2A - Wrongfully charged resident found not guilty!

[seekhay 0]

Your statement appears to be in conflict with what these lawyers say...

 

"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."

 

http://www.njlaws.com/self-defense.htm

 

Believe me, I hope you're right, but some evidence would be great.

They selectively quoted the statute, the next paragraph included changes it a tad...

 

 

(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

 

 

This is from http://lis.njleg.state.nj.us/cgi-bin/om_isapi.dll?clientID=152448&Depth=2&advquery=%222C%3a3-4%22&depth=4&expandheadings=on&headingswithhits=on&hitsperheading=on&infobase=statutes.nfo&rank=%20%20&record={16E8}&softpage=Doc_Frame_PG42&wordsaroundhits=10&zz=

 

Edited to add a better link to the original text.

[Darrenf 422]

They selectively quoted the statute, the next paragraph included changes it a tad...

 

 

 

 

This is from ftp://www.njleg.state.nj.us/20082009/A0500/159_I1.PDF

 

 

 

That still says you have a duty to retreat, just not a duty to retreat FROM your dwelling.  That means you don't have to leave your home, but if you still have a room behind you to retreat to and you think you can safely get there, you have a duty to do so.

[mipafox 438]

2C:3-11. Definitions.

 

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.

 

 

[seekhay 0]

That still says you have a duty to retreat, just not a duty to retreat FROM your dwelling.  That means you don't have to leave your home, but if you still have a room behind you to retreat to and you think you can safely get there, you have a duty to do so.

.

I think that is a matter of interpretation, I would argue that there is no need to retreat anywhere inside the dwelling. But to your point, it is rather vague in its wording.

[siderman 1,137]

I think a lot of the confusion about all this duty retreat stuff is beacause there are two pcs to the puzzle.Way I read it you have no duty to retreat in a criminal trial, but there is the civil aspect that may be where you should have retreated to safety if given the opportunity.

[mipafox 438]

I think a lot of the confusion about all this duty retreat stuff is beacause there are two pcs to the puzzle.Way I read it you have no duty to retreat in a criminal trial, but there is the civil aspect that may be where you should have retreated to safety if given the opportunity.

I don't know about Jersey but in most jurisdictions Castle Doctrine and Stand Your Ground usually have three components, although they may have less:

 

1. No duty to retreat under most circumstances

2. Civil immunity or affirmative defense in the absence or a criminal conviction

3. Even admitting to homicide, burden of proof that homicide was not self defense is the burden of the prosecution under most circumstances

- 3.1 Criminal charges cannot be pursued unless the burden is met

 

Layman's understanding of it. Anyway, most places there is civil immunity or defense.

[1LtCAP 4,263]

That still says you have a duty to retreat, just not a duty to retreat FROM your dwelling.  That means you don't have to leave your home, but if you still have a room behind you to retreat to and you think you can safely get there, you have a duty to do so.

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.

L.1978, c.95; 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:

[mipafox 438]

1LtCAP,

 

You should post the actual section you are quoting to make it easier for people to find. Look above and see what I did.

[Darrenf 422]

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.

L.1978, c.95; 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:

 

 

You left out the section above what you quoted....

 

(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"

 

I bolded the pertinent parts.

 

http://www.njlaws.com/Use_of_Force_in_Self_Protection_2C.3-4.htm

[1LtCAP 4,263]

1LtCAP, You should post the actual section you are quoting to make it easier for people to find. Look above and see what I did.

i'll paste in the link.....

http://www.njlaws.com/2C.3-4SelfDefense.htm

[Darrenf 422]

If there are any lawyers here that can speak authoritatively, instead of us all speculating, that would be great.

[1LtCAP 4,263]

You left out the section above what you quoted....

 

(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"

 

I bolded the pertinent parts.

 

http://www.njlaws.com/Use_of_Force_in_Self_Protection_2C.3-4.htm

the bolded part is not applicable inside the dwelling, but rather outside on the property. that's why i left it out.

[Darrenf 422]

the bolded part is not applicable inside the dwelling, but rather outside on the property. that's why i left it out.

 

Can you point to the statute that specifies that please? Why would the subsection (i) mention retreating FROM the dwelling if the section it is in is not applicable to being inside the dwelling?

[1LtCAP 4,263]

Can you point to the statute that specifies that please? Why would the subsection (i) mention retreating FROM the dwelling if the section it is in is not applicable to being inside the dwelling?

you talking about this part? ::::::

(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.::::::::

[Darrenf 422]

you talking about this part? ::::::

(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.::::::::

 

 

And that shows you do not need to retreat while inside the dwelling where?  

[mipafox 438]

i'll paste in the link.....

http://www.njlaws.com/2C.3-4SelfDefense.htm

1LtCAP,

 

If you are going to quote a section of law, please quote the section title so people know what part of the law it is from. For instance:

 

2C:3-4. Use of force in self-protection

 

I would also suggest people refer to a source of law that shows all of the law, not just a hand-picked section. At the moment I am having good results with this for the current discussion:

 

http://law.onecle.com/new-jersey/2c-the-new-jersey-code-of-criminal-justice/3-4.html

 

it is easy to navigate through the law to find the general requirements, definitions, other sections, etc. I'm not vouching for it or hanging my freedom on it but it seems to be comprehensive if nothing else.

 

If there are any lawyers here that can speak authoritatively, instead of us all speculating, that would be great.

It doesn't work that way. You have to read it yourself if you want to know. Get started.

[Darrenf 422]

 

It doesn't work that way. You have to read it yourself if you want to know. Get started.

 

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.

[1LtCAP 4,263]

And that shows you do not need to retreat while inside the dwelling where?  

are you reading it?

 

(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

 

 the actor is the person using force against the intruder. it is plain as day, which is rather rare for nj statutes.

 

 2C:3-4 section 2 paragraph b, sub paragraphs i and ii.

 

 i have the entire 2c bookmarked on my home puter. i'll link it when i get home.

[Darrenf 422]

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

[1LtCAP 4,263]

statutes are not opinions.

[Darrenf 422]

are you reading it?

 

(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

 

 the actor is the person using force against the intruder. it is plain as day, which is rather rare for nj statutes.

 

 2C:3-4 section 2 paragraph b, sub paragraphs i and ii.

 

 i have the entire 2c bookmarked on my home puter. i'll link it when i get home.

Clear as day it says FROM his dwelling.  In English that means to leave your dwelling.  Of course in a court of law that might be debatable, and that is what I am trying to determine.  Maybe when you get home we can find out more.

[Darrenf 422]

statutes are not opinions.

Thanks for that, but judgments handed down in court are opinions, and since that is what can determine your fate, that seems to be quite important.

[djg0770 481]

No lawyer, properly trained, will ever provide advice on an internet forum as that opens him up to the potential for severe liabilities.

 

As a result, we are then required to read the law for ourselves and attempt to make a determination (for ourselves individually) as to what we think the law states.  Laws (as with all rules) are open to interpretation, and have been since the first law was written.

[Darrenf 422]

No lawyer, properly trained, will ever provide advice on an internet forum as that opens him up to the potential for severe liabilities.

 

As a result, we are then required to read the law for ourselves and attempt to make a determination (for ourselves individually) as to what we think the law states.  Laws (as with all rules) are open to interpretation, and have been since the first law was written.

 

Not true, in fact there are forums dedicated to just such things.  http://forum.freeadvice.com/ for example.  

 

And I'm not even asking for advice, just expert interpretation of a statute.  Any lawyer, properly trained, can load the answer with caveats in order to eliminate liability. 

 

Just for sh&ts and giggles I just posed the question at this website....http://www.lawyers.com/Ask-a-Lawyer/Ask-a-Question.html?msg=confirm&questionid=870889&aopid=731

 

If I hear back from them I'll post their response here.

[leahcim 680]

I believe the case law would favor no duty to retreat within your dwelling and possibly even appurtenances, with some exceptions for people who have a legal right to be there (e.g. room mates) and provided you did not initiate the dispute.  In the Martinez case, they say deadly force is allowable, with no duty to retreat, within your home and including your porch.  The NJ Supreme Court in remanding Bonano stated the right to stand at the threshold to your home and "kill any person who attempts to commit a felony therein, or who attempts to enter by force for the purpose of commiting a felony, or of inflicting great bodily harm upon an inmate."

One caveat, Martinez and Bonano were decided in 1989 and 1971, current NJ justices may interpret differently today.

 

http://nj.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19890113_0041569.nj.htm/qx

"There is an exception to this rule, however. The exception is that a man need not retreat when attacked in his own dwelling house. A man is generally not bound to retreat from his house. He may stand his ground and resist an attack even to the extent of employing deadly force if he reasonably believes he is in danger of losing his life or suffering serious bodily harm."

 

And from the NJ Supreme Court in State v. Bonano:

http://law.justia.com/cases/new-jersey/supreme-court/1971/59-n-j-515-0.html

"A man is not bound to retreat from his house. He may stand his ground there and kill any person who attempts to commit a felony therein, or who attempts to enter by force for the purpose of commiting a felony, or of inflicting great bodily harm upon an inmate. In such a case the owner or any member of the family, or even a lodger in the house, may meet the intruder at the threshold, and prevent him from entering by any means rendered necessary by the exigency, even to the taking of his life, and the homicide will be justifiable. [Clark & Marshall, Law of Crimes (7th ed.) Sec. 7.03, p. 493] *520 See also 1 Wharton, Criminal Law and Procedure (Anderson ed. 1957), § 239."

[Darrenf 422]

I believe the case law would favor no duty to retreat within your dwelling and possibly even appurtenances, with some exceptions for people who have a legal right to be there (e.g. room mates) and provided you did not initiate the dispute.  In the Martinez case, they say deadly force is allowable, with no duty to retreat, within your home and including your porch.  The NJ Supreme Court in remanding Bonano stated the right to stand at the threshold to your home and "kill any person who attempts to commit a felony therein, or who attempts to enter by force for the purpose of commiting a felony, or of inflicting great bodily harm upon an inmate."

One caveat, Martinez and Bonano were decided in 1989 and 1971, current NJ justices may interpret differently today.

 

http://nj.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19890113_0041569.nj.htm/qx

"There is an exception to this rule, however. The exception is that a man need not retreat when attacked in his own dwelling house. A man is generally not bound to retreat from his house. He may stand his ground and resist an attack even to the extent of employing deadly force if he reasonably believes he is in danger of losing his life or suffering serious bodily harm."

 

And from the NJ Supreme Court in State v. Bonano:

http://law.justia.com/cases/new-jersey/supreme-court/1971/59-n-j-515-0.html

"A man is not bound to retreat from his house. He may stand his ground there and kill any person who attempts to commit a felony therein, or who attempts to enter by force for the purpose of commiting a felony, or of inflicting great bodily harm upon an inmate. In such a case the owner or any member of the family, or even a lodger in the house, may meet the intruder at the threshold, and prevent him from entering by any means rendered necessary by the exigency, even to the taking of his life, and the homicide will be justifiable. [Clark & Marshall, Law of Crimes (7th ed.) Sec. 7.03, p. 493] *520 See also 1 Wharton, Criminal Law and Procedure (Anderson ed. 1957), § 239."

 

Would be great were it still that way, but a lot has changed since then.  This document in the link was last updated in 2011.  https://www.judiciary.state.nj.us/criminal/charges/justif001.pdf

 

Note paragraph 2 on page 3.  It even states a porch is included in the retreat requirement.

"If you find that the defendant knew that he/she could avoid the necessity of using deadly force by retreating, provided that the defendant knew he/she could do so with complete safety, then the defense is not available to him/her.4 [CHARGE WHERE APPLICABLE: A dwelling includes a porch or other similar structure.]5"

[Darrenf 422]

So I got a response...

 

[1LtCAP 4,263]

he didn't specify where.

[1LtCAP 4,263]

i'll go by the statutes, unless mr nappen comes in here and says different........

[Darrenf 422]

he didn't specify where.

My question to him was specifically about inside your residence.