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.