G. Use of Force Against Intruders
The use of force or deadly force against an intruder,
who is unlawfully in a dwelling, is only justifiable where a
homeowner or his guest reasonably believes it is
immediately necessary to protect himself or others against
the use of unlawful or deadly force by the intruder.
N.J.S.A. 2C:3-4c(1).
A reasonable belief in this particular circumstance is
statutorily defined as existing where: the person was
lawfully in the dwelling; the encounter with the intruder
was sudden and unexpected, requiring immediate action;
and (1) the person reasonably believed that the intruder
would inflict injury upon himself or others, or (2)
demanded that the intruder disarm, surrender, or
withdraw and the intruder refused to do so. N.J.S.A. 2C:3-
4c(2). Also, the person is not required to retreat or
withdraw. N.J.S.A. 2C:3-4c(3).
“Dwelling” is statutorily defined as any building or
structure which is the actor’s home or place of lodging
(unless applied to the separate provision for defense of
premises under N.J.S.A. 2C:3-7, in which case it does not
to be the home or place of lodging). N.J.S.A. 2C:3-11.
This includes not only the house itself, but also the
doorway, threshold, and a porch or similar appurtenance.
State v. Bilek, 308 N.J. Super. 1 (App. Div. 1998); State v.
Martinez, 229 N.J. Super. 604 (App. Div. 1989).
H. Statutory Exceptions to Justification of Self-Defense
(Resisting Arrest and Resisting Occupier or Possessor of
Property)
The use of force is not justifiable to resist arrest, even
where such arrest is unlawful. N.J.S.A. 2C:3-4b(1)(a); see
State v. Mulvihill, 57 N.J. 151 (1970); State v. Doss, 310
N.J. Super. 450 (App. Div.), certif. denied, 155 N.J. 589
(1998); State v. Battle, 256 N.J. Super. 268 (App. Div.
1992), certif. denied, 130 N.J. 393 (1992); State v.
Casimono, 250 N.J. Super. 173 (App. Div. 1991), certif.
denied, 127 N.J. 558 (1992). However, a person may resist
excessive force used by the arresting officer. Mulvihill,
supra; Doss, supra.
Also, the use of force is not justifiable to resist force
used by the occupier or possessor of property acting under
a claim of right to protect that property. N.J.S.A. 2C:3-
4b(1). Exceptions to this rule are when a public officer or
his assistant are making a lawful arrest, where defendant is
reentering property of which he has been dispossessed, or
where necessary to protect against death or serious bodily
harm. N.J.S.A. 2C:3-4b(1)(b).
I. Statutory Exceptions to Use of Deadly Force
(Provocation and Retreat)The use of deadly force is not justifiable if defendant,
with the purpose of causing death or serious bodily harm,
provoked the use of force against himself in the same
encounter. N.J.S.A. 2C:3-4b(2)(a); State v. Moore, 158
N.J. 292 (1999); State v. Bryant, 288 N.J. Super. 27 (App.
Div.), certif. denied, 144 N.J. 589 (1996); State v. Rivers,
252 N.J. Super. 142 (App. Div. 1991); State v. Provoid, 110
N.J. Super. 547 (App. Div. 1970).Also, the use of deadly force is not justifiable if
defendant knows he can avoid using deadly force with
complete safety by retreating, surrendering possession of a
thing to a person asserting a claim right thereto, or by
complying with a demand that he abstain from any action
which he has no duty to take. N.J.S.A. 2C:3-4b(2)(b);
Moore, supra; Bryant, supra. This duty to retreat only
applies to use of deadly force; moderate force may always be
used without retreating. N.J.S.A. 2C:3-4b(3); State v.
Abbott, 36 N.J. 63 (1961). As a result, defendant does not
have a duty to retreat where he only brandishes or points a
firearm because this does not constitute use of deadly force.
Moore, supra; State v. Harmon, 203 N.J. Super. 216 (App.
Div. 1985), rev’d on other grounds, 104 N.J. 189 (1986); see
N.J.S.A. 2C:3-11b. If defendant ultimately discharges the
firearm, the situation changes because deadly force has
been used and the duty to retreat becomes retroactively
operative. Moore, supra. Also, there is no duty to retreat
unless one “knows” that he can do so safely. State v.
Gartland, 149 N.J. 456 (1997); Abbott, supra.There are exceptions to this duty to retreat. First,
defendant is not required to retreat from his dwelling,
unless he was the initial aggressor. N.J.S.A. 2C:3-
4b(2)(b)(i). A person may stand at the threshold of his
home and prevent an assailant from entering by any means.
State v. Martinez, 229 N.J. Super. 593 (App. Div. 1989).
Importantly, this portion of the statute was legislatively
amended in 1999 to remove the exception requiring retreat
from a cohabitant assailant.Second, a police officer or his assistant is not required
to retreat when using deadly force in the performance of his
duties, making an arrest, or preventing an escape. N.J.S.A.
2C:3-4b(2)(b)(ii); see N.J.S.A. 2C:3-7 (governing justifi-
able use of force in law enforcement).J. Imperfect Self-DefenseThe common law doctrine of imperfect self-defense
arises when a defendant used deadly force under an honest