Self-Defense in New Jersey

Published: 16th January 2009
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The United States Constitution and New Jersey State laws permit us to protect ourselves. As homeowners, 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 has certain restrictions on gun and weapon use.
The basic question many people have is, if I defend myself and the attacker claims they are hurt, can I 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 are 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 of unlawful force against him. The force used by the defender must not be significantly greater than 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 the New Jersey 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 that might 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 him or her 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 placied 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 him 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.


Conclusion
Self-defense has been recognized in both the criminal code and civil liability cases. It is common sense under the circumstances that usually control 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.

Edited by Caitlin Yaeger
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
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, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal 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 District Magistrate, 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


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