Home is your castle? When you can use a gun in NJ to defend yourself
🔺 When can you use deadly force in New Jersey?
🔺 New Jersey is among the most restrictive states when it comes to defending yourself with a gun
🔺 Can you use force to defend your property?
You have questions, I get you the answers.
This column looks at the use of force, including deadly force, and when and where it is permitted, as well as the potential consequences.
This is not meant in any way to cover all possible scenarios, nor is it intended as legal advice.
In order to answer specific questions about the use of force in the defense of your home, your family and personal property, I sat down with two prominent legal experts in New Jersey.
Samuel “Skip” Reale spent nearly 30 years as a prosecutor, including with the New Jersey Attorney General’s Organized Crime and Racketeering Bureau. Since 2003, Skip as been in private practice, specializing in criminal defense.
Tim Alexander is a veteran prosecutor and prominent Civil Rights attorney. Alexander is a former detective captain in charge of the Atlantic County Prosecutor’s Criminal Investigation Section. He is also the former major trial prosecutor for the Philadelphia District Attorney's Office.
Use of force is taken seriously in New Jersey
Under New Jersey law (2C:3-4): "The use of force upon or toward another person is justifiable (only) 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."
Deadly force is an even more serious matter
Juries deliberating whether or not a person was justified in using deadly force against another person are given very specific instructions by a judge.
For example, the jury charge instructions listed at njcourts.gov read:
“The use of deadly force may be justified only to defend against force or the threat of force of nearly equal severity and is not justifiable unless the defendant reasonably believes that such force is necessary to protect himself/herself against death or serious bodily harm."
How is deadly force defined in NJ?
First, to be considered deadly force, the result does not have to equal death.
According to guidance from the New Jersey Supreme Court: Deadly force is defined as force that the defendant uses with the purpose of causing or which he/she knows to create a substantial risk of causing death or serious bodily harm. By serious bodily harm, we mean an injury that creates a substantial risk of death or which causes serious permanent disfigurement or which causes a protracted loss or impairment of the function of any bodily member or organ.
New Jersey does things differently
Veteran prosecutor Skip Reale cautions: “New Jersey has a very, very different view on a citizen's right to use force to defend either oneself, defend another, or defend property. We have a very restrictive view on that.”
If you use force, you will be investigated, and probably charged
Even if you are rightly defending yourself or a family member or any other person, Reale says the climate in New Jersey will impact the decisions of investigators and law enforcement with regard to how they proceed, “and while in maybe 48 states, you wouldn't get indicted, in New Jersey, you run the serious risk of being charged. Even if common sense says it's a righteous shoot, it's likely you're going to have to go through a court of law.”
Why is that?
It’s simple, Reale says, “In New Jersey, we have a presumption of innocence, but we don't have a presumption that you made the right choice.”
“And what we're asking people to do is, is make a split-second decision. It's not even a split second, it is milliseconds. You're processing all that information that you're seeing and what you're hearing, and trying to decide what is it I'm confronting, and what force can I use?”
“And New Jersey is always going to second-guess you in the process.”
That said, there are times when avoiding the use of force is not possible, or prudent.
Below are answers to some of the most commonly asked questions about the use of force in the protection of persons and property in New Jersey.
These answers were taken directly from my lengthy conversation with Reale and civil rights attorney Tim Alexander as well as from various guidance from New Jersey courts and other law enforcement sources.
Again, this is meant as a guide and does not cover all possible scenarios.
What does the law say about the use of deadly force in the protection of your home?
The presumption is if a person is breaking into your home, they're going to do harm to you if you're in the home.
Tim Alexander put it this way, "So deadly force is authorized to protect. That's the only time that you can use deadly force from within your home. You're legally allowed to be in possession of that weapon, and someone's coming into your home and they're not invited in your home: This is the only time that you don't have a duty retreat. You can use deadly force to stop that."
Can you use deadly force to prevent someone from entering your home?
Both Alexander and Reale say this is a bit of a gray area.
Alexander stresses, "If they are standing outside your window, and they have a crowbar and they appear ready to come in, you shoot through the window. Even if you think that they're coming into your home, even if everything in your being is telling you that this person's coming into your home but they're not making any overt steps to come into your home, then no, you can't use deadly force."
OK, now they’ve broken a window.
Both of our prosecutors agree that’s quite a bit different.
"Let’s say they’ve broken the window," Alexander says, "And maybe they're reaching through to try to unlatch the window or the door. You could use deadly force to defend yourself at that point because the presumption now is that person's coming into your home."
Reale agrees, "Once they have begun to enter your house or are already present in your house, the presumption under the law is they intend to do you harm and therefore you are permitted to use force."
What if I see a scary stranger in my yard?
This is one of those scenarios, Alexander warns, where you really can get in trouble. For example, Alexander proposed this scenario: "Maybe I’m new to the neighborhood, and I somehow ended up in your backyard. You've never seen me before. You don't know me. But for whatever reason, I'm in your backyard because of something innocuous or innocent. But you think that I must be a bad guy. You're scared. You’re not taking any chances. And I see you at the window and I turn to wave and bam, you shoot and kill me."
Alexander also suggested there may be racial stereotypes at play, "Who knows. Maybe you still feel frightened, maybe you still conclude in your head that this guy's going come and hurt me because you have some beliefs that you are holding about people who look like that person."
Do you have an obligation to warn an intruder before you shoot them?
I asked Alexander about this scenario: You hear somebody downstairs, and you retrieve your weapon.
Do you have the obligation to yell down the stairs and say, get out of my house or I'm going to shoot you?
"No," Alexander says, "You do not have an obligation to warn. I'm not aware of a single scenario that you have a duty to warn but you do have a duty to identify."
What is the ‘duty to identify?’
Alexander and Reale explained it this way: If you heard glass breaking and you hear footsteps and no one else is supposed be in your house. The footsteps are now coming towards you. It's dark. You shoot.
Now it turns out to be your son or your daughter or somebody known to you. You are almost certainly going to be prosecuted because you didn't identify the target.
"Now," Alexander says, "You may be able to raise a solid defense that you believed your safety was in jeopardy but you are probably going to be charged."
If I feel threatened, or I see someone in my yard or trying to steal my car out of the driveway, can I fire a warning shot to scare them off?
All of our experts say the law is very clear on this point.
No, no one is permitted to fire any warning shots in the state of New Jersey, including law enforcement. No warning shots.
Does New Jersey have the 'Stand your Ground' law?
There is no such stand-your-ground law in New Jersey.
In fact, Reale and Alexander say in New Jersey it is just the opposite. You have a duty to retreat unless someone is actually inside your home.
What about defending my property?
All of our experts agree on this point as well: You can't use deadly force to defend property in New Jersey.
Even in the home, it’s not defense of property. It's defense of oneself or others inside the home. If someone is stealing something from you, there is no presumption they intend to do you bodily harm.
Is that always the case?
In New Jersey, you have a duty not to use deadly force in all but the most extreme cases.
"If I'm in danger, if I perceive that I or others are in danger of imminent bodily, or serious bodily injury, you can use deadly force," Alexander explained, "However, for most run-of-the-mill occasions — the guy trying to boost the car, a stranger in the yard, anything suspicious — that is not going to include deadly force in most circumstances."
What about my dog?
Reale says if somebody is kidnapping your dog, you cannot use deadly force to prevent it. "Even though that dog may be your family. You can't do that," Reale says.
We’ve covered deadly force in your home, but what if you are on the street with a concealed carry permit?
Every scenario is going to be different. Our experts say to keep in mind, even with recent changes to the law, New Jersey is still a very restrictive state.
In a personal sense, deadly force would only be permitted if you felt that you or someone you were with were in imminent danger of severe injury or death.
New Jersey does not have a "stand your ground" statute. In fact, you have an obligation to retreat if you can safely do so.
Can I use deadly force to stop a robbery?
I posed this scenario to Reale and Alexander:
Let’s say a guy comes into a restaurant brandishing what looks like a firearm. Maybe it's fake, but it looks like a gun. He holds a gun to a waiter's head and says, “Everybody gimme your wallet right now.”
Alexander believed that was a pretty clear case, "If you’ve got a clean shot, you could take it. I don't think there's any question about it."
What if he only claims to have a weapon, but you don’t actually see it?
Alexander and Reale said this is more of a gray area but, both believed it would be grounds for deadly force because the guy is representing that he had a weapon. There is going to be an investigation.
Reale says in this case, "There will be a lot of discussions. Every prosecutor may look at it differently. You may not be charged, but you may also be prosecuted."
How about in the case of a sexual assault?
Another scenario we put before our veteran prosecutors: You have a permit to legally carry. You hear a woman scream “rape!” She comes running down the street and a guy is chasing behind her.
Alexander says sexual assault is a crime where deadly force could be justified in New Jersey. So are cases of domestic violence.
Again, the disclaimer: every situation is different. There will be an investigation. You could face charges in almost any situation.
Is there more to know?
During a recent New Jersey 101.5 Town Hall broadcast on crime in New Jersey, the issue of using deadly force to defend one’s home and property was also discussed.
Law enforcement seems to agree on one issue.
The program brought together law enforcement officials from around New Jersey, and all agreed deadly force was justifiable in defense of you or your family if someone were to break into your home.
Monmouth County Sherriff Shawn Golden recognized the sensitive nature of the issue.
“It may be somewhat of a political view but my view is you have a right to protect your home," Golden said. "And if you have a legal firearm and you are feeling threatened within your residential domicile, then you need to take the action that you believe you need to take.”
Summit Police Detective Mike Freeman agreed.
“If they are coming into your home, or in your home, it’s reasonable to assume that they're causing a threat to your person or your family. So, you would, in my opinion, be justified in using deadly force.”
Another word of caution
Stafford Township Police Chief Thomas Dellane cautioned that these instances are not always black and white.
“Even if the law allows for it, you're going to be subject to an investigation. You're subject to potential criminal charges. You're subject to potential civil charges (a lawsuit). If I can make one strong point this evening, call 911 as soon as possible and let the professionals deal with it the way we're trained to do.”