Self-defense is the right of a person to defend against any unlawful force. In New Jersey, the use of force against another in self-defense is justifiable “when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.” N.J.S.A. 2C:3-4(a) (“Use of Force in Self Protection”). In fact, “the doctrine of self-defense exonerates a person from criminal liability even though his belief in the need to use force to repel an attack is later proven mistaken.” State v. Bryant, 288 N.J. Super. 27, 34 (App. Div. 1996).

“A reasonable belief is one which would be held by a person of ordinary prudence and intelligence situated as [the] defendant.” Model Jury Charge (Criminal) “Justification-Self Defense” (NJ.S.A. 2C:3-4) (rev. Nov. 13, 2023). For example, even if the altercation began as “mutual combat” does not necessarily preclude a claim of self-defense. State v. Gentry, 439 N.J. Super. 57, 69 (App. Div. 2015). The question of the reasonableness of the actor’s belief “is to be determined by the jury.” State v. Kelly, 97 N.J. 178, 200 (2008).

Our Evidence Rules, N.J.R.E. 404(b) (Character Evidence), “permit defendants alleging self-defense to produce prior-acts evidence that speaks to the issue of the reasonableness of the defendant’s belief that deadly force was necessary.” State v. Jenewicz, 193 N.J. 440, 462 (2008). See also State v. Gartland, 149 N.J. 456, 473 (1997) (“Our courts have always admitted evidence of a victim’s violent character as relevant to a claim of self-defense so long as the defendant had knowledge of the dangerous and violent character of the victim.”) For example, in State v. Jenewicz, 193 N.J. at 440, the Court held that the trial court erred in excluding both expert and lay opinion regarding the victim’s propensity for violence as a result of his cocaine addiction.

“The force used by the defendant must not be significantly greater than, and must be proportionate to, the unlawful force threatened or used against the defendant.” Model Jury Charge (Criminal) “Justification-Self Defense” (NJ.S.A. 2C:3-4) (rev. Nov. 13, 2023). Thus, the use of deadly force is not justifiable under N.J.S.A. 2C:3-4 “unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm. . . .” N.J.S.A. 2C:3-4(b)(2). The duty to retreat applies when the actor resorts to the use of deadly force, except in one’s own dwelling. State v. Macchia, 253 N.J. 232, 246 (2023).

Deadly force is defined in part in N.J.S.A. 2C:3-11 as:

force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm. Purposely firing a firearm in the direction of another person or at a vehicle, building or structure in which another person is believed to be constitutes deadly force unless the firearm is loaded with less-lethal ammunition and fired by a law enforcement officer in the performance of the officer’s official duties. A threat to cause death or serious bodily harm, by the production of a weapon or otherwise, so long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute deadly force.

Therefore, “brandishing a weapon to scare off a potential attacker constitutes a non-deadly use of force,” not deadly force. State v. Moore, 158 N.J. 292, 304 (1999) (emphasis added).

Additionally, under N.J.S.A. 2C:3-4(b) the use of force is not justifiable:

a) to resist an arrest which the actor knows is being made by a peace officer in the performance of his duties, although the arrest is unlawful, unless the peace officer employs unlawful force to effect such arrest; or
b) to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:

(i) The actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest;
(ii) The actor has been unlawfully dispossessed of the property and is making a reentry or recaption justified by section 2C:3-6; or
(iii) The actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm.

Once the issue of self-defense has been raised, the burden to disprove the issue shifts to the State. State v. Perry, 124 N.J. 128, 194 (1991); State v. Kelly, 97 N.J. 178, 200 (1984). Self-defense must be charged if the evidence, viewed most favorably to the defendant, supports that justification, and failure to do so constitutes plain error. State v. Rodriguez, 195 N.J. 165, 170 (2008)).

Criminal law is complicated and constantly changing. If you are facing criminal charges, you should immediately contact our team of experienced former prosecutors to schedule a free case review with one of our expert criminal defense attorneys. A complete understanding of criminal law by your attorney is crucial to your defense. Your rights and freedoms are in jeopardy, and you owe it to yourself to act. We are available to provide immediate assistance and further counsel on your case at 862-315-7929.

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