Historically, English common law justified deadly force only in circumstances where one was executing the law effecting a legal arrest or preventing violent felonies (see Perkins, Self-Defense Re-Examined, 1 UCLA L Rev 133 [1953]). When deadly force was reasonably used in self-defense it only excused but did not justify the homicide (see Wharton, Homicide § 3, at 211 [1855]). The difference was more than theoretical, as the excused killer was subject to property forfeiture and, at times, even a penal sentence (see Dressler, Understanding Criminal Law, [3d ed], § 17.01, p 205). However, with the enactment of 24 Henry VIII, ch 5 (1532), the justification defense was enlarged to include deadly force reasonably used in self-defense. This broader reading of the justified use of deadly force was further refined by cases involving attacks in the dwelling of the defender. Such a defender even if the original aggressor did not have a duty to retreat when inside the home, or "castell" (Lambard, Eirenarcha, or Offices of the Justice of the Peace, 250 [1599]). Our contemporary castle doctrine grew out of a turbulent era when retreat from one's home necessarily entailed increased peril and strife (see Thompson, Homicide in Self-Defense, 14 Am L Rev 548, 554 [1888]). The rationale that evolved now widely accepted is that one should not be driven from the inviolate place of refuge that is the home. "It is not now, and has never been the law that a man assailed in his own dwelling, is bound to retreat. If assailed there, he may stand his ground, and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home" (see People v Tomlins, 213 NY 240, 243 [1914] [Cardozo, J.]).
The home exception to the duty to retreat reflects two interrelated concepts defense of one's home, and defense of one's person and family. "The house has a peculiar immunity in that it is sacred for the protection of a person's family," and "[m]andating a duty to retreat for defense of dwelling claims will force people to leave their homes by the back door while their family members are exposed to danger and their houses are burgled" (State v Carothers, 594 NW2d 897, 900-901 [1999] [Minn] [internal quotations and citations ommitted]). Yet somewhat at odds with this privileged status accorded the home is the state's general interest in protecting life. "The duty to retreat reflects the idea that a killing is justified only as a last resort, an act impermissible as long as other reasonable avenues remain open" (People v Jones, 3 NY3d 491, 494 [2004]). Indeed, requiring a defender to retreat before using deadly force may in [*4]fact be "the more civilized view" (LaFave, Substantive Criminal Law § 10.4 [e], at 155 [2d Ed]). Inevitably, then, a balance must be struck between protecting life by requiring retreat and protecting the sanctity of the home by not requiring retreat.
Prior to 1940, New York's decisional law tended toward protection of life by imposing a generalized duty to retreat in the face of deadly force (People v Tomlins, 213 NY 240; People v Kennedy, 159 NY 346, 349 [1899]; People v Constantino, 153 NY 24 [1897]). However, in People v Ligouri (284 NY 309, 317 [1940]), this Court departed from what had been the traditional retreat rule and held that a defendant faced with felonious attack on a public street was justified "in standing his ground and, if necessary, destroying the person making the felonious attack." The Legislature responded in its 1965 revision of the Penal Law (see L 1965, ch 1030; see also Denzer and McQuillan, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 35.15, at 64 [1967 ed]). Codifying what had been the common law of the state prior to Ligouri, Penal Law § 35.15 for the first time statutorily limited the use of lethal defensive force to circumstances when the defender cannot "with complete safety as to himself and others avoid the necessity of so doing by retreating." The Legislature also incorporated the castle doctrine balancing the competing interests of protecting the home and protecting life directing that the duty to retreat does not apply when the defender "is in his dwelling and not the initial aggressor" (Penal Law § 35.15 [2] [a] ).[FN2]
Thus, our current statutory recognition of the castle doctrine in Penal Law § 35.15 reaffirmed New York's traditional self-defense principles (see People v Hernandez, 98 NY2d 175, 182 [2002]). If the attack occurs in the dwelling, a defender need not retreat but may use reasonable force to repel it.
