The American Law Institute (ALI) has removed a long-criticised provision from US tort law’s self-defence framework: the duty to relinquish rights as an alternative to using deadly force. The change appears in the newly approved Restatement (Third) of Torts: Intentional Torts to Persons, section 24, finalised in 2026.
What the Old Duty to Relinquish Rights Required
The first Restatement of Torts, published in 1934, and its 1965 successor both denied the self-defence privilege to an actor who could avoid the need for deadly force by ‘relinquishing the exercise of any right or privilege.’ On its face, the provision was sweeping. A defendant who could have handed over money to an armed robber, stayed away from a bar at a bully’s command, or delivered a coerced apology to an aggressor would lose the privilege of using deadly force in self-defence, even if that aggressor’s demands were entirely unjustified.
The Model Penal Code’s own Commentaries had flagged the problem decades ago, observing that the Restatement’s ‘formulation would require submission to an attempted robbery.’ Legal scholars echoed the concern. Professor Margaret Raymond, writing in the Ohio State Law Journal, illustrated the point with a scenario in which a woman ordered by a neighbourhood bully not to leave her home would be required to obey if she wished to retain the privilege of lethal self-defence. Professors Hava Dyan and Emanuel Gross, writing in the Harvard Journal on Legislation, warned that requiring submission to an aggressor’s negative demands could ‘create a horrible and permanent pattern of severe domestic violence.’
Despite those objections, the provision sat in the Restatements for more than ninety years. The Third Restatement now removes it.
Why the Duty to Relinquish Rights Was Dropped
The reporters found no tort-law decisions that had ever applied the ‘any right or privilege’ provision. Two criminal-law decisions existed but offered only ambiguous support. With no live case law to preserve and serious doctrinal objections on the table, the ALI concluded the provision was ‘unduly broad’ and has omitted it entirely.
The Restatement’s Reporter’s Note identifies the core difficulty plainly: the old rule ‘would seemingly deny an actor the right to use deadly force to prevent an armed robbery, so long as the actor could safely hand over the actor’s money instead.’ It would equally require compliance with demands to avoid a particular location, to apologise, or to beg for mercy, treating the aggressor’s preferences as legally cognisable constraints on the defender’s conduct. The reporters also noted the provision ‘arguably ignores the serious culpability of the aggressor who unjustly forced the defending party to make a difficult choice.’
A small number of US criminal statutes retain language resembling the old Restatement formulation. Professor Eugene Volokh of UCLA School of Law examined those statutes in detail in ‘The Right to Defy Criminal Demands,’ published in volume 16 of the NYU Journal of Law and Liberty at page 360 (2022), and found the case law applying them to be sparse and inconclusive. North Dakota’s criminal statute offers a partial counter-model, recognising only a duty to avoid deadly force where it can be avoided ‘with safety to the actor and others, by retreat or other conduct involving minimal interference with the freedom of the individual menaced,’ a formulation that treats compliance with robbery demands as more than a minimal interference.
This is the fifth instalment of the Restatement Third of Torts to be completed, following volumes on Liability for Economic Harm, Products Liability, Apportionment, and Liability for Physical and Emotional Harm. The Reporter is Kenneth W. Simons of the University of California, Irvine School of Law, and the Associate Reporter is W. Jonathan Cardi of Wake Forest University School of Law.
The Narrow Duty to Retreat That Survives
The Third Restatement does preserve a qualified duty to retreat before using deadly force, continuing the position taken in both prior Restatements. The duty is circumscribed: it arises only where the actor knows retreat is possible with complete safety, and ‘even the slightest doubt, if reasonable, is enough to justify his standing his ground.’ An actor confronted with a loaded weapon, or any weapon posing some risk of harm during flight, need not retreat.
The Restatement illustrates the scope of the duty with two scenarios. In the first, a defender who believes escape is probable but retains a reasonable doubt about a small risk of harm during flight is not required to retreat and may use deadly force. In the second, a taxi driver who knows he can drive away from an intoxicated, knife-wielding passenger with complete safety but instead shoots and wounds the passenger loses the self-defence privilege because that safe avenue of escape was clearly available.
The Restatement acknowledges that stand-your-ground statutes, now the majority rule in US criminal law, displace this duty in jurisdictions that also immunise actors complying with criminal self-defence law from tort liability. Where neither condition is met, the narrow tort-law duty to retreat remains open for courts to apply.
Subject to any further scholarly or legislative response, the removal of the duty to relinquish rights settles a doctrinal question that the Restatements had left unresolved since 1934. Whether courts in the minority of states still recognising a criminal duty to retreat will move to align their tort doctrine with the Third Restatement’s narrower formulation is the question practitioners will now watch.
