Is Self-Defense A Slam-Dunk Defense?

On movies and television shows all the hero has to do is say, “it was a clear-cut case of self-defense” to avoid legal consequences for punching out the villain. Or even killing him.

In real life, clear-cut isn’t always so clear. Self-defense, known in New York as “Justification,” is subject to a series of criteria, and some interpretations. Here are some of the questions which might come up to determine whether your assault or homicide was justified, and therefore not a crime.

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Were You The Subject Of Unlawful Force, Or Did You Have A Reasonable Fear You Were About To Be?

This is test #1. Seems simple, doesn’t it? And certainly being the subject of unlawful force is easy enough to show, though there are stipulations here (see below).

But what does “reasonable” mean?

There’s no clear-cut legal definition. Reasonable may mean one thing to one person and something different to another.

Therefore a cop may still arrest you even if you tell him or her you had reason to believe you were about to be the subject of unlawful force. A prosecutor may still decide to move forward with the case. And there’s no telling what a jury will think.

Were You In Fear For Your Life, Or A Third Party’s Life?

Under New York Penal Law 35.15 you may use physical force to defend someone else. Again, your belief that you were in fear for your life or someone else’s life must be a “reasonable” belief.

And again, there are some stipulations.

Were You The Initial Aggressor?

If you were the initial aggressor the justification defense may no longer apply. In fact, the prosecution could try to show you provoked the attack in the hopes of retaliating. This would invalidate your justification defense.

Combat “by agreement” counts as acting as an aggressor, and would again invalidate your defense.

Was The Use Of Force Proportionate?

In general, your justification defense is a lot stronger if the use of force was proportional. If you kill someone for slapping you this defense wouldn’t apply.

If you block someone’s blow, twist their arm behind their back, and push them into the wall with a martial arts move after being slapped, however, the use of force may be seen as proportional, especially if you did no lasting harm.

Could You Have Retreated?

If you know, “with complete personal safety, to oneself or others,” you may retreat to end the conflict you have a duty to do so in most cases.

Of course, this is another “it depends” sort of clause. If you engage in force a lot would depend the cop, prosecutor, or jury agreeing with your assessment there was no way to retreat without endangering yourself or anyone else. It’s not cut and dried: there was a case a few years ago where a man chased his initial assailant down the street with a gun and shot him well after the conflict was over. He was not charged.

That man was also a 69-year old retired corrections officer. This probably played a role.

There are more reliable exceptions, noted below.

Did You Have Reason To Believe The Person You Assaulted Was Committing Robbery, Kidnapping, Forcible Rape, Or A Forcible Criminal Sexual Act?

If so, you have no duty to retreat.

Were You In Your Own Home?

You do not have a duty to retreat if the assailant is in your home so long as that person does not also live there. And here you have less to worry about on every other count, as almost anyone feels it’s reasonable to assume a stranger in your home is going to hurt someone in the home.

Think You’ve Met All The Criteria For A Justifiable Act Defense? You Should Still Call An Attorney.

A strong justification defense is a good thing, but only if you have a competent attorney to help you navigate the pitfalls.

If you’ve been involved in an altercation and the police aren’t on the scene yet it is a good idea to get one of our lawyers on the phone. If you’ve been arrested you definitely need the help, because obviously the police aren’t buying your justification defense (if you tried to present it at all).

Being arrested can be a huge inconvenience, but silence is always a smart strategy. The police won’t necessarily let you go anyway, so sometimes it’s wiser to save protests for your attorney.

Remember, real life is never like TV and it’s seldom fair. Don’t assume all will be well. If you’ve been forced to respond to a violent crime, call us. It’s better to be safe than sorry.

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About The Author

Jeffery Greco

Jeffery Greco is an attorney providing legal services covering Criminal Defense and Criminal Defense: White Collar and Criminal Defense: DUI / DWI. Jeffery Greco, who practices law in New York, New York, was selected to Super Lawyers for 2020 - 2023. This peer designation is awarded only to a select number of accomplished attorneys in each state. The Super Lawyers selection process takes into account peer recognition, professional achievement in legal practice, and other cogent factors. Prior to becoming an attorney, he studied at South Texas College of Law Houston. He graduated in 2004. After passing the bar exam, he was admitted to legal practice in 2005.

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