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Reason
Reason
Politics
Eugene Volokh

Should Deadly Self-Defense Be Tortious if Need for It Could Have Been Avoided "by Relinquishing the Exercise of [a] Right"?

The Restatements are influential works by the American Law Institute—an organization of lawyers, judges, and academics—that aimed to provide a guide for future lawyers and judges (usually by summarizing the existing law, but sometimes by going beyond existing law). Many courts have indeed adopted the Restatement formulations in various areas.

Back in 1934, the first Restatement of Torts, set forth a limitation on the common-law privilege of self-defense against battery and similar lawsuits (emphasis added):

The intentional infliction upon another of bodily harm by a means which is intended or likely to cause death or serious bodily harm is not privileged [as self-defense], if the actor reasonably believes that he can with complete safety avoid the necessity of so defending himself

(a) by retreating, if attacked in any place other than his dwelling place, or

(b) by relinquishing the exercise of any right or privilege other than his privilege to exclude intruders from his dwelling place or to prevent himself from being dispossessed thereof or to effect a lawful arrest.

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