Attorney General: Chairman John F. Healy, Connecticut Department of Liquor Control, 1990-043 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

December 17,1990

Chairman John F. Healy
Connecticut Department of Liquor Control
165 Capitol Avenue
Hartford, CT 06106

Dear Chairman Healy:

This is in response to your recent request for an opinion on the self-defense rights of liquor control agents. Specifically, you ask whether self-defense rights are greater if exercised in the "workplace", and you ask us for a definition of the workplace for agents.

We note, at the outset, that liquor control agents are primarily responsible for inspecting permit premises and reporting their observations to the Department of Liquor Control for administrative action following hearing, if necessary. See Conn. Gen. Stat. e 30-55; Regs. Conn. State Agencies, Liq. Cont., e 30-6-F2. Agents do not have arrest powers, and they are not authorized to exercise force in the normal course of their inspection duties. See 84 Conn. Op. Atty. Gen. 312, 315 (1984)(copy attached). On the other hand, the Department is specifically authorized to call upon state and municipal police to assist it in the performance of its functions. Conn. Gen. Stat. e 30-6(a). Obviously, police are better staffed, equipped and trained to handle situations where force may be necessary, whether in self-defense or otherwise. Thus, the Department may find it appropriate to call upon police whenever the need for force can be anticipated or is confronted. Nevertheless, we provide the following in response to your request for opinion for those hopefully rare situations where an agent may be compelled to act in self-defense.

In a previous opinion, we advised that an agent, like any private person, is justified in using force in self-defense whenever he or she acts on the reasonable belief that the attacker intends to do bodily harm. The measure of force allowable, and the circumstances under which it may be exercised, were generally set forth in guideline form in that opinion. See, generally, 84 Conn. Op. Atty. Gen. at 321-28. There we noted that the right of self-defense is generally qualified by a duty to retreat, if it is safe to do so, prior to using force in self-defense. Id. Your instant question is relevant to and focuses upon the applicability of the duty to retreat rule to assaults in the workplace.

In your request, you indicate that agents most often work at Department offices in Hartford, in the field inspecting permit premises throughout the State, and at their home-offices. As this opinion will show, all of these may be considered an agent's workplace.

As we cautioned in our earlier opinion, each factual situation encountered by an agent in the course of duty is unique. Advice appropriate in one fact setting may be inapposite in another situation. Consequently, our advice must remain general and in the nature of a guideline only. With this caveat in mind, your questions are evaluated as follows:

A. The Duty to Retreat Rule, and The Place of

Work Exception.

The duty to retreat rule has its origin in the ancient English common law on homicide. The principle held that "if one, murderously assailed, could escape the attacker by retreating, he must retreat rather than kill." J.H. Beale, Jr., Retreat From a Murderous Assault, 16 Har. L. Rev. 567, 574 (1903). While case law on the subject is still most commonly found in criminal murder cases, the principles are much the same in civil cases seeking monetary damages for assault. See 6A C.J.S. Assault & Battery e 19.

However, an exception to this duty to retreat rule may exist for situations where one is attacked in one's home or business premises, which includes one's place of employment while lawfully engaged in one's occupation. Conn. Gen. Stat. e 53a-19(b);1 Redondo v. State, 380 So. 2d 1107 (Fla. App. 1980) citing annot. 41 A.L.R. 3d 584, 589-602. As the following will demonstrate, these exceptions to the duty to retreat are not absolute.

B. A Liquor Control Agent's Duty to Retreat at the Agent's "Place of Work".

1. Situations involving deadly force.

It has been stated that one's "place of work" under the duty to retreat exception is not susceptible to easy definition, and the collateral determination of the person, or class of persons, able to claim the "place of work" exception is even more elusive. Commonwealth v. Johnson, 438 Pa. 485, 263 A.2d 376 (1970). Adding to this difficulty, Connecticut has not defined "place

of work" by statute or case law.2 However, it has been held that Conn. Gen. Stat. e 53a-19(b), which enumerates the situations where the use of force is justified in self-defense and which includes the place of work exception, should be read in the light of its common law background and as incorporating the full body of common law rules relevant thereto. State v. Shaw, 185 Conn. 372, 379, 441 A.2d 561 (1981) cert. denied 454 U.S. 1155, 102 S.Ct. 1027, 71 L.Ed.2d 312 (1982).

With this in mind, we understand that agents of the Department of Liquor Control are hired pursuant to Conn. Gen. Stat. e 30-3 to assist the Department in the enforcement of the Liquor Control Act. Specifically, agents are assigned to the inspection section of the Department, the function of which is to investigate the suitability of new permit applications, the continued suitability of applicants for renewal applications and compliance by permittees and backers with the Liquor Control Act and Regulations. Reg. Conn. Agencies, e 30-6-F2. They are authorized to enter permit premises at any time to inspect. Conn. Gen. Stat. e 30-106. In your request for opinion, you further indicate that agents most often work at Department offices in Hartford, in the field inspecting permit premises around the State, and out of offices in their homes.

It is generally held that an employee, working at an employer's place of business, is at his place of work. See, e.g., State v. Smith, 376 So. 2d 261 (Fla. App. 1979); People v. Johnson, 75 Mich. App. 337, 254 N.W.2d 667 (1977); State v. Gordon, 128 S.C. 422, 122 S.E. 501 (1924); Roberts v. State, 68 Ala. 156 (1880); State v. Goodager, 56 Or. 198, 106 P. 638 (1910). Thus, agents working at Department offices in Hartford are at their "place of work." Likewise, an agent inspecting permit premises is also at his place of work, because he is "at a place where he was called to be, in the discharge of his duty". Brown v. United States, 256 U.S. 335, 344, 41 S.Ct. 501, 65 L.Ed. 961 (1921).

However, concerning the use of deadly force in self-defense, Connecticut law clearly imposes a duty to retreat, if it is safe to do so. 84 Conn. Op. Atty. Gen. at 324. Notwithstanding a "place of work" exception as codified in Conn. Gen. Stat. e 53a-19(b), where both parties have a claim of right to be in the place where the altercation occurred, the courts have often required the threatened person to make an effort to retreat, if it is safe to do so, before standing one's ground repelling deadly force with deadly force, even at one's place of work. See, e.g., Wilson v. State, 69 Ga. 224 (1882); Tingle v. Commonwealth, 11 Ky. L.N. 229, 11 S.W. 812 (1889); Hall v. Commonwealth, 94 Ky. 322, 22 S.W. 333 (1893); Brake v. State, 8 Ala. App. 98, 63 So. 11 (1913); State v. Starnes, 213 S.C. 304, 49 S.E.2d 209 (1948); State v. Davis, 214 S.C. 34, 51 S.E.2d 86 (1948); Stevens v. State, 138 Ala. 71, 35 So. 122 (1903). Under these cases, both agents and members of the public, on lawful business, would have a claim of right to be at permit premises and public office buildings. The duty to retreat rule would thus apply. While our Supreme Court has not squarely addressed this issue, it has required retreat among co-dwellers under the dwelling exception to the duty to retreat rule noting that the Connecticut legislature did not intend "to sanction the re-enactment of the climatic scene from 'high noon' in the familial kitchens of this state." State v. Shaw, supra at 382. Likewise, we do not believe the legislature sought similar scenes at Department offices or inspection sites when it codified the place of work exception to the duty to retreat rule. Thus, agents should generally retreat, if it is safe to do so, at Department offices or when inspecting in the field at permit premises.

Agents working out of offices in their homes ("home-offices") fall into a different category. Here, it has long been recognized that there is no duty to retreat from one's own dwelling in the face of deadly attack from an attacker who does not also live there. There is no suggestion that Connecticut intends to retreat from that rule. Conn. Gen. Stat. e 53a-19(b); Beard v. United States, 158 U.S. 550, 563, 15 S.Ct. 962, 39 L.Ed. 1086 (1895); State v. Engle, 115 Conn. 638, 648, 162 A. 922 (1932); State v. Perkins, 88 Conn. 360, 365, 91 A. 265 (1914); State v. Bissonnette, 83 Conn. 261, 268, 76 A. 288 (1910). Consequently, agents have a duty to retreat, if it is safe to do so, prior to exercising deadly force in self-defense at their place of work, except that they have no duty to retreat from their home-office.

We believe that an agent, working at a home-office, would be included under either the "place of work" or "dwelling" exception to the duty of retreat rule. See, e.g., Roberts v. State, supra. However, the place of work and dwelling exception have been held not to apply where the assault occurred away from the place of work or dwelling, measuring distance in both space and time. See, e.g., Perry v. State, 94 Ala. 25, 10 So. 650 (1892); Buckner v. State, 17 Ala. App. 57, 81 So. 687 (1919); accord State v. Johnson, 139 Conn. 89, 90 A.2d 905 (1952)(Fight in yard, outside dwelling, where deceased had a right to be).

(2) Situations involving non-deadly force.

The different self-defense rights applicable to the hypothetical home-office attack in the analysis above also applies in cases where non-deadly force is involved, but for different reasons. Clearly, one is not required to retreat from one's home in the face of non-deadly force. Hanauer v. Coscia, 157 Conn. 49, 54, 244 A.2d 611 (1968). Consequently, there is generally no duty to retreat before employing non-deadly self-defense in the home-office.

However, where the hypothetical threatened assault upon a liquor control agent occurs in the field, or at Department offices in Hartford, additional considerations must be weighed. First, as we have noted in the past, agents are not authorized to utilize force in the performance of their investigatory duties. 84 Conn. Op. Atty. Gen. at 315 citing Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 8, 273 A.2d 709 (1970) cert. denied 401 U.S. 938, 91 S.Ct. 931, 28 L.Ed.2d 218 (1971). Second, even where retreat is not required in the exercise of non-deadly self-defense, it has been noted:

[I]f the threatened attack is conditioned upon the actor's non-compliance with the demand made upon him, the actor is not privileged to use force to protect himself against the attack so threatened, if the demand is one with which the actor knows or should know that he is under a legal duty to comply, and the force which the other threatens to apply to him is no greater than the other is privileged to apply for the purpose of securing compliance with his demand.

1 Restatement (Second) Torts e 63 (1965), comment m. at 106.

Therefore, the better rule is as follows: during an investigation, where an agent is confronted with a non-deadly threat of force in a place of work other than the agent's home, the agent should first attempt to diffuse the situation by discontinuing the investigation or retreating, if it is safe to do so, prior to exercising force in self-defense.

D. Conclusion.

For all the foregoing reasons, it is our opinion that generally, liquor control agents have duty to retreat from a threatened assault in the workplace, if it is safe to do so, except where the workplace is also the agent's home.

Very truly yours,

CLARINE NARDI RIDDLE
ATTORNEY GENERAL

Robert F. Vacchelli
Assistant Attorney General

CNR/RFV/td
attach.


1 Conn. Gen. Stat. e 53a-19(b) provides as follows:

Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.

(Emphasis added.)

2 Indeed, Connecticut courts have discussed the place of work rule in dicta only. See, e.g., State v. Shaw, 185 Conn. 372, 380, 441 A.2d 561 (1981) cert. denied 454 U.S. 1155, 102 S.Ct. 127, 71 L.Ed.2d 312 (1982) citing State v. Bailey, 79 Conn. 589, 598-99, 65 A. 951 (1907); State v. Feltovic, 110 Conn. 303, 311-12, 147 A. 801 (1929).


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