2A - Wrongfully charged resident found not guilty!

[1LtCAP 4,262]

My question to him was specifically about inside your residence.

i understand you may have asked him a specific question....but that was by no means a specific answer. specific answer would've been "in nj you have a duty to retreat within your home."

[Darrenf 422]

i understand you may have asked him a specific question....but that was by no means a specific answer. specific answer would've been "in nj you have a duty to retreat within your home."

You are desperately clinging to this notion that your interpretation is correct. He knew the context, I knew the context. That you choose to ignore that is your prerogative. Knowing how anti 2nd amendment this state is, I'm surprised that anyone would choose to err the way you are. I'll stick with his opinion until another lawyer can say differently and show reason.

 

 

[PK90 3,569]

Does this really matter? Will you cower away into a little corner of your bedroom closet, or will you stand your ground at the door with your gun, and perhaps seek out the intruder within your home? I know what I would do.

[Dan 177]

You are desperately clinging to this notion that your interpretation is correct. He knew the context, I knew the context. That you choose to ignore that is your prerogative. Knowing how anti 2nd amendment this state is, I'm surprised that anyone would choose to err the way you are. I'll stick with his opinion until another lawyer can say differently and show reason.

 

OK lets break it down for you..

 

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. This is saying that you can use deadly force on intruders who are unlawfulling in your home and when it is justifiable to protect yourself or other people from being hurt by the bad guy. (no mention of you need to first try running away)

(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: This is saying that you can take instant and immediate action (again nothing about first needing to try to retreat as that would not be instant)

(a)The actor reasonably believed that the intruder would inflict personal injury upon the actor or others in the dwelling; or This is setting rules under which justifiable use of force is, so you can't go kill the vaccum salesman that you invited in  your home because you are a sociopath.

(b)The actor demanded that the intruder disarm, surrender or withdraw, and the intruder refused to do so. Some good advice to follow in any defense situation, demand the intruder drop their weapons and leave. Give them a chance for THEM to retreat.... (nothing about you needing to retreat here)

(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. Well you think this spells it out when it comes to your duty to retreat in your own home. It is plainly explaining that you do not have a duty to retreat under duress from an unlawful intruder in your own home. You do not have to surrender your items or give up ground in your own home. You do not have to follow unlawful orders from the intruder. Now on the street, it is different, NJ law does say that if you can retreat or give up ground in order to avoid using self defense force, even an unlawful order from some bad guy like "get out of my face or I'll kill you"... you are obligated to try that first. Not in your own home.

 

It can't be any more clear then how its listed in the statute. There's a myriad of other rules in N.J.S.2C:3-5, N.J.S.2C:3-9 that should be understood also. Roughly its common sense stuff though. When you break it all down, the law is designed to offer protections for a homeowner to protect themselves and family in their own home from a violent intruder without any duty to give up ground, run to a safe room, or dial 911 while making coffee for the bad guy. The law does not protect people who shoot someone because they got into an argument while in their house or any other BS stuff like that. There better be a tangible reason as to why a homeowner felt they needed to use deadly force. Stuff like kicking in your door and charging at you with a machete... pretty believable. Lost guy ringing the doorbell at night... not so much.

[1LtCAP 4,262]

Does this really matter? Will you coward away into a little corner of your bedroom closet, or will you stand your ground at the door with your gun, and perhaps seek out the intruder within your home? I know what I would do.

i know what i will do. there is no place within my home to safely retreat to, nor is there a safe egress. i will not cower in a corner. if mom's up here(she will be up here till just after christmas), she is my responsibility. no one will get past me to hurt her. that's about all i can really say about that.

[1LtCAP 4,262]

OK lets break it down for you..

 

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. This is saying that you can use deadly force on intruders who are unlawfulling in your home and when it is justifiable to protect yourself or other people from being hurt by the bad guy. (no mention of you need to first try running away)

(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: This is saying that you can take instant and immediate action (again nothing about first needing to try to retreat as that would not be instant)

(a)The actor reasonably believed that the intruder would inflict personal injury upon the actor or others in the dwelling; or This is setting rules under which justifiable use of force is, so you can't go kill the vaccum salesman that you invited in  your home because you are a sociopath.

(b)The actor demanded that the intruder disarm, surrender or withdraw, and the intruder refused to do so. Some good advice to follow in any defense situation, demand the intruder drop their weapons and leave. Give them a chance for THEM to retreat.... (nothing about you needing to retreat here)

(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. Well you think this spells it out when it comes to your duty to retreat in your own home. It is plainly explaining that you do not have a duty to retreat under duress from an unlawful intruder in your own home. You do not have to surrender your items or give up ground in your own home. You do not have to follow unlawful orders from the intruder. Now on the street, it is different, NJ law does say that if you can retreat or give up ground in order to avoid using self defense force, even an unlawful order from some bad guy like "get out of my face or I'll kill you"... you are obligated to try that first. Not in your own home.

 

It can't be any more clear then how its listed in the statute. There's a myriad of other rules in N.J.S.2C:3-5, N.J.S.2C:3-9 that should be understood also. Roughly its common sense stuff though. When you break it all down, the law is designed to offer protections for a homeowner to protect themselves and family in their own home from a violent intruder without any duty to give up ground, run to a safe room, or dial 911 while making coffee for the bad guy. The law does not protect people who shoot someone because they got into an argument while in their house or any other BS stuff like that. There better be a tangible reason as to why a homeowner felt they needed to use deadly force. Stuff like kicking in your door and charging at you with a machete... pretty believable. Lost guy ringing the doorbell at night... not so much.

nice breakdown. i also forgot to mention.....that lawyer gave the "safe" response.

[Nikos 31]

The law is written in a way to *try* and address various scenarios as to how a person can justifiably use deadly force on his/her own property. So far, the argument seems to only address two able bodied persons: an intruder (possible threat) and a homeowner. 

 

Let's change the scenario slightly: What duty does an armed homeowner have to retreat if he/she has a mobility issue (sprained ankle, prosthetic, arthritis or even a cramp?) Or what duty does one have to retreat if there's a child in the room? Are you supposed to grab the child and tuck him/her like a football under your arm and run to the next room?

 

Same law applies which repeatedly mentions the "actor" or "himself" and "others".

[Darrenf 422]

The law is written in a way to *try* and address various scenarios as to how a person can justifiably use deadly force on his/her own property. So far, the argument seems to only address two able bodied persons: an intruder (possible threat) and a homeowner. 

 

Let's change the scenario slightly: What duty does an armed homeowner have to retreat if he/she has a mobility issue (sprained ankle, prosthetic, arthritis or even a cramp?) Or what duty does one have to retreat if there's a child in the room? Are you supposed to grab the child and tuck him/her like a football under your arm and run to the next room?

 

Same law applies which repeatedly mentions the "actor" or "himself" and "others".

 

The law states "safely" retreat.  If you have a mobility issue that would seem to negate that.

[Nikos 31]

The law states "safely" retreat.  If you have a mobility issue that would seem to negate that.

And burden of proof is upon the state to prove beyond a reasonable doubt that the homeowner could have "safely" retreated at that particular time. 

[Dan 177]

The law states "safely" retreat.  If you have a mobility issue that would seem to negate that.

 

The law when it comes to you in your own home does not stipulate any kind of retreat is necessary. You do not have to comply with unlawful orders by an intruder. Where do you get this "safely retreat" stuff from? Perhaps that is from the statutes on self defense from outside the home?

[Darrenf 422]

The law when it comes to you in your own home does not stipulate any kind of retreat is necessary. You do not have to comply with unlawful orders by an intruder. Where do you get this "safely retreat" stuff from? Perhaps that is from the statutes on self defense from outside the home?

 

 

http://www.nfpcar.org/Legal/castle.html

• New Jersey ("Statutes" link in sidebar, see New Jersey Statutes 2C:3-4, retreat required if actor knows he can avoid necessity of deadly force in complete safety, etc. EXCEPT not obliged to retreat from dwelling, unless the initial aggressor)

It does not say not required to retreat WHILE IN dwelling, it says FROM dwelling, meaning you are not required to abandon your home.  

 

This doesn't change much for me as the most common places for my wife and I to be are our living room and bedroom, both of which would not have an escape route should we have an invasion, so I wouldn't have to think about retreating anyway, but I can guarantee you  if we are in our bed at night, and the alarm goes off, we will stay in there armed until the police arrive or someone tries to enter the bedroom.  That is as far as they are likely to make it.  Being prepared means more than just having the right weapons and your plan, it means knowing that your plan operates in not only the most tactically advantageous way, but that you don't open yourself up to crappy liability issues as well.  

[Darrenf 422]

And burden of proof is upon the state to prove beyond a reasonable doubt that the homeowner could have "safely" retreated at that particular time. 

In a civil suit there is no burden on the STATE at all.

[Dan 177]

http://www.nfpcar.org/Legal/castle.html

• New Jersey ("Statutes" link in sidebar, see New Jersey Statutes 2C:3-4, retreat required if actor knows he can avoid necessity of deadly force in complete safety, etc. EXCEPT not obliged to retreat from dwelling, unless the initial aggressor)

It does not say not required to retreat WHILE IN dwelling, it says FROM dwelling, meaning you are not required to abandon your home.  

 

This doesn't change much for me as the most common places for my wife and I to be are our living room and bedroom, both of which would not have an escape route should we have an invasion, so I wouldn't have to think about retreating anyway, but I can guarantee you  if we are in our bed at night, and the alarm goes off, we will stay in there armed until the police arrive or someone tries to enter the bedroom.  That is as far as they are likely to make it.  Being prepared means more than just having the right weapons and your plan, it means knowing that your plan operates in not only the most tactically advantageous way, but that you don't open yourself up to crappy liability issues as well.  

 

You have it all wrong. Under a valid SD situation where a criminal enters your home unlawfully , you do not have to give up any ground if you feel they are there to do you or other household members under your protection harm. You do not have to cower in your bedroom. E.g. If your kid is down the hall, you have the law backing you to leave your bedroom and face the intruder directly in order to protect your kids.

 

Unless you were the initial aggressor (criminal) you do not have to retreat at all in your own home.

 

Are you even reading the statutes or just some internet person's interpretation? We're giving you the actual laws here to read for fact checking.... It even spells out what the law considers justifiable immediate use of force.

 

If you interpret the following to mean that you have some kind of obligation to retreat, nobody will change your mind.

 

 

     (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.

[Darrenf 422]

You have it all wrong. Under a valid SD situation where a criminal enters your home unlawfully , you do not have to give up any ground if you feel they are there to do you or other household members under your protection harm. You do not have to cower in your bedroom. E.g. If your kid is down the hall, you have the law backing you to leave your bedroom and face the intruder directly in order to protect your kids.

 

Unless you were the initial aggressor (criminal) you do not have to retreat at all in your own home.

 

Are you even reading the statutes or just some internet person's interpretation? We're giving you the actual laws here to read for fact checking.... It even spells out what the law considers justifiable immediate use of force.

 

If you interpret the following to mean that you have some kind of obligation to retreat, nobody will change your mind.

Like I said, it is just my wife and I, and we most likely would not have a retreat option.  And we would not be "cowered" in the bedroom, we would be in our most defensible location, and since protecting the to of us from bodily harm would be the number one priority, we would maintain that position.  If we had kids down the hall, obviously that would change things.

 

Again, the wording does not say you don't have to retreat IN your home, it says you don't have to retreat FROM your home.  Why does everyone saying you don't have to retreat leave this part out....

 

(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

 

My mind could easily be changed, if anyone can find a case where this came up recently in NJ before a judge and no duty to retreat was mentioned when an opportunity to retreat existed.  I haven't had any luck. 

 

Of course, you do what you feel is best for your situation, and I'll do what I feel is best for mine.  Rest assured, should we be in our residence we are most likely to come out on top unless the bad guys start shooting before they even enter.  Fortunately the odds of that happening are extremely slim.

[Dan 177]

Like I said, it is just my wife and I, and we most likely would not have a retreat option.  And we would not be "cowered" in the bedroom, we would be in our most defensible location, and since protecting the to of us from bodily harm would be the number one priority, we would maintain that position.  If we had kids down the hall, obviously that would change things.

 

Again, the wording does not say you don't have to retreat IN your home, it says you don't have to retreat FROM your home.  Why does everyone saying you don't have to retreat leave this part out....

 

My mind could easily be changed, if anyone can find a case where this came up recently in NJ before a judge and no duty to retreat was mentioned when an opportunity to retreat existed.  I haven't had any luck. 

 

Of course, you do what you feel is best for your situation, and I'll do what I feel is best for mine.  Rest assured, should we be in our residence we are most likely to come out on top unless the bad guys start shooting before they even enter.  Fortunately the odds of that happening are extremely slim.

 

You have to read the section in its entirety , snipping out sections doesn't work.... after subsection (b) explaining the duty to retreat... EXCEPT under the following circumstances. There are even further exceptions outlining when you do not have to withdraw or surrender possessions under any circumstances... not just from your home. This is how NJ law works. Lots of nested exceptions. Sure its a pain in the arse to figure them all out, but its been done over and over again. I just emplore you to read through everything, and take into account all of the nested exemptions. Its also basis of how all NJ gun laws work as well.

 

 

     (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.

[Darrenf 422]

You have to read the section in its entirety , snipping out sections doesn't work.... after subsection (b) explaining the duty to retreat... EXCEPT under the following circumstances. There are even further exceptions outlining when you do not have to withdraw or surrender possessions under any circumstances... not just from your home. This is how NJ law works. Lots of nested exceptions. Sure its a pain in the arse to figure them all out, but its been done over and over again. I just emplore you to read through everything, and take into account all of the nested exemptions. Its also basis of how all NJ gun laws work as well.

I appreciate your efforts. It's the wording "from" your dwelling that I'm caught up on. And I didn't even know that wording existed till I started reading the statutes as a result of this thread. I did email Evan Nappen. If I do hear back, I'll post it here.

[1LtCAP 4,262]

that's the problem. you're caught up. the part he posted in red is the important part. as mentioned time and time again. zombie breaks in, while you're sitting on the crapper......you do not have to run away, give up ground, give him any brains, nothing. it specifically states that you as the homeowner may estimate the force necessary, and exercise said force to protect yourself, your family, and your abode.

[Darrenf 422]

@Dan, do you have a link to the entire text you quoted?

[1LtCAP 4,262]

search back through the thread. there's links to it.

[siderman 1,136]

Does anyone have this book? If the answer is in there I'll have to get it...

 

http://www.evannappen.com/gun-law-books.html

  edit:never mind....

[mipafox 438]

Sure it works that way, sorry, but I'm inclined to take expert opinion over my own if I'm not educated in the subject. I can read (and do) plenty for myself, but law is a different animal, since it is always open to interpretation (take note this topic is on 2A, itself heavily debated and interpreted). If there are no lawyers here to speak on it, then it's fun and all to discuss, but I wouldn't count on any opinions in here if I had to face a judge.

What a lawyer tells you guarantees nothing, and provides you absolutely ZERO in court. By the way, the way our system works, they are wrong exactly half the time. There is always a winner and a loser. I have heard more than one lawyer give firearms advice, including in person under consultation with me as a client, that would put somebody in jail for violating firearms laws because it was indisputably wrong.

 

That's just guns. I also work with lawyers on a daily basis in business and see them screwing up legal interpretations that could get their clients in serious trouble, from time to time, and I have to correct them to protect the client.

 

It's time to put on your grown up pants and act like an adult. There is no magical profession out there that will solve all of your problems. The only person responsible for your ass is you. Your lawyer is NOT responsible for your ass. If he screws up, and you go to jail, his liability is limited under his Terms and Conditions (most likely the money you paid him) and he is certainly not going to jail with you.

 

I 100% support legal advice prior to engaging in legally perilous territory, especially when you can afford it. But if you don't know WTF you are doing, and the matter is criminal law, especially NJ firearms criminal law, the value of receiving legal advice in a vacuum is questionable.

[siderman 1,136]

Does anyone have this book? If the answer is in there I'll have to get it...

 

http://www.evannappen.com/gun-law-books.h

Have the 2014 edition but am too dumb to get it from my desk to here . Its only 2 pages on Self Defense can send some pics via pm from my cell phone to anyone who cares and knows how to post it here. I do have Nappens permission btw.

[mipafox 438]

Have the 2014 edition but am too dumb to get it from my desk to here . Its only 2 pages on Self Defense can send some pics via pm from my cell phone to anyone who cares and knows how to post it here. I do have Nappens permission btw.

I didn't know there was a new one. I see his NH one is still for sale.

 

Since he lives up there he should do one for Vermont

[1LtCAP 4,262]

i have the 2014 version at home......

[Avalanche 42]

And burden of proof is upon the state to prove beyond a reasonable doubt that the homeowner could have "safely" retreated at that particular time. 

 

 

Not sure I would rely on that in NJ.