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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 to the US Constitution
provides that we have the right to bear arms. 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. 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/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 damages to
reimburse them 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 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.
Self Defense statute 2002: 2C:3-1. Justification an affirmative
defense; civil remedies unaffected a. In any prosecution based on
conduct which is justifiable under this chapter, justification is
an affirmative defense.
b. The fact that conduct is justifiable under this chapter does
not abolish or impair any remedy for such conduct which is available
in any civil action.
L.1978, c. 95, s. 2C:3-1, eff. Sept. 1, 1979.
2C:3-2. Necessity and other justifications in general a. Necessity.
Conduct which would otherwise be an offense is justifiable by reason
of necessity to the extent permitted by law and as to which neither
the code nor other statutory law defining the offense provides exceptions
or defenses dealing with the specific situation involved and a legislative
purpose to exclude the justification claimed does not otherwise
plainly appear.
b. Other justifications in general. Conduct which would otherwise
be an offense is justifiable by reason of any defense of justification
provided by law for which neither the code nor other statutory law
defining the offense provides exceptions or defenses dealing with
the specific situation involved and a legislative purpose to exclude
the justification claimed does not otherwise plainly appear.
L.1978, c. 95, s. 2C:3-2, eff. Sept. 1, 1979.
2C:3-3. Execution of public duty a. Except as provided in subsection
b. of this section, conduct is justifiable when it is required or
authorized by:
(1) The law defining the duties or functions of a public officer
or the assistance to be rendered to such officer in the performance
of his duties;
(2) The law governing the execution of legal process;
(3) The judgment or order of a competent court or tribunal;
(4) The law governing the armed services or the lawful conduct
of war; or
(5) Any other provision of law imposing a public duty.
b. The other sections of this chapter apply to:
(1) The use of force upon or toward the person of another for any
of the purposes dealt with in such sections; and
(2) The use of deadly force for any purpose, unless the use of
such force is otherwise expressly authorized by law.
c. The justification afforded by subsection a. of this section
applies:
(1) When the actor reasonably believes his conduct to be required
or authorized by the judgment or direction of a competent court
or tribunal or in the lawful execution of legal process, notwithstanding
lack of jurisdiction of the court or defect in the legal process;
and
(2) When the actor reasonably believes his conduct to be required
or authorized to assist a public officer in the performance of his
duties, notwithstanding that the officer exceeded his legal authority.
L.1978, c. 95, s. 2C:3-3, eff. Sept. 1, 1979. 2C:3-4 Use of force
in self-protection.
2C:3-4. Use of Force in Self-Protection. a. Use of force justifiable
for protection of the person. Subject to the provisions of this
section and of section 2C:3-9, 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 use of unlawful force by such other person on the present
occasion.
b.Limitations on justifying necessity for use of force.
(1)The use of force is not justifiable under this section:
(a)To resist an arrest which the actor knows is being made by a
peace officer in the performance of his duties, although the arrest
is unlawful, unless the peace officer employs unlawful force to
effect such arrest; or
(b)To resist force used by the occupier or possessor of property
or by another person on his behalf, where the actor knows that the
person using the force is doing so under a claim of right to protect
the property, except that this limitation shall not apply if:
(i)The actor is a public officer acting in the performance of his
duties or a person lawfully assisting him therein or a person making
or assisting in a lawful arrest;
(ii)The actor has been unlawfully dispossessed of the property
and is making a reentry or recaption justified by section 2C:3-6;
or
(iii) The actor reasonably believes that such force is necessary
to protect himself against death or serious bodily harm.
(2)The use of deadly force is not justifiable under this section
unless the actor reasonably believes that such force is necessary
to protect himself against death or serious bodily harm; nor is
it justifiable if:
(a)The actor, with the purpose of causing death or serious bodily
harm, provoked the use of force against himself in the same encounter;
or
(b)The actor knows that he can avoid the necessity of using such
force with complete safety by retreating or by surrendering possession
of a thing to a person asserting a claim of right thereto or by
complying with a demand that he abstain from any action which he
has no duty to take, except that:
(i)The actor is not obliged to retreat from his dwelling, unless
he was the initial aggressor; and
(ii)A public officer justified in using force in the performance
of his duties or a person justified in using force in his assistance
or a person justified in using force in making an arrest or preventing
an escape is not obliged to desist from efforts to perform such
duty, effect such arrest or prevent such escape because of resistance
or threatened resistance by or on behalf of the person against whom
such action is directed.
(3)Except as required by paragraphs (1) and (2) of this subsection,
a person employing protective force may estimate the necessity of
using force when the force is used, without retreating, surrendering
possession, doing any other act which he has no legal duty to do
or abstaining from any lawful action.
c. (1) Notwithstanding the provisions of N.J.S.2C:3-5, N.J.S.2C:3-9,
or this section, the use of force or deadly force upon or toward
an intruder who is unlawfully in a dwelling is justifiable when
the actor reasonably believes that the force is immediately necessary
for the purpose of protecting himself or other persons in the dwelling
against the use of unlawful force by the intruder on the present
occasion.
(2)A reasonable belief exists when the actor, to protect himself
or a third person, was in his own dwelling at the time of the offense
or was privileged to be thereon and the encounter between the actor
and intruder was sudden and unexpected, compelling the actor to
act instantly and:
(a)The actor reasonably believed that the intruder would inflict
personal injury upon the actor or others in the dwelling; or
(b)The actor demanded that the intruder disarm, surrender or withdraw,
and the intruder refused to do so.
(3)An actor employing protective force may estimate the necessity
of using force when the force is used, without retreating, surrendering
possession, withdrawing or doing any other act which he has no legal
duty to do or abstaining from any lawful action.
Amended 1987, c.120, s.1; 1999, c.73.
2C:3-5. Use of force for the protection of other persons a. Subject
to the provisions of this section and of section 2C:3-9, the use
of force upon or toward the person of another is justifiable to
protect a third person when:
(1) The actor would be justified under section 2C:3-4 in using
such force to protect himself against the injury he believes to
be threatened to the person whom he seeks to protect; and
(2) Under the circumstances as the actor reasonably believes them
to be, the person whom he seeks to protect would be justified in
using such protective force; and
(3) The actor reasonably believes that his intervention is necessary
for the protection of such other person.
b. Notwithstanding subsection a. of this section:
(1) When the actor would be obliged under section 2C:3-4 b. (2)(b)
to retreat or take other action he is not obliged to do so before
using force for the protection of another person, unless he knows
that he can thereby secure the complete safety of such other person,
and
(2) When the person whom the actor seeks to protect would be obliged
under section 2C:3-4 b. (2)(b) to retreat or take similar action
if he knew that he could obtain complete safety by so doing, the
actor is obliged to try to cause him to do so before using force
in his protection if the actor knows that he can obtain complete
safety in that way; and
(3) Neither the actor nor the person whom he seeks to protect is
obliged to retreat when in the other's dwelling to any greater extent
than in his own.
L.1978, c. 95, s. 2C:3-5, eff. Sept. 1, 1979.
2C:3-6. Use of force in defense of premises or personal property
Use of Force in Defense of Premises or Personal Property. a. Use
of force in defense of premises. Subject to the provisions of this
section and of section 2C:3-9, 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.
b. Limitations on justifiable use of force in defense of premises.
(1) Request to desist. The use of force is justifiable under this
section 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.
(2) Exclusion of trespasser. The use of force is not justifiable
under this section if the actor knows that the exclusion of the
trespasser will expose him to substantial danger of serious bodily
harm.
(3) Use of deadly force. The use of deadly force is not justifiable
under subsection a. of this section 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 subparagraphs
(a) and (b) of this subsection unless the actor reasonably believes
that:
(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 terminate or prevent
the commission or the consummation of the crime would expose the
actor or another in his presence to substantial danger of bodily
harm. An actor within a dwelling shall be presumed to have a reasonable
belief in the existence of the danger. The State must rebut this
presumption by proof beyond a reasonable doubt.
c. Use of force in defense of personal property. Subject to the
provisions of subsection d. of this section and of section 2C:3-9,
the use of force upon or toward the person of another is justifiable
when the actor reasonably believes it necessary to prevent what
he reasonably believes to be an attempt by such other person to
commit theft, criminal mischief or other criminal interference with
personal property in his possession or in the possession of another
for whose protection he acts.
d. Limitations on justifiable use of force in defense of personal
property.
(1) Request to desist and exclusion of trespasser. The limitations
of subsection b. (1) and (2) of this section apply to subsection
c. of this section.
(2) Use of deadly force. The use of deadly force in defense of
personal property is not justified unless justified under another
provision of this chapter.
Amended by L. 1987, c. 120, s. 2. 2C:3-8. Use of force by persons
with special responsibility for care, discipline or safety of others
The use of force upon or toward the person of another is justifiable
as permitted by law or as would be a defense in a civil action based
thereon where the actor has been vested or entrusted with special
responsibility for the care, supervision, discipline or safety of
another or of others and the force is used for the purpose of and,
subject to section 2C:3-9(b), to the extent necessary to further
that responsibility, unless:
a. The code or the law defining the offense deals with the specific
situation involved; or
b. A legislative purpose to exclude the justification claimed otherwise
plainly appears; or
c. Deadly force is used, in which case such force must be otherwise
justifiable under the provisions of this chapter.
L.1978, c. 95, s. 2C:3-8, eff. Sept. 1, 1979.
2C:3-9. Mistake of law as to unlawfulness of force or legality
of arrest; reckless or negligent use of excessive but otherwise
justifiable force; reckless or negligent injury or risk of injury
to innocent persons a. The justification afforded by sections 2C:3-4
to 2C:3-7 is unavailable when:
(1) The actor's belief in the unlawfulness of the force or conduct
against which he employs protective force or his belief in the lawfulness
of an arrest which he endeavors to effect by force is erroneous;
and
(2) His error is due to ignorance or mistake as to the provisions
of the code, any other provisions of the criminal law or the law
governing the legality of an arrest or search.
b. (Deleted by amendment; P.L.1981, c. 290.)
c. When the actor is justified under sections 2C:3-3 to 2C:3-8
in using force upon or toward the person of another but he recklessly
or negligently injures or creates a risk of injury to innocent persons,
the justification afforded by those sections is unavailable in a
prosecution for such recklessness or negligence towards innocent
persons.
L.1978, c. 95, s. 2C:3-9, eff. Sept. 1, 1979. Amended by L.1981,
c. 290, s. 6, eff. Sept. 24, 1981.
2C:3-10. Justification in property crimes Conduct involving the
appropriation, seizure or destruction of, damage to, intrusion on,
or interference with, property is justifiable under circumstances
which would establish a defense of privilege in a civil action based
thereon, unless:
a. The code or the law defining the offense deals with the specific
situation involved; or
b. A legislative purpose to exclude the justification claimed otherwise
plainly appears.
L.1978, c. 95, s. 2C:3-10, eff. Sept. 1, 1979.
2C:3-11. Definitions Definitions. In this chapter, unless a different
meaning plainly is required: a. "Unlawful force" means
force, including confinement, which is employed without the consent
of the person against whom it is directed and the employment of
which constitutes an offense or actionable tort or would constitute
such offense or tort except for a defense (such as the absence of
intent, negligence, or mental capacity; duress, youth, or diplomatic
status) not amounting to a privilege to use the force. Assent constitutes
consent, within the meaning of this section, whether or not it otherwise
is legally effective, except assent to the infliction of death or
serious bodily harm.
b. "Deadly force" means force which the actor uses with
the purpose of causing or which he knows to create a substantial
risk of causing death or serious bodily harm. Purposely firing a
firearm in the direction of another person or at a vehicle, building
or structure in which another person is believed to be constitutes
deadly force. A threat to cause death or serious bodily harm, by
the production of a weapon or otherwise, so long as the actor's
purpose is limited to creating an apprehension that he will use
deadly force if necessary, does not constitute deadly force.
c. "Dwelling" means any building or structure, though
movable or temporary, or a portion thereof, which is for the time
being the actor's home or place of lodging except that, as used
in 2C:3-7, the building or structure need not be the actor's own
home or place of lodging.
d. "Serious bodily harm" means bodily harm which creates
a substantial risk of death or which causes serious, permanent disfigurement
or protracted loss or impairment of the function of any bodily member
or organ or which results from aggravated sexual assault or sexual
assault.
e. "Bodily harm" means physical pain, or temporary disfigurement,
or impairment of physical condition.
Amended by L. 1979, c. 178, s. 11; 1981, c. 290, s. 7; 1987, c.
120, s. 3.
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