Justification, commonly referred to as “self-defense,” may apply in instances such as defense of property and self-defense.
Justification recognizes that the use of force may be allowed under certain circumstances. An individual may use physical force, as well as deadly physical force, in certain circumstances to defend property which is any premises a person is legally occupying. Physical force, but not deadly physical force, may be used to stop or end a crime involving damage to premises; trespass; larceny; and mischief. Deadly physical force maybe used to stop an act directed at a premises only when the offense is arson or burglary.
With regard to self-defense, a person must “reasonably believe” that an individual is about to use physical force on himself or another person in order to justify the use of physical force in self-defense. A person must believe that another is about to use deadly physical force on them or a third person in order to justify the use of deadly physical force in self-defense. However, in certain circumstances, deadly force may not be used upon another person, if an individual knows that he or she can avoid the necessity of doing so by safely retreating. The duty to retreat does not arise until the point at which a person reasonably believes that deadly force against him or her is imminent. An individual who is not the initial aggressor and is in his own residence has no duty to retreat. An individual may also use deadly physical force when he or she reasonably believes that another is about to commit a kidnapping, robbery, forcible rape or forcible sodomy.
In determining the reasonableness of a persons belief, a variety of factors are relevant. These can include: the movements of the potential assailant and the physical attributes of all persons involved. Additionally, any prior experiences that could have provided a reasonable belief that another was intending to injure are relevant. For example, a person’s past tendency towards violence or knowledge of a past specific violent act may be considered.
Self-defense may not be used when an individual was the initial aggressor. However, an initial aggressor who then retreats from the conflict and communicates that retreat to the other person may use self-defense. The threat to use physical force determines who was the initial aggressor. Finally, insulting language or a threatening gesture alone may not suffice to allow the use of self-defense.
There are several variables involved in a self-defense case. It’s important if you are charged with a crime to seek out advice of an experienced criminal defense attorney. If you should have any questions about a particular matter and your charges are in Onondaga, Oneida, Madison, or Jefferson County, don’t hesitate to call us at 315-701-2939 or CONTACT US ONLINE for a free initial consultation.
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