New Jersey Self Defense Law

New Jersey Self defense exists when the defendant reasonably believes that such force is immediately necessary to protect himself against the use of unlawful force by another person on the present occasion.

The defendant’s honest belief in the necessity of using force is a requirement for the justification of self defense.

New Jersey self defense requires the defendant to have a reasonable belief about three subjects:

The force defendant is using must be immediately necessary – in other words the defendant must believe that the unlawful force will be used against him at the time that he acts;

the force used against the defendant must be unlawful – this defense is not available to the aggressor;

the amount of force which the defendant uses must be necessary – this defense is unavailable if the actor is unreasonable in his belief about the amount of force necessary and if acting on this unreasonable belief the actor uses an excessive amount of force.

The defense is unavailable if the defendant’s belief about any of these three subjects is unreasonable.

In determining whether the belief is unreasonable the trier of fact - Judge or Jury - must consider the particular facts of the case.

These would include the age, size and physical condition of the parties.

Other facts to be considered are threats made or prior altercations between the parties.

The trier of the fact can also consider the reputation for violence of the other party as it was known to the defendant.

The reasonableness of a defendant's belief is to be determined by the jury and not the defendant in light of the circumstance existing at the time of the offense.

If the defendants belief about the need to use force to protect himself is unreasonable then the defense of self defense is unavailable.

A victim's character is admissible to prove that the victim was the aggressor, so a victim's conviction of a violent crime may be admitted to establish that he or she was the aggressor.

Deadly force is justifiable only if the actor believes it to be necessary to protect himself against death or serious bodily injury.

There is a duty to retreat first.

New Jersey Self defense will be allowed as an excuse to a charge of unlawful possession of a firearm only in those circumstances where an individual arms himself to meet an “immediate” danger.

Use of Force For Protection Other Persons

New Jersey self defense allows for the use of force against another to protect a third person when the actor would have been justified in using force to protect himself against injury.

In order for this defense to be available the actor must reasonably believe that under the circumstances the person he seeks to protect would be justified in using such protective force, and that this intervention is necessary for the protection of that person.

The defense is available if the actor is mistaken about his belief about the facts or the need to aid the victim, but the mistake is reasonable under the circumstances as they appear to the actor.

There is no duty to retreat as in the case of use of deadly force in self defense.

The burden of disproving the claim of defense of another is on the state.

Use of Force in Defense of Premises or Personal Property

New Jersey self defense gives a person the right to use force against another to protect real property – home - but first the defendant must be in possession or control of the premises or licensed or privileged to be there.

In addition, the defendant must reasonably believe that the force is necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass – unlicensed or unprivileged entry – or against a person committing a more serious offense.

Prior to using force the defendant must request the intruder to stop interfering with the property unless the request is useless or dangerous to himself or another to make the request or if substantial harm would be done to the property before the request can effectively be made.

A trespasser cannot be expelled by the use of force if the defendant knows that the exclusion will expose him to a substantial danger of serious bodily harm.

Deadly force may be used to repel a person attempting or actually committing arson, burglary, robbery, or other criminal theft or property destruction.

However, either of two sets of circumstances must be present before deadly force can be used for the protection of premises.

First, the occupant reasonably believes that the person against whom it is employed is using or threatening to use deadly force in the occupant’s presence.

Or second, a person reasonably believes he could terminate or prevent the commission of a crime but if he used less than deadly force he would expose himself or another to a substantial danger of bodily harm.

Same standards apply to protecting personal property except there is never a justification to use deadly force in defense of personal property – no justification for shooting at thief attempting to steal one’s automobile.

Click here if you would like to speak to a New Jersey criminal defense attorney about a possible New Jersey self defense claim.