第五章 結論
第二款 19 世紀美國聯邦法院之繼受
二、 Brown v. United States
二、 Brown v. United States300
前一案件可說是退避義務的突破於聯邦最高法院之先河，而本案則是奠定了 無退避義務的範圍在美國普通法系內的基礎。本案的事實是涉及到被告在工作期 間（其有職責範圍不離開的地方）受到他人持刀侵襲，而被告在向著他外套處跑
298 Id, at 564. “The defendant was where he had the right to be, when the deceased advanced upon him in a threatening manner, and with a deadly weapon; and if the accused did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm, he was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack made upon him with a deadly weapon, in such way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.”
299 Id, at 555-556. “… was the defendant called upon to avoid that danger by getting out of the way of it if he could? The court says he was. The court tells you that he was. There is but one place where he need not retreat any further, where he need not go away from the danger, and that is in his dwelling house. He may be upon his own premises, and if a man, while so situated, and upon his own premises, can do that which would reasonably put aside the danger short of taking life, if he can do that, I say, he is called upon to do so by retreating, by getting out of the way if he can, by avoiding a conflict that may be about to come upon him; and the law says that he must do so; and the fact that he is standing upon his own premises away from his own dwelling house does not take away from him the exercise of the duty of avoiding the danger if he can with a due regard to his own safety by getting away from there, or by resorting to some other means of less violence than those resorted to. Now, the rule as applicable to a man of that kind upon his own premises-upon his own property, but outside of his dwelling house-is as I have just stated.”
300 Brown v. United States, 256 U.S. 335 (1921).
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Beard v. United States，最高法院在本案中最終闡明了退避義務例外包含兩件事情：一、當行為人相信其面臨到立即性的生命或重大身體侵害時，其有權停留原地
302 Id. “The judge instructed the jury among other things that ‘it is necessary to remember, in considering the question of self [defense], that the party assaulted is always under the obligation to retreat so long as retreat is open to him, provided that he can do so without subjecting himself to the danger of death or great bodily harm.”
303 Id. “An instruction to the effect that if the defendant had reasonable grounds of apprehension that he was in danger of losing his life or of suffering serious bodily harm from Hermis he was not bound to retreat was refused.”
304 Id. at 342-343. “So the question is brought out with sufficient clearness whether the formula laid down by the Court and often repeated by the ancient law is adequate to the protection of the defendant's rights.”
305 Id. at 343. “The law has grown, and even if historical mistakes have contributed to its growth it has tended in the direction of rules consistent with human nature. Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not succeeded the bounds of lawful self [defense].”
306 Id. “Therefore in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him”
307 Id. “Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt.”
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屋外的花園308，以及旅館的房間內309，但本案中是被告有職權停留原地，在前 述案件與傳統普通法上並無法進行判斷310。然最終本案因為前面的陪審團指示 錯誤，將使陪審團忽略了被告仍有無退避義務的可能，並且透過事實法院所呈 現的證據，最終廢棄了本案判決。
第三款 堡壘原則的特別發展與21 世紀之「不退讓法」
自Brown v. United States 在聯邦最高法院被確認以後，因應著不同州因其歷 史背景之間產生了或寬或嚴的正當防衛抗辯，但能肯定的是，退避義務的欠缺不 再是不得主張正當防衛抗辯之先決判斷標準。而同時，對於「有權所在」之定義，
除了已被聯邦最高法院承認之房屋、花園、工作場所、以及旅館房間外，其他地 方是否同樣類似於這些地方，也產生了若干爭議，這樣的爭議同時也被若干判決 認為應當是堡壘原則的延伸，就此部分本文將在本款獨立討論其發展311。
那對於原則具退避義務這種傳統普通法看法的放棄，除了前述早期法院有的 美國人不應當是面對侵害者逃離的「懦夫」312，或者乾脆是說明防衛者並無離開
308 See Beard v. United States, 158 U.S. 550 (1895).
309 See Rowe v. United States, 164 U.S. 546 (1896).
310 See Brown v. United States, supra note 300, at 344. “It is true that in the case of Beard he was upon his own land (not in his house,) and in that of Rowe he was in the room of a hotel, but those facts, although mentioned by the Court, would not have bettered the [defense] by the old common law and were not appreciably more favorable than that the defendant here was at a place where he was called to be, in the discharge of his duty.”
311 事實上，堡壘原則與退避義務的例外基本上是同步出現在美國正當防衛歷史發展中，僅是該
判決是否有使用到特定名詞的差異。但也因此，堡壘原則究竟是退避義務的例外之一，還是堡壘 原則同步介入正當防衛手段的判斷標準，則因判決而有所差異，將於後續詳細說明；亦有對於堡 壘原則的看法是結合自我防衛與為住宅防衛的類型，See Catherine L. Carpenter, Of the Enemy Within, the Castle Doctrine, and Self-Defense, 86 Marq. L. Rev. 653, 665 (2003).
312 無獨有偶，除了前述 Erwin 一案外，在印第安納州最高法院於 Runyan v. State 一案也表達了 退避義務是與「美國精神」有所扞格的，See Runyan v. State, 57 Ind. 80, 84 (Ind. 1877), “[T]he tendency of the American mind Seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed, to avoid chastisement or even to save human life, and that tendency is well illustrated by the recent decisions of our courts, bearing on the general subject of the right of [self-defense]. The weight of modern authority, in our judgment, establishes the doctrine, that, when a person, being without fault and in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force, and if, in the reasonable exercise of his right of [self-defense], his assailant is killed, he is justifiable.”; Richard Maxwell Brown, No Duty to Retreat: Violence and Values in American History and Society (1991).
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135 (Tex. 1885). “… finding that it was reversible error for the judge to omit from the jury instruction that the defendant was not bound to retreat before killing his assailant in the face of an unlawful attack.”315 See Denise M. Drake, The Castle Doctrine: An Expanding Right to Stand Your Ground, 39 St. Mary’s L.J. 573 (2008).
316 在德克薩斯州於南北戰爭之後的近 20 年仍然沒有相關的規範，而在當時使用武力致使他人
死亡是否合法，多數法官判斷所依賴更多的是常識而不是法律。現在來看更誇張的，當時所謂的 常識判斷，甚至有一種抗辯是「賤人必須死」的抗辯。相關詳細論述，See generally Bill Neal, Getting Away with Murder on the Texas Frontier: Notorious Killing and Celebrated Trials 5-17 (2006). “…
Gentleman of the Grand Jury … they tell us that more men are killed in Texas than in any other country in the world, and I guess that’s a fact, but … I tell you that more men need killing in Texas than in any country in the world.”
317 See Madison Fair, Dare Defend: Standing for Stand Your Ground, 38 Law & Psychol. Rev. 153, 158 (2014).
318 Id.; See Rebekah Skiba, supra note 261, at 78.
319 See United States v. Millar, 307 U.S. 174, 178 (1939).
320 See District of Columbia v. Heller, 128 S.Ct. 2783 (2008).
321 擁槍權對於不退讓法落實的影響亦不得不提及美國步槍協會（NRA）在此的作用，甚至佛州
的不退讓法落實，前NRA 副協會長更是推手之一，而這樣的落實 NRA 也認為是對於擁槍權的
正面影響，同時其主張不退讓法與擁槍權的搭配將更好的保護人們的生命，See Benjamin Levin, A Defensible Defense: Rexamining Castle Doctrine Statutes, 47 Harv. J. on Legis. 523, 532-534 (2010).
322 如果單純無退避義務的話，在德克薩斯州早於 1973 年的草案即曾有出現過，但當時最終未明
文規範。See Sternlight v. State, 540 S.W.2d 704,705 (Tex. Crim. App. 1976). “… discussing how prior to the 1973 Penal Code amendments, there was no duty to retreat in Texas.”