What is Self Defense in New York?
Several people have been surprised at how vague self defense laws are in New York. Many are under the impression that a person may use or threaten to use force if and when they feel threatened. However, this is not entirely true. Reviewing the law and understanding certain procedures involved can be beneficial to you should you find yourself in a particularly serious incident.
Essentially, except for a few clear-cut exceptions, the law favors those who do not resist any threat with force. The law also will not necessarily favor an individual who appears to be the aggressor, even if that person actually is acting in self defense. The aggressive person may be held accountable for injuries that result from a physical altercation and may even face civil liability for damages.
In some circumstances, the use of force is justified. A person may resist and even use deadly physical force against a person who is attempting to commit or committing an enumerated number of offenses. These offenses include kidnapping , forcible rape, forcible sodomy, aggravated sodomy, or kidnapping. When these offenses are threatened or being committed, a person may use physical force as a means of preventing the commission of the crimes.
These guidelines are virtually the same in most states, so if you are living or visiting New York you should be familiar with these key points. In some, but not all cases, a person may be permitted to use physical force, but the amount of physical force used cannot exceed the amount of physical force necessary to repel the threat being made against them. A person can use deadly physical force only when they reasonably believe that the another person is using or about to use deadly physical force. Deadly physical force refers to force that is capable of causing death or serious physical injury.
The Definition of Self Defense Under NY Law
While self-defense laws can vary on a state-to-state basis, New York stands out as having one of the broadest legal definitions of this concept. For the sake of this article, we’ll be referring to Article 35 of the New York Penal Law, which lays the groundwork for various forms of self-defense in the Empire State.
According to New York law, a person may not use physical force unless the person in question is being threatened with physical force. Contrary to popular belief, these laws do not require or expect that you physically apprehend a criminal in order to claim self-defense. Rather, if a threat is made against you, and there is a reasonable belief that you will be seriously harmed or physical force will be used against you, you can legally use the same amount of force to neutralize the attack against you.
This leads to a logical question: How does the law differentiate between self-defense and other forms of violence? In New York, there are three ways to differentiate between acceptable self-defense and other forms of violent conduct:
If you are the person who is the initial aggressor, you cannot claim self-defense unless:
If you were engaged in mutual combat or provoked the other person, self-defense will be disallowed under most circumstances. However, if they engage in affirmative defense, you are free to use self-defense as a retaliation.
As specified under New York criminal law, a reasonable person would use the same in response to a threat. Similar to the standard of the reasonable person in tort law, a reasonable person in self-defense is able to judge a reasonable amount of force needed under a given continuous circumstance to protect their own well-being or the well-being of others.
The illegal physical force used against you cannot be based on a verbal, emotional or threatening gesture; rather, it must involve the risk of physical harm. A reasonable belief of personal danger is judged by what a reasonable person would have thought after being in your situation.
When you are responding to a threat, you must use the same level of force. For instance, if someone is attacking you with a kitchen knife, the law allows you to reasonably retaliate with any similarly dangerous object found in your vicinity. This may include a frying pan, a heavy book or anything of sufficient weight and damaging potential.
In the previous example of a kitchen knife, if you physically removed the knife or knocked it out of the assailant’s hand, it would not be considered an aggressive attempt to harm the attacker. Restraining the attacker and disposing of the knife is reasonable, as is blocking the knife if you’re able to do so without putting yourself at even further risk.
Stand Your Ground & Duty to Retreat Law in New York
In New York, there is no stand your ground law that gives people an unrestricted right to defend themselves outside of the home, as allowed in some other states. Instead, New York has the principle of the duty to retreat, which requires people to attempt to avoid or escape the confrontation before using deadly physical force to protect themselves.
Of course, even the retreat rule has exceptions. A person using physical force is not required to retreat if the person is attacked in his or her dwelling by someone who has no right to be there, or is attacked by someone who is committing a violent felony. The duty to retreat extends to all persons except police officers and residents or employees of law enforcement agencies involved in their duty to effect an arrest.
Note that even to claim the immunity of justification (self-defense), a person must prove that the person is being attacked. The attack need not occur for the victim to be justified in defending him or herself, but there must be an objective basis for fearing that the attack may occur.
The Use of Reasonable Force & The Limits
Reasonable force refers to the level of violence or physical contact you are allowed to use in order to prevent another person from physically harming you, your loved ones or even your property. While many self-defense cases are unsuccessful given that the aggressor has committed violence against someone, New York law does allow you to use physical force if: In any case where you are permitted to use defensive force, you must only use the amount of force necessary to stop the attack. This means that you cannot respond with violence if you are facing a non-violent attack or a threat that you can stop without violent force. The example often given here is that if you were slapped once, you cannot respond by tackling the attacker and punching them in the face repeatedly. Show that you believe you are protecting yourself or your property, but make sure you are not overreacting. In some cases, the defendant will be able to prove at trial that he or she was acting in defense of another person, which is defined similarly to self defense at N.Y. Penal Code § 35.15. However, the victim of the original attack must have been justified in using force to defend himself or herself, and the other person cannot be at fault in instigating the assault.
Self Defense and Domestic Violence
In the context of domestic violence, self-defense is often raised on behalf of defendants as a defense to charges that might otherwise be consistent with family offenses as defined in Article 8 of the Family Court Act. As such, self defense may be raised with respect to an allegation that the defendant has inflicted physical injury, reckless assault, or harassment as the result of reasonable physical force to prevent or defend against the imminent use of unlawful physical force. See Family Court Act 812; Penal Law 35.15.
As in criminal proceedings, self defense is not an admissible defense in Family Court to assist a party in alleging that a family offense has occurred. As such, case law surrounding the issue of self defense in Family Court proceedings is sparse; however, in cases involving circumstances similar to an affirmative defense of self defense, the court has stated that "the defense of justification is not available in such an action." Scognamillo v. Scognamillo, 172 A.D.2d 481, 569 N.Y.S.2d 232 (N.Y.A.D. 2 Dept., 1991). See also, Bernson v. Karagianes, 31 Misc.3d 1213(A), 916 N.Y.S.2d 1007, 2011 WL 1631333, 2011 N.Y. Slip Op. 31036(U) (Nassau Co., 2011) (denying defendant’s defense based on allegedly unreasonable use of physical force in self-defense); Matter of Mathew F. v Jasmine A., 619 N.Y.S.2d 678, 181 A.D.2d 863 (N.Y.A.D. 2 Dept., 1995) (denying respondent father’s defense of justification where there was no evidence of imminent harm to baby – the subject of child neglect proceedings in Family Court).
While the Family Court may not provide an avenue for defendants seeking to provide justification for their actions, criminal courts and state courts do, in the proper context. See Penal Law 35.10. In criminal courts, the defendant must establish by a preponderance of the evidence that the use of deadly force was necessary to stop the threat and that the force was reasonable and proportionate.
For example, the New York State Penal Code defines "reasonable belief" as "a person’s belief that his or her conduct is justified if he or she correctly or honestly defines the circumstances as requiring it." See New York Penal Code 35.20 more specifically referring to self-defense, 35.15. This is similar to the New Jersey statutory definition, which refers to "an honest belief." See NJSA 2C:3-4.
In both contexts, a defendant is required to prove justification by the standard of "preponderance of the evidence," which means that a party’s burden to prevail on an issue "is greater than the opposing party’s burden." See Matter of Joseph S., 95 N.Y.2d 756, 707 N.E.2d 414, 713 N.Y.S.2d 697, 2000 WL 255439 (N.Y. 2000).
Legal Ramifications for Use of Force on Another
Under the New York State law, while people have the right to use reasonable force in order to defend themselves against an imminent attack, using "disproportionate" or "excessive" force can lead to legal action against you. In other words, if you respond to a minor altercation by shooting someone or killing them, the court will likely not look kindly on your version of events. Conversely, if your attacker is approaching with a baseball bat and you know that you don’t know where he has been or what he has done, and you use deadly force because you believe your life is in jeopardy, there’s a good chance the court will see that as self-defense.
But what happens if you use an excessive amount of force to defend yourself?
The legal ramifications of using too much force can potentially be severe. In certain circumstances , it’s hard to determine just what "excessive force" constitutes—was the force you used unreasonable or just a little bit more than what you needed to stop the attacker?
The main issue to keep in mind when trying to determine that is whether, when you responded, did you reasonably feel that your life was in imminent danger? In other words, was your attacker, in the instant before you used "excessive" force, actually trying to hurt you? If the answer is no or you misjudged the situation, then the court could potentially find you guilty of a charge pertaining to the use of unnecessary force—such as menacing, assault, aggravated assault, reckless endangerment, attempted murder or murder.
How to Use Self Defense as a Defense in Court
In order to legally "claim" self defense in court, the defendant must demonstrate that they were acting within the intent and confines of self defense. Assuming the initial burden has been satisfied, the burden then shifts to the prosecution to show beyond a reasonable doubt that the defendant does not satisfy all of the elements of self defense.
The defendant must prove that:
In New York, the defendant must convince the judge and jury that their actions were justified by what they understood as a "reasonable belief" that a physical threat was imminent. It is understood that the law does allow for the use of deadly force when there is reasonable belief that it is necessary to protect against serious bodily injury or death. So long as a person (or persons) in their own home is threatened by unlawful entry, deadly physical force may be used to protect themselves or their family. Another clear example is if the defendant knows the assailant. If it is a family member or someone that is known to the victim, the law may assume that the person has previously been threatened by the assailant, and that the defendant would need to use force to protect themselves from an imminent threat. The best course of action is to treat the situation as if the assailant was unknown to you. That way, it may hold some weight as a defense if you are on trial, and saves you from a half-hearted self defense claim.
Recent Developments & Legal Trends for Self-Defense
In New York, there has been a gradual expansion of the legislative intent and judicial interpretation of the duty to retreat and the use of physical force in defense of oneself. For example, the extent to which a person must challenge an assailant before using deadly physical force against that person. As illustrated by the recent case of People v. McKenzie, where the court of appeals overturned a manslaughter conviction that was based on the theory that the defendant should have made two unsuccessful attempts to de-escalate the attack and leave the situation before responding with deadly force: the mere possibility of a jury considering this evidence would mean that the trial court erred in not giving an instruction that the jury could consider whether McKenzie had met his burden to demonstrate the affirmative defense of justification. This overturning of a conviction demonstrates how judicial interpretation may be more in line with the intention of NY’s Justification Laws, while preserving the sanctity of human life.
Another recent issue with the self-defense laws have been the Castle doctrine laws. In 2017, New York expanded the Castle doctrine, which allows a person to use deadly physical force upon another in an occupied building or home without first attempting to get away or providing a warning. Without the protection of the Castle laws, a person has an obligation to first attempt to leave the premises or provide the person intending harm a reasonable opportunity to refrain from the harmful act. The rationale behind expanding the Castle laws is that the duty to retreat before using deadly physical force within one’s home or place of business can compromise the occupant’s safety.
Additionally, although it does not have a direct impact on the law itself, a growing trend has seen states, including New York, increasingly affording greater legal protection to homeowners and business-owners when it comes to using deadly force to secure their premises. In 1995, the "Make My Day" law was enacted in Colorado, allowing for the use of deadly force against an unlawful intruder in a home when a person reasonably believes it necessary to do so for his or her own protection. Since then, many states have followed suit. In light of wide public approval and appreciation for these laws, several states have enacted laws that are at least somewhat similar to the "Make My Day" law.
New York’s Castle laws fall short of being a true "Make My Day" law. The state recently rejected an expansive bill that called for the enabling of individuals to use deadly physical force against a person in almost any place that they have the right to be if the individual believes that the other person is attempting to cause serious physical injury, leaving lawmakers on both sides of the aisle concerned that they went too far in the proposal.
Conclusion and Advice on Navigating NY Self Defense Laws
In summary, those with legal gun ownership privileges in New York are justified in using deadly physical force – in self-defense situations – when they perceive themselves to be defending against a person, such as an intruder, who is about to use deadly physical force. However, legal gun owners must avoid getting into a situation where their perceived use of deadly physical force could be challenged by authorities as being reckless.
New York law is clear about who can, or cannot, be arrested for murder. Unless you were acting out of self-defense in threatening manner or were drunk, use of any weapon – such as a gun – is not justifiable when it comes to meeting state murder penalties.
When it comes to self-defense , people in New York must be aware of the common law principle of retreat. There is a legal requirement for people to leave the area whenever it is safe to do so, instead of meeting force with equal or greater force. If, however, it is not reasonable for you to retreat and there is a risk of grave bodily harm, it is your right to use lethal force against your assailant.
As a final note, because self-defense laws may be violated under varying circumstances, it is always best for you to consult an experienced criminal law attorney after being charged with a violent crime. An attorney will review every detail of your case and discuss the pros and cons of your situation, allowing you to make the best informed decisions regarding your case.