With the recent verdict in the Treyvon Martin and George Zimmerman case, many people have asked us questions about “stand your ground” and self defense, and how the case may have been different using New Jersey law in a case with a gun crime/homicide and claimed self defense. This article is NOT about the verdict in the Zimmerman case or a commentary on Florida law, stand your ground policy, etc. Rather, we want to take the opportunity to point out some key components in New Jersey law regarding self defense and use of deadly force. And we point out some differences when you compare Florida law to New Jersey.Related: Criminal Law, What Happens on the First Court Date if Arrested?, Transporting firearms in New Jersey.
New Jersey Law on Self Defense
In New Jersey, a defendant accused of an assault or homicide/murder may raise the defense of justification, also known as self defense. The law says, “The use of force upon or toward another person 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.” In other words, self defense is the right of a person to defend against any unlawful force. Self defense is also the right of a person to defend against seriously threatened unlawful force that is actually pending or reasonably anticipated.
Since it is a criminal case, the state has the burden to prove everything beyond a reasonable doubt. In New Jersey, depending on the facts of the case, the state generally needs to prove that (1) the defendant did not reasonably believe that he was in imminent danger, (2) the defendant did not reasonably believe that the use of force was not immediately necessary, (3) the victim had the lawful right to use force in the first place (for example, the victim was a police officer trying to make an arrest), (4) the defendant did not reasonably believe that use of force was necessary to protect himself, and (5) the defendant did not reasonably believe that the amount of force used was necessary.
Note that this is a lot for the state to prove. The defendant has NOTHING that he has to prove. Depending on the facts, the state may have an easy time proving all of these elements. In other cases, the evidence may be spotty and the state will have a tough time proving everything. If the prosecutor is not able to prove just one of these items, then the defense will succeed and the defendant would be found not guilty.
Use of Deadly Force in New Jersey
If the defendant used deadly force, then the case becomes a little more complicated. A person is only allowed to use deadly force when he is faced with deadly force. So the prosecutor must also prove that the defendant was NOT faced with deadly force (for example, they could prove that the victim attacked the defendant, but the victim only punched the defendant, which wasn’t “deadly force”). The state would also have to prove that the defendant did not reasonably believe that he needed to use deadly force to protect himself from death or serious injury.
Can You “Stand Your Ground” in New Jersey?
A term that was used a lot in the media regarding the Treyvon Martin case was Florida’s stand your ground policy. The relevant portion of the Florida statute says:
A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
New Jersey does not have such a law. In New Jersey, the defense of self defense will fail if the state can prove beyond a reasonable doubt that the defendant knew that he could avoid using deadly force by retreating (i.e. running away), with complete safety. The only exception is if you are in your home (or on your porch) – in such a situation you have no duty to retreat and may meet force with force. In Florida, a person is always allowed to meet force with force, regardless of where they are.
The one other issue from the Zimmerman case where New Jersey law is a little different is the situation where a defendant actually provoked the victim to attack him. In New Jersey, if the state proves beyond a reasonable doubt that the defendant provoked or incited the use of force against himself/herself in the same encounter, then the defense is not available to him/her. Florida has a similar law, but with two exceptions. The defense is still available if the defendant initially provoked the use of force against himself, and:
a. The force asserted toward the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on the victim. OR
b. In good faith, the defendant withdrew from physical contact with the victim and clearly indicated to the victim that he wanted to withdraw and stop the use of deadly force, but the victim continued or resumed the use of force.
That is the big difference between New Jersey law and Florida law, as it pertains to this issue. All of the other elements are roughly the same. Would the case against George Zimmerman resulted in a different verdict under New Jersey law? No one will ever know. We could speculate that the prosecutor in a similar New Jersey case would likely argue that someone like Zimmerman could have ran away rather than use deadly force. But for the curious, the issue of retreat is the key difference between the laws of the two states.
New Jersey Gun Crime Defense Attorney – Free Consultation With a Skilled Attorney
Remember, the police and prosecutors have teams of people working to put weapons offenders in jail. In the process, they may overstep their bounds or arrest innocent people. And gun crimes in New Jersey all have mandatory minimum jail sentences. If you have any question or you or a loved one were accused of possession of a controlled dangerous substance, please do not hesitate to contact us for a 100% free consultation.
Raff & Raff, LLP
Attorneys at Law
30 Church Street
Paterson, NJ 07505
Tel: (973) 742-1917Based in Paterson, New Jersey, Raff & Raff, LLP services clients in the communities of Bloomingdale, Clifton, Haledon, Hawthorne, Little Falls, Passaic, Paterson, Pompton Lakes, Prospect Park, Ringwood, Totowa, Wanaque, Wayne, West Milford, Woodland Park, Allendale, Alpine, Bergenfield, Bogota, Carlstadt, Cliffside Park, Closter, Cresskill, Demarest, Dumont, East Rutherford, Edgewater, Elmwood Park, Emerson, Englewood, Fair Lawn, Fort Lee, Franklin Lakes, Garfield, Glenn Rock, Hackensack, Hasbrouck Heights, Haworth, Hillsdale, Ho-Ho-Kus, Leonia, Little Ferry, Lodi, Lyndhurst, Mahwah, Maywood, Midland Park, Montvale, Moonachie, New Milford, North Arlington, Northvale, Norwood, Oakland, Old Tappan, Oradell, Palisades Park, Paramus, Park Ridge, Ramsey, Ridgefield, Ridgewood, River Edge, River Vale, Rochelle Park, Rockleigh, Rutherford, Saddle Brook, Saddle River, Teaneck, Tenafly, Teterboro, Waldwick, Wallington, Westwood, Wood-Ridge, Woodcliff Lake, Wyckoff, Belleville, Bloomfield, Caldwell, Cedar Grove, Orange, Essex Fells, Fairfield, Glen Ridge, Irvington, Livingston, Maplewood, Millburn, Montclair, Newark, North Caldwell, Nutley, Roseland, Verona, Bayonne, Jersey City, Hoboken, Union City, West New York, Guttenberg, Secaucus, Kearney, Harrison, North Bergen, Weehawken, Elizabeth, Linden, Plainsfield, Rahway, Union, Scotch Plains, Clark, Cranford, Hillside, Westfield, Roselle, and surrounding areas.
Fax: (973) 742-2454Posted by admin Posted on 16 Jul