Let’s explore New Jersey Self Protection Law. This is the second in a series of blogs related to self-defense. My first installment related to self-defense against an intruder on your property. This installment is self-defense in self-protection in other locations. Remember the standards applied are different depending upon the circumstances you find yourself in. Defending yourself against an intruder in your home is different from self-protection at another location!
The use of force 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.
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 of unlawful force. The force used must not be significantly greater than and must be proportionate to the unlawful force threatened or used against the other person.
This is a different standard than my previous blog that dealt with self-defense against an intruder. In defending against an intruder the force does not have to be proportionate whereas in other situations it does. This is an important distinction.
The term unlawful force is defined as force used against a person without their consent in such a way that would constitute a civil wrong or criminal offense.
If the force used in defending against this unlawful force is not immediately necessary or was not in proportion to the force used by the other person then the law will not consider your actions to be legitimate self-defense. This is because there are different levels of force that a person may use to prevent unlawful harm. You can only use the amount or degree of force that you reasonably believe is necessary to protect yourself against harm. If you are attempting to protect yourself against exposure to death or the substantial danger of serious bodily harm you may resort to the use of deadly force. Otherwise, you may only resort to non-deadly force.
Obviously, a situation where self-defense is necessary occurs quickly and without warning. A life or death decision has to be made instantaneously and the consequences of your decision can be long-lasting.
New Jersey Self Protection Law – DEADLY FORCE
Under New Jersey Self Protection Law, the use of deadly force may be justified only to defend against force or the threat of force of nearly equal severity and is not justified unless you reasonably believe that such force is necessary to protect yourself against death or serious bodily injury. For example, if one were to purposely fire a firearm in the direction of another person that would be an example of deadly force. A mere threat with a firearm, however, intended only to make the other person believe that you will use the firearm if necessary is not an example of deadly force.
One cannot respond with deadly force to a threat 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.
Again, as was the case with defense against an intruder the term “reasonable belief” is being used frequently.
A reasonable belief is one which would be held by a person of ordinary prudence and intelligence situated as you are. Self-defense exonerates a person who uses force in the reasonable belief that such action was necessary to prevent his death or serious injury even though his belief was later proven mistaken. Accordingly, the law requires only a reasonable, not necessarily a correct judgment.
Even if it is established that the use of deadly force was reasonable, there are limitations on the use of deadly force. If you provoked or incited the use of force against yourself in the same encounter, the defense of self-defense is not available. Also, if you are deemed to have been able to avoid the necessity of using deadly force by retreating, provided that you could retreat with complete safety then the defense is not available.
Again, this duty to retreat, if it can be done with complete safety, is different from the standard when dealing with an intruder in your home. There is no duty to retreat in your home where there may be in other situations.
New Jersey Self Protection Law- NON-DEADLY FORCE
New Jersey Self Protection Law standards for the use of non-deadly force are not as complicated as those for deadly force.
A person may use non-deadly force in his own defense as long as it is justified. A person may use non-deadly force if the following conditions exist:
- The person reasonable believes he must use force.
- The person reasonably believes that the use of force was immediately necessary; and
- The person reasonably believes he is using force to defend against unlawful force; and
- The person reasonably believes that the level of the intensity of the force he is using is proportionate to the unlawful force his is using to defend himself.
The definition of reasonable belief is the same as the one used for deadly force.
**Source: New Jersey Model Criminal Jury Charge 2C: 3-4)**
Let’s explore the NJ laws regarding use of force upon an intruder in your home. There are varying types of Self-defense in New Jersey for various types of situations and locations. I am going to write a series of blogs discussing these defenses to try and clarify some concerns that some of my clients have expressed.
For my first installment, I am going to discuss use of force against an intruder in your home. This topic was recently in the news in Burlington County as a homeowner stabbed and killed an intruder that had come into his home. Please remember that these standards are only relevant to a situation where you are defending yourself against an intruder in your home in New Jersey. There are different standards for defending yourself outside of your home, defending another and defending personal property. I will address those situations in subsequent blogs.
Under certain circumstances the law allows a person to use force upon another and the use of such force does not constitute a criminal offense. The law exonerates a defendant who uses force, even deadly force upon or toward an intruder who is unlawfully in a dwelling when the defendant reasonably believes that the force is immediately necessary for the purpose of protecting himself or other persons in the dwelling against the unlawful force by the intruder on the present occasion.
It is the State’s burden to prove beyond a reasonable doubt that the force used by the defendant against another person was not justified.
For the use of force to be justified the following conditions must exist:
- The other person was an intruder who was unlawfully in a dwelling. An intruder is defined as an individual who enters or attempts to enter a dwelling uninvited. The term intruder does not extend to an individual who is invited into a dwelling by the resident and is a guest in that dwelling for a period of time before the use of force occurs. A dwelling includes the entranceway of a building or structure.
- The defendant/property owner reasonably believed that force or deadly force was immediately necessary for the purpose of protecting himself or another person in the dwelling against the use of force by the intruder on the present occasion. The level of force need not be proportionate to the unlawful force. (The pointing of a firearm is the use of force within the meaning of this defense and that such force, even if thought to be excessive may be used if the intruder was the aggressor).
A reasonable belief exists when a homeowner, to protect himself or a third person was in his own dwelling at the time of the offense or was privileged to be there and the encounter between the homeowner and the intruder was sudden and unexpected, compelling the homeowner to act instantly and the homeowner reasonably believed that the intruder would inflict personal injury upon the defendant or others in the dwelling or the homeowner demanded the intruder disarm, surrender or withdraw and the intruder refused to do so.
A reasonable belief is different than an honest belief. A reasonable belief is not measured by what the homeowner thought but rather what a jury finds reasonable. Thus, the reasonableness of a homeowner’s belief is based upon an objective standard, that is, by how an ordinary reasonable person with a detached viewpoint would view it. A subjective belief, based on the viewpoint of the homeowner is immaterial.
If the homeowner does employ protective force, he has the right to estimate the necessity of using force without retreating, surrendering position withdrawing or doing any other act which he has no legal duty to do or abstaining from any lawful action.
***Source: NJ Model Criminal Jury Charge 2C: 3-4 c updated September 2016***
So, what does all of this mean when someone has entered your home at 2 o’clock in the morning?
What it means is that you do not have to conduct an interview in your home to find out what this person wants. You do not have to cower, retreat or surrender to this person. You do not have to ask them to leave and wait for their reply. It means that you have the right to act reasonably under the circumstances to protect yourself or another person in the dwelling from harm. This includes the use of deadly force. The language concerning asking the intruder to disarm, surrender or withdraw and the intruder refusing to do so, aside from being patently absurd, is in the disjunctive not the conjunctive meaning that you do not have to do that; it is simply further proof of the reasonableness of the action.
Obviously, the key word is reasonable. The time of day and all surrounding circumstances determine what is reasonable.
John Brennan is representing a defendant in a Millville murder case. This high profile case centers around an April incident on the 600 block of Dock Street in Millville where a 56-year-old local man was gunned down in the street.
John Brennan’s client is not believed to be the assailant but the defense has argued that he was at the scene of the crime. Under a new state law, the homicide charges against Brennan’s client call for him to be detained in jail unless the defense can convince a judge there are ways to release him while ensuring his future appearance at hearings.
If you have been detained in relation to a crime, it is imperative that you seek professional legal counsel. John Brennan is a South Jersey, criminal defense lawyer with the experience and knowledge to get results.
Read The Full Article Here>>>
You may need to have your record expunged and not even know it
Did you ever wonder why you didn’t get that job that you were sure you were going to get?
Did you know that a dismissed charge still will stay on your record until it has legally been expunged? Although your charge may have been dismissed the fact that you were charged is still a matter of public record. Why deal with embarrassing questions at a job interview when you can remove any hint of the incidents existence by expungement?
If you have had even the slightest brush with the criminal justice system, you need to make sure that, if possible, any evidence of that brush is eliminated.
Many people assume that because a case was dismissed that it automatically goes away. Not true!
What is an expungement?
An expungement is the extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person’s detection, apprehension, arrest, detention, trial, or disposition of an offense within the criminal justice system.
What can be expunged?
The types of records that can be expunged include complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, rap sheets, and judicial docket records.
Effect of expungement
The effect of an expungement is that the event or document never occurred or existed. It is deemed by the law not to have occurred and is not a matter of public record that can be accessed by employers or the curious. When it is said that the records are extracted or isolated it means that the records are not actually destroyed but instead, access to them is strictly limited for use by the courts, prosecutors, probation officers and department of corrections staff. Thus, access to records is limited but not in ways that tie the hands of law enforcement.
A successful applicant for expungement does not have to answer affirmatively relating to expunged criminal records, and his /her prior arrest, conviction, and related proceedings shall be deemed not to have occurred.
Important facts about expungement
A person whose conviction was expunged may possess a firearm.
An expunged domestic violence conviction allows a person applying for gun permits to have application considered as if the offense never occurred.
Indictable convictions can be expunged after 10 years, however, it is not available if there has been another crime or two offenses either before or after. (Expungement is not available for some serious violent crimes). In some instances, an indictable conviction can be expunged after 5 years, if it can be shown that the expungement is in the public interest.
Disorderly person offenses and petty disorderly person offenses can be expunged after 5 years, expungement is not available if more than two offenses or a crime either before or after.
Municipal ordinances can be expunged after 2 years, expungement is not available if convicted of one crime or two offenses.
Drug offense convictions for young offenders can be expunged after 1 year, expungement not available for serious drug distribution, and; not available if on parole or probation or previously accepted into supervisory treatment or other diversion.
Arrests not resulting in conviction may be expunged immediately, or six months after diversionary program. Expungement is not available for dismissals, discharges or acquittals based on insanity or mental incapacity.
If you have had a prior brush with the law that you would like to have go way through expungement call me for a free confidential consultation to discuss whether you are eligible for this important legal process. I have the experience, the credentials and the compassion to help you with your legal issue.
Once you have legally obtained your firearm it is important to be aware of what you can and cannot do in the State of New Jersey. The biggest question is: how can I legally use my firearm?
First and foremost, New Jersey is not an open carry State, which means that even if you have lawfully obtained a gun you cannot carry it around with you anywhere you want. A permit to purchase a firearm and a firearms identification card are not permits to carry a firearm. You need a separate permit to carry a firearm in the State of New Jersey. The laws are very strict and the penalties very severe, so you should always proceed with caution. It is imperative that every gun owner make themselves aware of the laws pertaining to guns in this state particularly if you have ever lived in another state where the laws may be less strict.
Although New Jersey has a procedure for granting open carry permits, the standard is such that it is virtually impossible to obtain one. The standard is that the applicant must establish a justifiable need to carry a firearm. The reason it is virtually impossible to obtain a permit to carry in New Jersey is that unlike other states, such as our neighbors in Pennsylvania, the New Jersey Courts have determined that self- defense is not a justifiable need.
So, if all of that is true, what is the sense of having a gun in the State of New Jersey? Although, you cannot carry a handgun in public, there are many exemptions from the law that allow legal possession and usage.
As I see it, the most important exemption is that nothing in the law “shall be construed to prevent a person from keeping or carrying about his place of business, residence, premises or other land owned or possessed by him, any firearm, or from carrying same in the manner specified by law from any place of purchase to his residence or place of business, between one place of business or residence and another when moving, or between his dwelling or place of business and place where such firearms are repaired, for the purpose of repair”. (N.J.S.A. 2C: 39-6e).
What that means is that you may have any gun in your home for protection and you may carry it on lands owned or possessed by you without fear of prosecution. This is true even if the gun is not registered. Although lawful self-defense is a complicated term, you may lawfully use a firearm in self-defense, in your home or on lands owned or possessed by you, if self-defense is justified under the circumstances. It is important to note that any gun is permitted as long as it is not an illegal gun like an assault rifle, sawed-off shotgun or defaced firearm. Those firearms are per se illegal and cannot be possessed under any circumstances.
You may have a legal firearm at your place of business as long as the business is owned by you. This is what allows a store owner to protect his/her business. This does not apply to every employee of a business. If you are working at the counter at McDonald’s or want to take a gun to your job at the mall, this exemption does not protect you. For purposes of this section of the criminal code, a place of business is deemed a fixed location.
There are also a host of exemptions for legally transporting firearms from one place to another, such as directly to or from a rifle or pistol club, gun range, hunting or fishing area, or place where guns are exhibited. Again, the rules are very strict. The gun or guns must be transported unloaded and contained in a closed and fastened case, gun box or securely tied package, or locked in the trunk of an automobile in which it is being transported. In the course of travel, you must include only such deviations as are reasonably necessary under the circumstances.
These are rules not suggestions. You cannot transport a gun, even if unloaded in the passenger area of your vehicle. Failure to transport a weapon properly, even if for an exempted purpose, will result in you being charged criminally and being exposed to all of the penalties for illegal possession of a firearm. Also, while transporting a gun, the travel must be directly to and from the locations and only reasonable deviations are permitted. So driving from Moorestown to Mount Laurel via Atlantic City would not be a reasonable deviation. What is a reasonable deviation is an objective standard, but the law requires the exemptions to be interpreted narrowly.
The right to bear arms is a constitutionally protected right that is limited in the State of New Jersey. Due to the strict laws and harsh penalties imposed in New Jersey, it is imperative that gun owners be aware of their rights and responsibilities. In my career, I have seen people get themselves into trouble by ignorance of the law, carelessness, or a lack of appreciation of the State’s zealousness in prosecuting perceived offenders. The penalties for unlawful possession of a firearm, including imprisonment, are mandatory.
In my former career as a prosecutor, I was responsible for the prosecution of gun offenses for over a decade. I can tell you first hand that it is very difficult to get around these mandatory penalties. So many problems can be avoided by increased awareness of the potential pitfalls of gun ownership.
I have the experience the compassion and the credentials to help you with your legal issue. If you have a legal issue with the possession or use of a firearm contact me for a free consultation.
It is a constitutional right to own a firearm. Yet many people in these troubled times that we live, in which we are seeing a spike in gun sales, are confused about what constitutes legal gun ownership and legal usage of those firearms. I am going to run a series explaining the difference between legal and illegal firearms acquisition, usage and carrying.
Who may obtain a firearm?
No person of good character and good repute in the community in which they live shall be denied a permit to purchase a handgun or a firearms identification card. Unless:
1) They have been convicted of any crime or a disorderly persons offense which involves an act of domestic violence.
2) They are a drug dependent person, confined for a mental disorder to a hospital, mental institution or sanitarium or who is presently an habitual drunkard.
3) They are a person who suffers from any physical defect or disease which would make it unsafe for him/her to handle firearms, have been confined for a mental disorder or are an alcoholic, unless; any of the foregoing persons produce a certificate of a medical doctor or psychiatrist licensed in New Jersey, or other satisfactory proof, that he/she is no longer suffering from that particular disability in such a manner that would interfere with or handicap him/her in the handling of firearms.
4) They have knowingly falsified any information on the application form for a handgun purchase permit or firearms identification card.
5) They are under the age of 18 for a firearms purchaser identification card or under the age of 21 for a permit to purchase a handgun.
6) The issuance to that person would not be in the interest of the public, health, safety or welfare.
7) They are the subject of a restraining order issued pursuant to the “Prevention of Domestic Violence Act of 1991”.
8) They were adjudicated delinquent as a juvenile for an offense which, if committed by an adult would constitute a crime and the offense involved the unlawful use or possession of a weapon explosive device.
9) They had their firearms seized pursuant to the Prevention of Domestic Violence Act of 1991 and the weapons were not returned.
It is important to remember that the initial decision as to whether or not an applicant falls under any of these categories, which would cause their application to fail, is made by the Chief of Police in the town you live in or the superintendent of the State Police if your town does not have its own police force. These decisions are not made by a court of law. A court of law will only get involved if an applicant is denied and wants to appeal. As a citizen of the State of New Jersey and the United States you have the right to have a firearm and the burden is on the State to establish that you do not have that right. An arbitrary decision by the Chief of Police will not stand if it is not based on the statutory criteria.
As you can see, if you have an interest in having firearms, a domestic violence restraining order will seriously limit your ability to obtain one. Before entering a plea to an act of domestic violence, you must remember that once that order is entered it has no time limit and conceivably will never go away. You will be banned from legally obtaining guns until the order is dismissed or rescinded which is very difficult to do without the victim’s acquiescence. This order will stay in effect for the rest of your life.
The police routinely will arbitrarily use the clause that issuance is not “in the interest, of the public’s health safety and welfare” to deny an applicant’s constitutional right. This rather vague standard is a catch-all provision for people who the police have determined are undesirable but are unable to articulate why. If you are denied either a permit to purchase or a firearm identification card based on this clause, you should contact me to fight this denial. Again, the burden is on the government to prove that you are not eligible.
I cannot stress to you enough how important it is to be careful when filling out your application. An overzealous police force or one that sees you as being unworthy to give a permit to purchase will sometimes take an innocent inaccuracy or misinterpretation in your application and turn it into a “knowing falsification” of your application and try to charge you criminally. Again, call me to help you fight for your rights as a United States citizen.
I have the experience, the compassion and the credentials to help you with your legal issue. If you feel that your application for a firearms identification card or permit to purchase has been improperly denied call my office to set up a free consultation.
The free Uber program that has been so successful in Evesham (Evesham Saving Lives) has expanded to Voorhees. Residents of either town can take a free Uber ride home from any bar in the town to avoid any possibility of driving while intoxicated. The service is provided free of charge between the hours of 9 pm and 2 am, 7 days per week. The towns have already noticed a decrease in drunk driving arrests and accidents, and hope that the programs can make a lasting impact on alcohol-related offenses.
The penalties for drunk driving and other alcohol-related misbehavior that arise from alcohol consumption are too high to not take advantage of this opportunity. Please be safe and not sorry over this Holiday season. Get the New Year off to a great start by being smart about alcohol consumption.
Recently, many people have had their property seized without being convicted of a crime, or even charged with wrongdoing. This procedure, known as civil asset forfeiture, allows police to take cash and other property. As was recently uncovered in a report from the Institute for Justice, a nonprofit civil-liberties law firm, and reported in the Washington Post, the amounts that have been seized in recent years has skyrocketed.
The government does not measure the number of times per year that assets are seized. But one common measure of the practice is the amount of money in the asset forfeiture funds of the Department of Justice and the U.S. Treasury, the two agencies that typically perform forfeitures at the federal level. In 2008, there were less than $1.5 billion in the combined asset forfeiture funds of the Justice Department and the U.S. Treasury, according to the report. But by 2014, that number had tripled, to roughly $4.5 billion.
In one case represented by the Institute, a drug task force seized $11,000 from a college student at an airport because his luggage smelled like marijuana. They lacked evidence to charge him with any crime, but they kept the money and planned to divvy it up between 13 different law enforcement agencies, most of which had nothing to do with the actual seizure of cash.
In another case, the IRS emptied a convenience store owner’s bank account because it suspected he was depositing cash in such a way as to avoid reporting requirements for large deposits. He eventually won his money back after a lengthy court fight.
It is a sad commentary, but civil forfeiture may have a financial incentive. Once property is seized, owners must navigate a complicated set of hurdles to get it back. The more property is seized, the more income for that particular department or municipality. With the financial crisis, local governments are struggling as well. The explosion in civil forfeiture accounts likely coincides with a slowdown in other types of revenue due to the economic slowdown.
According to a recent survey, one in four female victims of domestic violence would not contact the police regarding their problem. The survey represents answers from 637 women who have experienced abuse by a partner. The average age of participants was 30 years old, and 56% were white. Hispanics comprised 15% of the survey respondents, and African Americans represented 11%.
More than half of the respondents–including those who did not oppose calling authorities for help—agreed with a survey statement that reaching out to law enforcement “would make things worse.” Two thirds said they were afraid the police would not believe them, or do nothing. A full 50% of the women said they were not sure if they would call the police in the future, and one third of respondents said they felt less safe after contacting the police.
Perhaps the most troubling is that 43 percent of women said they believed police discriminated against them due to their gender, socio-economic status and race/ethnicity, among other factors.
Domestic violence is one of the most prevalent problems in our society, and far too many victims are afraid to report it or force a change. On the law enforcement side, more training is required to make the process more transparent and make victims feel more secure after reporting. Victims need to be empowered, given a voice and treated with respect.
On the flip side, those accused of domestic violence are facing stiff penalties and serious consequences. It has serious implications for employment, ability to see one’s family and children, and eventually one’s freedom.
Recently, there have been several articles about James Jacobs’ The Eternal Criminal Record. The book shows how the current record-keeping system in the U.S. “presents a public-policy conundrum for American criminal justice: The more information we collect and share about suspected criminals and actual offenders, the easier it is to identify and discriminate against those marked individuals,” says Kevin Lapp, an associate professor of law at Loyola Law School in Los Angeles—thereby increasing the risks of recidivism. In his forthcoming article, Lapp argues that criminal record-keeping in the United States is “exceptionally public, exceptionally punitive, and exceptionally permanent.”
The issue presents difficult issues – by improving the information contained in criminal records, we can limit inaccuracies. However, since records are, for the most part, public, those with records have a hard time ever shedding their pasts and moving on. Possible solutions include limiting access to records, adopting legal employment discrimination protection against those with criminal records, or preventing employers from accessing arrest records. With the rash of police overreaching and arrests that result in dropped charges, we must focus attention on this problem, or more people will have lifelong employment problems.