Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee, GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500,

www.njlaws.com

Tuesday, October 18, 2011

Self Defense

Self Defense

The United States Constitution and our State laws permit us to protect ourselves. As a homeowner, there are legal measures that can be used to keep out intruders. The Second Amendment to the US Constitution provides that we have the right to bear arms. Obviously, civilized society is permitted to have certain restrictions on gun and weapon use.

The basic question many people have is if they defend themselves and the attacker claims they are hurt, can you be liable. There are two vastly different grounds for liability: criminal liability and civil liability.

Self-Defense and Avoiding Criminal Responsibility

A person may use force against another person if he reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person. Such justifiable use of force is commonly call "self-defense." The provisions for self-defense to protect citizens from criminal charges is found in the criminal code at NJSA 2C-3-4(a), which states in part:

"... The use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the unlawful force by such other person on the present occasion."

In other words, self defense is the right of a person to defend against any unlawful force. Self defense is also the right of a person to defend against seriously threatened unlawful force that is actually pending or reasonably anticipated.

When a person is in imminent danger of bodily harm, the person has the right to use force or even deadly force when that force is necessary to prevent the use against (him/her) of unlawful force. The force used by the defender must not be significantly greater that and must be proportionate to the unlawful force threatened or used against the defender.

Unlawful force is defined as force used against a person without the persons consent in such a way that the action would be a civil wrong or a criminal offense.

If the force used by the defender was not immediately necessary for the defenders protection or if the force used by the defender was disproportionate in its intensity, then the use of such force by the defendant was not justified and the self defense claim in a criminal prosecution falls.

Deadly Force and Criminal Prosecution

The use of deadly force may be justified only to defend against force or the threat of force of nearly equally severity and is not justifiable unless the defendant reasonably believes that such force is necessary to protect (himself/herself) against death or serious bodily harm. By serious bodily harm, we mean an injury that creates substantial risk of death or which causes serious permanent disfigurement or which causes a protracted loss or impairment of the function of any bodily member or organ.

One cannot respond with deadly force to a threat of or even an actual minor attack. For example, a slap or an imminent threat of being pushed in a crowd would not ordinarily justify the use of deadly force to defend against such unlawful conduct.

In addition, one can under limited instances use force in the protection of others (NJSA 2C:35-5). Limited force under certain instances is also afforded in the criminal code for the defense of personal property (NJSA 2C:3-6C).

Defense of Real Property (Your Home) and Criminal Liability

A section of our criminal law provides that:

"the use of force upon or toward the person of another is justifiable when the actor is in possession or control of premises or is licensed or privileged to be thereon and he reasonably believes such force necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass by such other person in or upon such premises."

A person commits a criminal trespass if, knowing that (he/she) is not licensed or privileged to do so, (he/she) enters or surreptitiously remains in any structure or separately secured or occupied portion thereof.

Our criminal law further provides that, in defense of your home:

"the use of force is justifiable...only if the actor first requests the person against whom such force is used to desist from his interference with the property, unless the actor reasonably believes that (a) such request would be useless; (b) it would be dangerous to himself or another person to make the request or (c) substantial harm will be done to the physical condition of the property which is sought to be protected before the request can effectively be made."

"The use of deadly force is not justifiable in the defense of premises unless the actor reasonably believes that:

(a) The person against whom the force is used is attempting to dispossess him of his dwelling otherwise than under a claim of right to its possession; or

(b) The person against whom the force is used is attempting to commit or consummate arson, burglary, robbery or other criminal theft or property destruction; except that

(c) Deadly force does not become justifiable under subsections (a) and (b) unless

(i) The person against whom it is employed has employed or threatened deadly force against or in the presence of the actor; or

(ii) The use of force other than deadly force to prevent the commission or the consummation of the crime would expose the actor or another in his presence to substantial danger of serious bodily harm."

These are taken from portions of the Model Jury Charges - Criminal, Third Edition, published by the New Jersey Institute for Continuing Legal Education. It should be noted that these are defenses to criminal charges which will be brought against you if you defended yourself.

Even if the County Prosecutor or Police decide not to bring criminal charges against you or if you are successful in proving that you were protecting yourself as permitted under certain provisions of the criminal code, the attacker if injured still may attempt to bring a civil suit to recover for any medical expenses or injuries incurred.

Defenses to Civil Liability

Ordinarily, if someone is injured as a result of the intentional or negligent act of another, they can recover monetary damages to reimburse them for medical bills and injuries suffered. However, this is not always so when the person was injured while attacking someone else or attempting to steal from that person.

The judge in a civil case will instruct jurors in the following easy to read language: "No person has a lawful right to lay hostile and menacing hands on another. However, the law does not require anyone to submit meekly to the unlawful infliction of violence upon him. He may resist the use or threatened use of force upon him. He may meet force with force, but he may use only such force as reasonably appears to him to be necessary under all the circumstances for the purpose of self protection.

One is not ordinarily expected to exercise the same refined degree of judgment at times of great stress or excitement that he would under more placid circumstances.

Deadly Force and Civil Duty to Retreat

A deadly force is not justifiable when an opportunity to retreat with complete safety is known by the defender to be at hand. The use of such force is not justifiable if the defender knew that it could have been avoided with complete safety to himself by retreating. Where these conditions are present, the defender has a duty to retreat, and his use of a deadly force under these circumstances cannot be justified as an act of self defense.

Defense of Others

One may justifiably intervene in defense of any person who is in actual or apparent imminent danger of death or serious bodily harm, and in so doing he may use such force as he has reason to believe, and does believe, necessary under the circumstances. The defender must be reasonable in his belief that the third party is in dire peril of death or serious bodily harm. He must also have a reasonable basis to believe that the force he uses is necessary to protect the apparent victim from the threatened harm.

The defender has the burden of proving to the jurors that he inflicted the injuries complained of while acting in defense of the third party within the foregoing principles.

One is not permitted to set up traps to kill or maim individuals who attempt to trespass on their property. There is a responsibility to warn trespassers of dangerous conditions and an intenant risk of injuries. You cannot have a deep pit to catch trespassers or electric wire with one million volts of electricity to kill a trespasser.

Liability for Dog Bites

If someone hops your fence, trespasses on your land, and your dog bites him, you are not liable. However, New Jersey does impose strict liability if your dog bites someone if it is loose or if the person bitten was in a public place or permitted on your property. NJSA 4:19-16 provides,

"The owner of any dog which shall bite a person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owners knowledge of such viciousness.

"For the purpose of this section, a person is lawfully upon the private property of such owner when he is on the property in the performance of any duty imposed upon him by the laws of this state or the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner thereof."

Thus, in New Jersey, a dog does not get two bites.

A person can even be liable if your dog injures someone although not biting it. Being jumped on or chased by a dog could be grounds for a civil liability. It is also strict liability if any of your dangerous animals injure someone, i.e. pet, buffalo or tiger.

Conclusion

Self defense has been recognized in both the criminal code and civil liability cases. It is common sense under the circumstances that usually controls liability. For more detailed information on self defense, you should carefully read the New Jersey statutes dealing with criminal responsibility and self defense.

It is also important to note that in intentional acts usually your insurance company will not defend you or pay another person who is injured on your property as a result of intentional acts. You should personally speak with your homeowners insurance broker to ask them to show you specifically in your policy where you are covered for injuries to someone.

Self Defense statute 2002: 2C:3-1. Justification an affirmative defense; civil remedies unaffected a. In any prosecution based on conduct which is justifiable under this chapter, justification is an affirmative defense.

b. The fact that conduct is justifiable under this chapter does not abolish or impair any remedy for such conduct which is available in any civil action.

L.1978, c. 95, s. 2C:3-1, eff. Sept. 1, 1979.

2C:3-2. Necessity and other justifications in general a. Necessity. Conduct which would otherwise be an offense is justifiable by reason of necessity to the extent permitted by law and as to which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

b. Other justifications in general. Conduct which would otherwise be an offense is justifiable by reason of any defense of justification provided by law for which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

L.1978, c. 95, s. 2C:3-2, eff. Sept. 1, 1979.

2C:3-3. Execution of public duty a. Except as provided in subsection b. of this section, conduct is justifiable when it is required or authorized by:

(1) The law defining the duties or functions of a public officer or the assistance to be rendered to such officer in the performance of his duties;

(2) The law governing the execution of legal process;

(3) The judgment or order of a competent court or tribunal;

(4) The law governing the armed services or the lawful conduct of war; or

(5) Any other provision of law imposing a public duty.

b. The other sections of this chapter apply to:

(1) The use of force upon or toward the person of another for any of the purposes dealt with in such sections; and

(2) The use of deadly force for any purpose, unless the use of such force is otherwise expressly authorized by law.

c. The justification afforded by subsection a. of this section applies:

(1) When the actor reasonably believes his conduct to be required or authorized by the judgment or direction of a competent court or tribunal or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process; and

(2) When the actor reasonably believes his conduct to be required or authorized to assist a public officer in the performance of his duties, notwithstanding that the officer exceeded his legal authority.

L.1978, c. 95, s. 2C:3-3, eff. Sept. 1, 1979. 2C:3-4 Use of force in self-protection.

2C:3-4. Use of Force in Self-Protection. a. Use of force justifiable for protection of the person. Subject to the provisions of this section and of section 2C:3-9, the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

b.Limitations on justifying necessity for use of force.

(1)The use of force is not justifiable under this section:

(a)To resist an arrest which the actor knows is being made by a peace officer in the performance of his duties, although the arrest is unlawful, unless the peace officer employs unlawful force to effect such arrest; or

(b)To resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:

(i)The actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest;

(ii)The actor has been unlawfully dispossessed of the property and is making a reentry or recaption justified by section 2C:3-6; or

(iii) The actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm.

(2)The use of deadly force is not justifiable under this section unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm; nor is it justifiable if:

(a)The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or

(b)The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:

(i)The actor is not obliged to retreat from his dwelling, unless he was the initial aggressor; and

(ii)A public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.

(3)Except as required by paragraphs (1) and (2) of this subsection, a person employing protective force may estimate the necessity of using force when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do or abstaining from any lawful action.

c. (1) Notwithstanding the provisions of N.J.S.2C:3-5, N.J.S.2C:3-9, or this section, the use of force or deadly force upon or toward an intruder who is unlawfully in a dwelling is justifiable when the actor reasonably believes that the force is immediately necessary for the purpose of protecting himself or other persons in the dwelling against the use of unlawful force by the intruder on the present occasion.

(2)A reasonable belief exists when the actor, to protect himself or a third person, was in his own dwelling at the time of the offense or was privileged to be thereon and the encounter between the actor and intruder was sudden and unexpected, compelling the actor to act instantly and:

(a)The actor reasonably believed that the intruder would inflict personal injury upon the actor or others in the dwelling; or

(b)The actor demanded that the intruder disarm, surrender or withdraw, and the intruder refused to do so.

(3)An actor employing protective force may estimate the necessity of using force when the force is used, without retreating, surrendering possession, withdrawing or doing any other act which he has no legal duty to do or abstaining from any lawful action.

Amended 1987, c.120, s.1; 1999, c.73.

2C:3-5. Use of force for the protection of other persons a. Subject to the provisions of this section and of section 2C:3-9, the use of force upon or toward the person of another is justifiable to protect a third person when:

(1) The actor would be justified under section 2C:3-4 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect; and

(2) Under the circumstances as the actor reasonably believes them to be, the person whom he seeks to protect would be justified in using such protective force; and

(3) The actor reasonably believes that his intervention is necessary for the protection of such other person.

b. Notwithstanding subsection a. of this section:

(1) When the actor would be obliged under section 2C:3-4 b. (2)(b) to retreat or take other action he is not obliged to do so before using force for the protection of another person, unless he knows that he can thereby secure the complete safety of such other person, and

(2) When the person whom the actor seeks to protect would be obliged under section 2C:3-4 b. (2)(b) to retreat or take similar action if he knew that he could obtain complete safety by so doing, the actor is obliged to try to cause him to do so before using force in his protection if the actor knows that he can obtain complete safety in that way; and

(3) Neither the actor nor the person whom he seeks to protect is obliged to retreat when in the others dwelling to any greater extent than in his own.

L.1978, c. 95, s. 2C:3-5, eff. Sept. 1, 1979.

2C:3-6. Use of force in defense of premises or personal property Use of Force in Defense of Premises or Personal Property. a. Use of force in defense of premises. Subject to the provisions of this section and of section 2C:3-9, the use of force upon or toward the person of another is justifiable when the actor is in possession or control of premises or is licensed or privileged to be thereon and he reasonably believes such force necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass by such other person in or upon such premises.

b. Limitations on justifiable use of force in defense of premises.

(1) Request to desist. The use of force is justifiable under this section only if the actor first requests the person against whom such force is used to desist from his interference with the property, unless the actor reasonably believes that:

(a) Such request would be useless;

(b) It would be dangerous to himself or another person to make the request; or

(c) Substantial harm will be done to the physical condition of the property which is sought to be protected before the request can effectively be made.

(2) Exclusion of trespasser. The use of force is not justifiable under this section if the actor knows that the exclusion of the trespasser will expose him to substantial danger of serious bodily harm.

(3) Use of deadly force. The use of deadly force is not justifiable under subsection a. of this section unless the actor reasonably believes that:

(a) The person against whom the force is used is attempting to dispossess him of his dwelling otherwise than under a claim of right to its possession; or

(b) The person against whom the force is used is attempting to commit or consummate arson, burglary, robbery or other criminal theft or property destruction; except that

(c) Deadly force does not become justifiable under subparagraphs (a) and (b) of this subsection unless the actor reasonably believes that:

(i) The person against whom it is employed has employed or threatened deadly force against or in the presence of the actor; or

(ii) The use of force other than deadly force to terminate or prevent the commission or the consummation of the crime would expose the actor or another in his presence to substantial danger of bodily harm. An actor within a dwelling shall be presumed to have a reasonable belief in the existence of the danger. The State must rebut this presumption by proof beyond a reasonable doubt.

c. Use of force in defense of personal property. Subject to the provisions of subsection d. of this section and of section 2C:3-9, the use of force upon or toward the person of another is justifiable when the actor reasonably believes it necessary to prevent what he reasonably believes to be an attempt by such other person to commit theft, criminal mischief or other criminal interference with personal property in his possession or in the possession of another for whose protection he acts.

d. Limitations on justifiable use of force in defense of personal property.

(1) Request to desist and exclusion of trespasser. The limitations of subsection b. (1) and (2) of this section apply to subsection c. of this section.

(2) Use of deadly force. The use of deadly force in defense of personal property is not justified unless justified under another provision of this chapter.

Amended by L. 1987, c. 120, s. 2. 2C:3-8. Use of force by persons with special responsibility for care, discipline or safety of others The use of force upon or toward the person of another is justifiable as permitted by law or as would be a defense in a civil action based thereon where the actor has been vested or entrusted with special responsibility for the care, supervision, discipline or safety of another or of others and the force is used for the purpose of and, subject to section 2C:3-9(b), to the extent necessary to further that responsibility, unless:

a. The code or the law defining the offense deals with the specific situation involved; or

b. A legislative purpose to exclude the justification claimed otherwise plainly appears; or

c. Deadly force is used, in which case such force must be otherwise justifiable under the provisions of this chapter.

L.1978, c. 95, s. 2C:3-8, eff. Sept. 1, 1979.

2C:3-9. Mistake of law as to unlawfulness of force or legality of arrest; reckless or negligent use of excessive but otherwise justifiable force; reckless or negligent injury or risk of injury to innocent persons a. The justification afforded by sections 2C:3-4 to 2C:3-7 is unavailable when:

(1) The actors belief in the unlawfulness of the force or conduct against which he employs protective force or his belief in the lawfulness of an arrest which he endeavors to effect by force is erroneous; and

(2) His error is due to ignorance or mistake as to the provisions of the code, any other provisions of the criminal law or the law governing the legality of an arrest or search.

b. (Deleted by amendment; P.L.1981, c. 290.)

c. When the actor is justified under sections 2C:3-3 to 2C:3-8 in using force upon or toward the person of another but he recklessly or negligently injures or creates a risk of injury to innocent persons, the justification afforded by those sections is unavailable in a prosecution for such recklessness or negligence towards innocent persons.

L.1978, c. 95, s. 2C:3-9, eff. Sept. 1, 1979. Amended by L.1981, c. 290, s. 6, eff. Sept. 24, 1981.

2C:3-10. Justification in property crimes Conduct involving the appropriation, seizure or destruction of, damage to, intrusion on, or interference with, property is justifiable under circumstances which would establish a defense of privilege in a civil action based thereon, unless:

a. The code or the law defining the offense deals with the specific situation involved; or

b. A legislative purpose to exclude the justification claimed otherwise plainly appears.

L.1978, c. 95, s. 2C:3-10, eff. Sept. 1, 1979.

2C:3-11. Definitions Definitions. In this chapter, unless a different meaning plainly is required: a. "Unlawful force" means force, including confinement, which is employed without the consent of the person against whom it is directed and the employment of which constitutes an offense or actionable tort or would constitute such offense or tort except for a defense (such as the absence of intent, negligence, or mental capacity; duress, youth, or diplomatic status) not amounting to a privilege to use the force. Assent constitutes consent, within the meaning of this section, whether or not it otherwise is legally effective, except assent to the infliction of death or serious bodily harm.

b. "Deadly force" means force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm. Purposely firing a firearm in the direction of another person or at a vehicle, building or structure in which another person is believed to be constitutes deadly force. A threat to cause death or serious bodily harm, by the production of a weapon or otherwise, so long as the actors purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute deadly force.

c. "Dwelling" means any building or structure, though movable or temporary, or a portion thereof, which is for the time being the actors home or place of lodging except that, as used in 2C:3-7, the building or structure need not be the actors own home or place of lodging.

d. "Serious bodily harm" means bodily harm which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ or which results from aggravated sexual assault or sexual assault.

e. "Bodily harm" means physical pain, or temporary disfigurement, or impairment of physical condition.

Amended by L. 1979, c. 178, s. 11; 1981, c. 290, s. 7; 1987, c. 120, s. 3.