Review of “Use of Force” & “Lethal Use of Force” Laws

With the rise in disgusting anti-Semitism, I decided to post this to help inform my fellow Jews on some of the legalities of self defense. Here is a review of use of force laws for different states. Be sure to scroll to your particular state, as laws vary.

If you live in NY or NJ your government is putting you at great risk of harm by not allowing very much legal recourse for victims – requiring you to try and run away before defending yourself. If you live in FL, TX or even CA you can stand your ground.

(MODS – this is bit of a megillah, but everything below is copied from various law websites, so nothing that offends your sensibilities will be found here.)

NEW YORK STATE:

Self Defense –
Self-defense is described in Article 35 of New York’s Penal Law Code. It is also known as “justification,” and describes when defendants are reasonably “justified” in using physical or deadly force to defend themselves.

NY Penal Law 35.15 states:

…a person may use physical force upon another individual when, and to the extent that, he/she reasonably believes it to be necessary to defend himself/herself [or someone else] from what he/she reasonably believes to be the use or imminent use of [unlawful] physical force by such individual.

Justification defines non-lethal “physical force” and “deadly force.” It also describes where it can be reasonably asserted to protect:

*themselves or others,
*homes or premises,
*and to prevent criminal mischief.

Justification is proportional, however, and so much depends on reasonable belief. If an unarmed aggressor punched or kicked you, a jury might sympathize if you punched or kicked back; but if you retaliated with a gun, the jury may believe you reacted disproportionately and unreasonably.

The same can generally be said for retaliating against a verbal threat with physical force. Someone saying they will burn your house down does not constitute an imminent threat and will not make you justified (nor reasonable) in using physical force to harm them.

Assessing imminent danger and retaliation is challenging (and that’s why we have criminal trials) because there are so many factors to consider. Article 35 has been amended and updated several times over the years to address all the variables and will likely continue.

NY’s Duty to Retreat and Castle Doctrine

New York State is also governed by a “duty to retreat.” This concept does not mean surrender; but rather, before you act in self-defense you must take reasonable actions to mitigate the risk of harm, which includes fleeing and calling the police. For example, you would have a duty to retreat if someone threatened violence while you dine in a public park. The duty to retreat is essentially the opposite of a “stand your ground law,” where you are not obligated to flee the scene if threatened.

But retreat may not always be possible or required. If you are in your home, for example, there is no duty to retreat if an aggressor intrudes and threatens physical harm. This concept is guided by the “castle doctrine,” a clause that typically refers to defending yourself inside your property. It ties to the old adage that “one’s home is his or her castle,” and they should not have to abandon it amid a threat. The key difference between the castle doctrine and stand your ground, is that the former takes place in private settings, like homes or businesses.

If an intruder entered your house and you used deadly force because you believed you were in danger, the castle doctrine may be applied after-the-fact, as part of your defense in court. It is not a license to kill and – taken a step further – does not “allow” you to harm anyone. For example: luring someone into your house, shooting them, and then claiming self-defense under the castle doctrine later will not exonerate you.

It is very difficult to be mindful of these seemingly-conflicting laws when facing an imminent physical threat. New Yorkers may defend themselves from imminent physical harm, but also:

Must act reasonably in an effort to justify their self-defense.
Have a duty to retreat in public, and
May not hide behind any law as an excuse to kill or harm someone else.

NEW JERSEY:

Self Defense –
A person is allowed to use force in self protection when the actor reasonably believes that the force used is immediately necessary to protect himself against unlawful force by another person. When evaluating the reasonableness of the defendant’s use of force, the judge will consider factors such as the age and size of the people involved, threats made between them and any reputation for violence of the other party. The use of force in self defense is subject to a few limitations outlined in N.J.S.A. 2C:3-4. For example, the individual may not use such force to resist arrest by a police officer or to resist force used by a property owner in protection of his or her property.

Deadly force may only be used in self defense if it is reasonably believed that such deadly force is necessary to protect the actor from death or serious bodily harm. Under New Jersey law, “serious bodily harm” is defined as injury that creates a substantial risk of death, serious permanent disfigurement or a protracted loss or impairment of the function of any bodily member or organ.

New Jersey law requires that the defendant has a duty to retreat first. If this is not possible, than the defendant must have reasonable belief about three subjects in order to constitute self defense:

A. The force used must be immediately necessary
B. The force against the defendant must be unlawful
C. The amount of force used must be necessary

This means that the defendant must be threatened with immediate, illegal violence or other unlawful action, and that the action required the amount of force with which the defendant responded. A defense of Self Defense is disregarded if any of these conditions are not met. For example, if someone is threatening to assault you, you have the right to fight back. However, if the threat involves the use of fists, you do not have the right to pull out and use a knife on your attacker. The use of a knife is an excessive amount of force not covered under self defense. Deadly force is only justifiable if the defendant reasonable believed it was necessary to protect himself from death or serious bodily injury.

In order to determine if the force used under self defense was unreasonable, the judge and jury must consider facts regarding the circumstances surrounding the incident. For example, the look at the size, age, and physical condition of both individuals in assessing whether self defense was necessary. Under normal circumstances, a physically fit man cannot claim self defense against a child or, in the case of a domestic violence disturbance, a physically fit man cannot declare self defense against his smaller wife/partner unless a weapon is involved. The facts looked at by a judge and jury also involve the attackers reputation and whether it was a violent one, or previous convictions for violent crimes.

Acting in Defense of Another –
Under N.J.S.A. 2C:3-5, the standard for the use of force for the protection of another person is based on the similar standard applied in the use of self defense discussed above. A person’s actions are justified in protecting a third person when the actor would be justified in using the same force to protect himself against the injury being threatened to the protected person. The NJ court will analyze the facts of a particular case in which one defends another using an objective reasonable person approach. This means that the threat of injury to the third person perceived by the defendant must have been reasonable to the average person in the same situation.

The conditions stated earlier can also be applied in the protection of a third party. If the defendant has reason to belief force is necessary to protect another from an aggressor, he has the right to use the necessary force required to repel the aggressor. Unlike self defense, however, there is no duty to retreat and if the defendant is mistaken about his belief that the victim needed his help, he can still claim this defense if the circumstances make the mistake reasonable.

Defense of Property –

A person also has the right to use force against another to defend his home. A person must believe the force is necessary to prevent the crime which the aggressor is committing on his property, and prior to using the force the defendant must request that the aggressor stop his behavior unless the request endangers the defendant or the property in question. Deadly force is justifiable to combat a person committing arson, burglary, robbery, or any crime involving the theft or destruction of property if either of two requirements are met:

the defendant reasonably believes that the person against whom it is employed is using or threatening to use deadly force in the defendant’s presence. b) the defendant believes he can stop the crime being committed with deadly force but anything less will expose himself or another to danger. The same standards apply to personal property, such as a car or valuables, but the use of deadly force is never justified under these circumstances.

CALIFORNIA:

Self Defense –
Self defense means using force to protect yourself from danger. When you argue self defense, you admit to engaging in behavior that is, under other circumstances, against the law. This is known as an affirmative defense. You admit to committing a crime, but explain that you only did so to protect yourself.

In other words, your argument is based on the fact that if you had not engaged in the use of force or violence, you (or someone else) would have been harmed in some way.

Some states require you to retreat or flee from harm before resorting to the use of force in self defense. California, however, embraces the idea of standing your ground. Stand Your Ground laws acknowledge that you do not have to retreat when faced with imminent danger.

California does not have a dedicated Stand Your Ground Law. However, jury instructions presented in CALCRIM 505 do not require juries to consider whether or not you had the ability to escape danger.

When Can I Act in Self Defense?
In California, you have the right to act in self defense when you have a reasonable belief that you are in danger. The use of force may be justified when you have a reasonable belief that you are about to be physically harmed in some way. Examples of when self-defense may be appropriate include the imminent threat of:

Rape
Murder
Mayhem
Robbery, or
Any other act that puts you at risk of suffering great bodily harm.
Establishing Self Defense
In order to successfully establish that you acted in self defense, California law requires you to prove each of the following things:

You had a reasonable belief that you were in imminent danger of suffering harm or death,
You had a reasonable belief that using force was necessary to prevent such harm, and
You only used an amount of force that was necessary to stop the threat.
Imminent Danger
Imminent danger means a threat that is happening right now at this very moment. Imminent danger must be current and immediate. Danger that is perceived to be an issue in the near future or at some other point in time will not be considered imminent.

You only have the right to justify the use of force or violence when danger is imminent.

Reasonable Belief
You must have a reasonable belief that (1) danger is imminent, and (2) force is necessary to protect yourself. When is a belief considered to be reasonable?

Whether or not a belief is reasonable is a question of fact. A jury will consider what a reasonable person would have done if they had been in your exact situation. If that person would have acted similarly, your actions will be considered reasonable. If that person would not have reasonably believed that there was a threat, or that force was necessary, your actions will not be considered reasonable.

Proportionate Force
The degree of force used to protect yourself must be proportionate to the danger you face. For example, it would not be justified to use deadly force to protect yourself from a simple assault and battery. The level of force used must simply be sufficient to stop the imminent threat of danger.

Is deadly force ever permitted? Yes. You may be justified in using deadly force if your own life is in danger, someone else’s life is in danger, and/or someone forcibly breaks into your home.

Can I Argue Self Defense If I Started a Fight?
Self-defense is usually only a valid argument when you are not the initial aggressor. This means that you are simply reacting to another person’s aggressive and dangerous behavior. If you started a fight, you are generally prohibited from using the argument of self defense if something goes wrong.

However, you may be able to argue self defense successfully if:

You clearly indicated that you wanted to stop the fight and made a good faith effort to do so, or
The other person, after being attacked with non-deadly force, used deadly force against you.

Defense of Others-
California law not only permits you to act in defense of yourself, but in the defense of others, as well. In order to establish that you acted in self defense of another person, you must prove you had a reasonable belief that force was necessary to protect another person from an imminent threat of danger.

The degree of force used to protect another person must be proportionate to the threat of danger posed in that moment.

Home Defense
You have the right to be free from harm and threats of danger when you are inside of your own home. If someone forcibly breaks into your home, this right is infringed. California’s Castle Doctrine explains that you have the right to use deadly force to protect yourself and your family in the event of a break in.

California Penal Code 198.5 PC explains that a reasonable threat of imminent danger will automatically be presumed if:

A person, other than a family member, forcibly breaks into and enters your home, and
You had knowledge of this forcible break-in.
You do not have to seek safety or retreat before resorting to the use of force. In fact, you can even pursue the attacker with force until the threat against you no longer exists.

TEXAS AND FLORIDA:

Shoot to kill.