As somebody experienced in the martial arts (I have a brown belt in Karate and 2.5 years of experience in Brazilian Jiu Jitsu), I'm often asked about New Jersey's SELF-DEFENSE LAWS. Sadly, much like N.J.'s gun and knife laws, our laws on self-defense (contained in N.J.S.A. § 2C:3-4) are a bit convoluted and involve a great deal of uncertainty for lawyers, judges, and police. Sadly, they offer little in the way of guidance for normal civilians who want to stay safe, as well as obey the law.

As a legal concept, "self-defense" is what we call a "legal justification," or "affirmative defense." It means that you did commit the act at issue, but that you had a certain basis or reason to act in such a manner, such that you cannot be found criminally or civilly liable. Here, the burden of proof is on the Defendant to show that said defense applies to his case.

The first thing Defendants need to prove is that they tried to exercise their "duty to retreat." If somebody tries to attack you, the law mandates that you try to get away, rather than fight back, if this is at all possible. That said, the "duty to retreat" does not apply if you are coming to the rescue of a third party.

The second thing Defendants need to prove when arguing self-defense is that he had an honest and reasonable belief that the force he used was immediately necessary. This means the Defendant had to believe that illegal force was going to be used against him at the time he (the Defendant) used the force. You can't be punched in the face by Mr. X one day and then come back a week later, punch Mr. X in the face and claim "self-defense." The issue of immediacy, here, is paramount, as is the concept of having an honest and reasonable belief. If a petite person was slapping a large prizefighter, the prizefighter (due to his size and strength) cannot have an honest or reasonable belief that he needed to pummel and knock-out the petite person in order to escape danger.

The third thing Defendants need to prove when arguing self-defense is and honest and reasonable belief that the force used against the Defendant (by the aggressor) was unlawful. Basically, this means that somebody needs to be the aggressor against you. You are not allowed to argue self-defense if you initiated the violent encounter and were the aggressor.

The fourth thing Defendants need to prove when arguing self-defense is an honest and reasonable belief that the degree of force used in defending himself was necessary. If somebody punches you, and you respond by shooting them, you can't argue self-defense. This is because you had an unreasonable belief in the amount of force necessary to defend yourself. If you had an unreasonable belief in the amount of force needed for self-defense, and you used excessive force, you cannot use the affirmative defense of "self defense" in court.

As mentioned above, if you are coming to the aid of a third party, you have no duty to retreat. Furthermore, even if you are mistaken about the need for such intervention, the courts will still allow you to use this defense if such mistake was reasonable under the circumstances. That said, you need to have a reasonable and honest belief that the third party is being threatened with death or serious bodily injury.

When it comes to defending your HOME, a whole different set of variables enter the equation.

First, there is no duty to retreat in your home (unless you are the initial aggressor).

Second, you must have an honest and reasonable belief that force is needed to prevent a crime on your property.

third, prior to using force, you need to verbally request that the offender stop their behavior and leave (unless, under the circumstances, such a request is useless, or puts you or your property in greater danger)

Fourth, one must believe that the force used was necessary to prevent the crime which the aggressor is committing on one's property,

The law also defines what is "reasonable" in terms of the degree of force used, whether in the home or on the street. The law says that a reasonable belief in the use of force exists when: (1) the defendant was at his or her own house, (2) the encounter/intrusion was “sudden and unexpected,” and (3) the defendant had to take immediate action against the intruder/attacker.

However, even this isn’t enough. In addition, one of the following factors must have also been in place:

(a) The defendant “reasonably believed that the intruder would inflict personal injury upon the actor or others in the dwelling.” OR

(b) The defendant “demanded that the intruder disarm, surrender or withdraw, and the intruder refused to do so.”

Finally, one is ALMOST NEVER PERMITTED to utilize "deadly force" in any self-defense situation, unless “unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm.” In a sense, one has to prove that the aggressor had the intent to kill or seriously injure you or a loved one, that it was an immediate threat, and that no other alternatives were available.

If you live in Camden, Burlington or Gloucester County, have been charged with a crime and believe you acted in self-defense, then contact the Law Office of Robert J. Wittmann for a free consultation at 856-873-3730.

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