No ‘Duty To Retreat,’ NH Supreme Court Says

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Nancy West photo

New Hampshire Supreme Court in Concord.


CONCORD – Granite Staters are under no legal obligation to retreat before they use deadly force, according to a new state Supreme Court ruling.

The Court unanimously ruled to overturn Joshua D. Shea’s 2021 conviction for criminal threatening with a deadly weapon, finding that the trial judge erred by instructing the jury to consider whether Shea had the opportunity to retreat before he pulled his gun during a road rage incident.

According to the justices, a 2011 change to New Hampshire’s law on using deadly force in self defense eliminates the requirement to retreat in the face of a threat before taking action.

“After 2011, a person is justified in using deadly force when he reasonably believes that another person is about to use unlawful, deadly force against him, and he is not required to retreat if he is anywhere he has a right to be and was not the initial aggressor,” wrote Associate Justice Anna Barbara Hantz Marconi.

Shea claims he pulled his gun after another driver threatened to “beat his ass” following a close call on Route 28 in Epsom, according to the ruling’s recitation of the case. While the complainant claimed Shea pointed the gun at him, Shea testified he merely showed the gun to warn the other man off.

The incident started when the other man pulled his car in front of Shea’s truck as they drove on Route 28, forcing Shea to slam on his brakes and hit his horn. After the two men “exchanged middle fingers” they both pulled into a gas station parking lot off a traffic circle, according to the ruling.

In the gas station parking lot, according to Shea’s testimony at trial, the complainant began “aggressively swearing and saying he was going to . . . rip (Shea) out of [his] car.” 

Shea further testified that the complainant said he would “beat (Shea’s) ass,” and asked the defendant to pull into the parking lot next door where there were no cameras.

At this point, Shea testified, the complainant began walking toward Shea’s truck and he was in serious fear for his safety. Shea testified he unclipped his pistol from its holster and warned the other driver he had a gun. Shea says he brought the gun up to his chest to show the man the gun, while the other man claimed Shea pointed the gun at him.

Shea’s defense at trial, that he was acting justifiably and within the law to a perceived threat, was hampered when Merrimack Superior Court Judge Andrew Schulman instructed the jury to consider whether or not Shea could have left the parking lot instead of showing his gun. 

“One factor that you may consider in determining whether the threat existed is whether the Defendant could have completely and safely left the area without any risk to himself or others,” Schulman’s instructions read.

Shea argued, and the justices agreed, that he has no duty to retreat under New Hampshire law when confronted with a potentially dangerous situation. People are allowed to use the threat of deadly force when confronted with a potentially dangerous situation that could result in serious injury or death, so long as they are not the aggressor. The 2011 change to the law further stipulates that people do not have to retreat from public spaces in such circumstances. 

“In 2011, the statute was amended to provide that the duty to retreat before using deadly force does not apply when the person is anywhere he has a right to be, and was not the initial aggressor,” Hantz Marconi wrote.

Schulman instructing the jury to consider whether or not Shea could have first retreated before he displayed his gun reads a requirement into the law that was not put there by legislators, Hantz Marconi wrote.

“(W)hen the legislature intends that a person be required to retreat as the person’s first response, it knows how to make that requirement clear. Thus, if the legislature had intended that a person be required to respond to a threat likely to cause serious bodily injury or death by retreating before being justified in responding with the non-deadly force of displaying a firearm to warn away the threatening person, it would have said so,” Hantz Marconi wrote.

In overturning Shea’s conviction, the justices sent the case back to the lower court. It is not yet clear if prosecutors plan to refile the charges against Shea. 

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