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New Jersey Criminal Defenses Of Necessity, Public Duty, and Self-Protection

Under New Jersey law, criminal defendants may be able to build defenses based on necessity, a public duty, and self-protection:

2C:3-2. Necessity and other justifications in general

a. Necessity. Conduct which would otherwise be an offense is justifiable by reason of necessity to the extent permitted by law and as to which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

b. Other justifications in general. Conduct which would otherwise be an offense is justifiable by reason of any defense of justification provided by law for which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

2C:3-3. Execution of public duty

a. Except as provided in subsection b. of this section, conduct is justifiable when it is required or authorized by:

  1. The law defining the duties or functions of a public officer or the assistance to be rendered to such officer in the performance of his duties;
  2. The law governing the execution of legal process;
  3. The judgment or order of a competent court or tribunal;
  4. The law governing the armed services or the lawful conduct of war; or
  5. Any other provision of law imposing a public duty.

b. The other sections of this chapter apply to:

  1. The use of force upon or toward the person of another for any of the purposes dealt with in such sections; and
  2. The use of deadly force for any purpose, unless the use of such force is otherwise expressly authorized by law.

c. The justification afforded by subsection a. of this section applies:

  1. When the actor reasonably believes his conduct to be required or authorized by the judgment or direction of a competent court or tribunal or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process; and
  2. When the actor reasonably believes his conduct to be required or authorized to assist a public officer in the performance of his duties, notwithstanding that the officer exceeded his legal authority.

2C:3-4 Use of force in self-protection.

2C:3-4. Use of Force in Self-Protection. a. Use of force justifiable for protection of the person. Subject to the provisions of this section and of section 2C:3-9, 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.

b.Limitations on justifying necessity for use of force.

1. The use of force is not justifiable under this section:

(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.

2. The use of deadly force is not justifiable under this section unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm; nor is it justifiable if:

(a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or

(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:

(i) The actor is not obliged to retreat from his dwelling, unless he was the initial aggressor; and

(ii) A public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.

3. Except as required by paragraphs (1) and (2) of this subsection, a person employing protective force may estimate the necessity of using force when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do or abstaining from any lawful action.

c. (1) Notwithstanding the provisions of N.J.S.2C:3-5, N.J.S.2C:3-9, or this section, the use of force or deadly force upon or toward an intruder who is unlawfully in a dwelling is justifiable when the actor reasonably believes that the force is immediately necessary for the purpose of protecting himself or other persons in the dwelling against the use of unlawful force by the intruder on the present occasion.

(2) A reasonable belief exists when the actor, to protect himself or a third person, was in his own dwelling at the time of the offense or was privileged to be thereon and the encounter between the actor and intruder was sudden and unexpected, compelling the actor to act instantly and:

(a) The actor reasonably believed that the intruder would inflict personal injury upon the actor or others in the dwelling; or

(b) The actor demanded that the intruder disarm, surrender or withdraw, and the intruder refused to do so.

(3) An actor employing protective force may estimate the necessity of using force when the force is used, without retreating, surrendering possession, withdrawing or doing any other act which he has no legal duty to do or abstaining from any lawful action.

Like other defenses, determining whether or not these defenses are applicable to your specific situation is a determination best left to an experienced criminal attorney. Furthermore, developing an effective defense requires knowledge of the applicable law, skill in building evidence to support the defense, and experience in handling criminal matters that have comparable facts and circumstances.

It’s important to keep in mind that the law is constantly changing. Therefore, statutes listed here may not be operable due to unmet conditions or may have expired. It’s also possible that they have been ruled inoperable by a court, or have otherwise become inoperable. Therefore, you should not rely solely on the information presented.

If you are facing criminal investigation or charges, in order to protect your rights, you should contact a criminal defense attorney as soon as is possible.

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