Self-Defense w Caitlin

SELF DEFENSE IN NEW JERSEY

BY KENNETH A. VERCAMMEN, ESQ. 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

Constitution provides that we have the right to bear arms.

to

the

US

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. defend

against

seriously

Self defense is also the right of a person to 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 person's 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 defender's 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

reimburse them for medical bills and injuries suffered.

damages

to

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 owner's 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.

About the Author: Drug law and other defenses are explained in greater details in

other

articles

on

www.njlaws.com .

http://www.njlaws.com/alphabetical_index.htm About the Author Kenneth A. Vercammen is a trial attorney in Edison, Middlesex County, New Jersey. He often lectures for the New Jersey State Bar Association, New Jersey Institute for Continuing Legal Education and Middlesex County College on personal injury, criminal / municipal court

law, and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.

In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, arbitration hearings, and contested administrative law hearings.

Since 1985, matters.

Mr.

his primary

Vercammen

concentration

gained

other

has been

legal

on litigation

experiences

as

the

Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive

Assistant

to Scranton

Thomas Hart, in Scranton, PA. KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732- 572- 0500 www.njlaws.com

District

Magistrate,