannot be retaliatory. It must be defensive and not punitive.

The term “complete safety,” as used in this statute, means without any injury to the defendant

whatsoever. A person acts “knowingly” with respect to a circumstance described in a statute

when (he/she) is aware that such circumstance exists.

It is important to remember that the defendant has no burden whatsoever to prove that (he/she)

could not have retreated with complete safety or that (he/she) didn’t know that a safe retreat was

possible before (he/she) used physical force against <insert name of other person>. To the

contrary, you may only reject (his/her) defense on the basis of this statutory disqualification if

you find that the state has proved beyond a reasonable doubt that (he/she) did know that (he/she)

could retreat with complete safety.

Exception for dwelling

As a general rule, a defendant is not required to retreat in (his/her) own dwelling before (he/she)

may use deadly force. A dwelling is defined in our law as a place which is usually occupied by a

person lodging therein at night. “Usually occupied” means customary or routine nightly

occupancy. Thus, occupation for some period of time is required. In considering whether a

house is the defendant’s dwelling, consider evidence such as where the defendant’s clothes and

personal effects were kept.3

[<If the case involves a question of co-dwellers:> To this general rule there is an exception

which you may or may not apply here, which is for you to determine as a question of fact. That

exception is that one claiming self-defense in (his/her) own dwelling has the duty to retreat from

a co-dweller before (he/she) may employ force against that co-dweller. A co-dweller is a person

who also is usually lodged in those premises at night.

Accordingly, you must first determine if the state has proved that <insert name of other person>

was a co-dweller with the defendant at <insert location>. If the state has failed to prove that

<insert name of other person> was a co-dweller, then you go no further on this issue as the

defendant would have no duty to retreat. If, however, you find that the state has proved that

<insert name of other person> was a co-dweller with the defendant, you would then consider

whether the defendant had a duty to retreat in accordance with the previously stated rule that a

person must retreat before using deadly physical force if (he/she) knows that (he/she) can retreat

with complete safety.

If you find that the state has proved beyond a reasonable doubt that the defendant and <insert

name of other person> were co-dwellers and that a retreat with complete safety was available to

the defendant and that the defendant knew it, but did not retreat, you shall then find that the state

has proved beyond a reasonable doubt that the defendant was not justified in using deadly force.]

B. Surrender property § 53a-19 (b) (2)

(One such / Another) circumstance under which a person is not justified in using deadly physical

force in self-defense against another is when (he/she) knows that (he/she) can avoid the use of

physical force with complete safety by surrendering an object of personal property to the

assailant.

Under this provision, if the assailant’s conduct appears motivated by (his/her) claim to property

that the defendant possesses and the defendant knows that if (he/she) surrendered the property

that the assailant would cease the assault upon the defendant, then the defendant may not use

deadly physical force in defense and must surrender the property.

It is important to remember that the defendant has no burden whatsoever to prove that (he/she)

knew that <insert name of assailant> would cease the assault upon the defendant if the defendant

surrendered <insert property in question>. To the contrary, you may only reject (his/her)

defense on the basis of this statutory disqualification if you find that the state has proved beyond

a reasonable doubt that the defendant knew that <insert name of assailant> would flee without

harming (him/her) if (he/she) surrendered <insert property in question>.

C. Comply with demand § 53a-19 (b) (3)

(One such / Another) circumstance under which a person is not justified in using deadly physical

force in self-defense against another is when (he/she) knows that (he/she) can avoid the necessity

of using such force with complete safety by complying with a demand that (he/she) abstain from

performing an act which (he/she) is not obliged to perform.

Under this provision, if <insert name of assailant>’s conduct appears motivated by (his/her)

insistence that the defendant stop <insert defendant’s conduct in question> and the defendant

was not obliged to <insert defendant’s conduct in question> and the defendant knew that <insert

name of assailant> would cease (his/her) use of physical force against the defendant, then the

defendant may not use deadly physical force in self-defense and must comply with the demand.

It is important to remember that the defendant has no burden whatsoever to prove that (he/she)

knew (he/she) would no longer be in danger from <insert name of assailant> if the defendant

stopped <insert defendant’s conduct in question>. To the contrary, you may only reject the

defense on the basis of this statutory disqualification if you find that the state has proved beyond

a reasonable doubt that the defendant knew that if (he/she) complied with the demands of <insert

name of assailant> then (he/she) would have no need to defend (himself/herself).

1 In this context, the court should not give the full instruction on Knowledge, Instruction 2.3-3,

which indicates that knowledge may be inferred when “a reasonable person of honest intention,

in the situation of the defendant” would reach a particular conclusion. Our Supreme Court has

concluded that such “reasonable person” language misstates the law on the duty to retreat

because it suggests an objective standard of reasonableness rather that the correct “subjective

standard of the defendant’s actual knowledge.” State v. Ash, 231 Conn. 484, 495 (1994); see

also State v. Rios, 171 Conn. App. 1, 49-50 (observing that “reasonable person” language “risked

diluting the jury’s understanding of the need to ascertain whether the defendant had actual

knowledge that he could retreat in complete safety”), cert. denied, 325 Conn. 914 (2017).

2 See State v. James, 54 Conn. App. 26, 32-26 (1999).

3 See State v. Pranckus, 75 Conn. App. 80, 92 (2003).