NJ Laws Regarding Use of Force Upon an Intruder
April 20, 2020
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.