A4777

An Act concerning the protection of persons and property and amending N.J.S.2C:3-4 and N.J.S.2C:3-6.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. N.J.S.2C:3-4 is amended to read as follows:

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] N.J.S.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] N.J.S.2C:3-9; 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] the actor 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] the actor or a third person, was in [his] the actor’s own dwelling at the time of the offense or was privileged to be [thereon] there 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.] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)

(3) An actor employing protective force in accordance with this subsection [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] shall have no duty to retreat prior to using force.

(cf: P.L.1999, c.73, c.1)

2. N.J.S.2C:3-6 is amended to read as follows:

2C:3-6. Use of Force in Defense of Premises or Personal Property. a. Use of force in defense of premises. Subject to the provisions of this section and [of section 2C:3-9] N.J.S.2C:3-9, the use of force upon or toward the person of another is justifiable when:

(1) the actor is in the actor’s dwelling and uses force against a person who unlawfully enters or attempts to enter the actor’s dwelling; or

(2) the actor is in possession or control of premises or is licensed or privileged to be thereon and [he] reasonably believes [such] the use of force is necessary to prevent or terminate what [he] the actor reasonably believes to be the commission or attempted commission of a criminal trespass by [such other] another person in or upon such premises.

b. Limitations on justifiable use of force in defense of premises.

(1) Request to desist. The use of force is justifiable under paragraph (2) of subsection a. of this section only if the actor first requests the person against whom [such] force is used to desist from his interference with the property, unless the actor reasonably believes that:

(a) [Such] The request would be useless;

(b) It would be dangerous to himself or another person to make the request; or

(c) Substantial harm will be done to the physical condition of the property which is sought to be protected before the request can effectively be made.

(2) Exclusion of trespasser. The use of force is not justifiable under paragraph (2) of subsection a. of this section if the actor knows that the exclusion of the trespasser will expose him to substantial danger of serious bodily harm.

(3) Use of deadly force. The use of deadly force is not justifiable under paragraph (2) of subsection a. of this section unless the actor reasonably believes that:

(a) [The person against whom the force is used is attempting to dispossess him of his dwelling otherwise than under a claim of right to its possession; or] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill)

(b) The person against whom the force is used is attempting to commit or consummate arson, burglary, robbery, or other criminal theft or property destruction; except that

(c) Deadly force does not become justifiable under [subparagraphs (a) and] subparagraph (b) of this subsection unless the actor reasonably believes that:

(i) The person against whom it is employed has employed or threatened deadly force against or in the presence of the actor; or

(ii) The use of force other than deadly force to terminate or prevent the commission or the consummation of the crime would expose the actor or another in his presence to substantial danger of bodily harm.

(4) Use of deadly force in a dwelling. The use of deadly force is not justifiable under paragraph (1) of subsection a. of this section unless:

(a) The person against whom the force is used is unlawfully in the dwelling;

(b) The actor was in [his] the actor’s own dwelling at the time of the offense or was privileged to be there; and

(c) the actor reasonably believes that the force is necessary for the purpose of protecting the actor or other persons in the dwelling against the use of unlawful force by the intruder.

An actor who uses deadly force in accordance with this paragraph shall not be required to retreat prior to using deadly force.

An actor within a dwelling shall be presumed to have a reasonable belief in the existence of the danger. The State must rebut this presumption by proof beyond a reasonable doubt.

c. Use of force in defense of personal property. Subject to the provisions of subsection d. of this section and of [section 2C:3-9] N.J.S.2C:3-9, the use of force upon or toward the person of another is justifiable when the actor reasonably believes it necessary to prevent what he reasonably believes to be an attempt by such other person to commit theft, criminal mischief or other criminal interference with personal property in his possession or in the possession of another for whose protection he acts.

d. Limitations on justifiable use of force in defense of personal property.

(1) Request to desist and exclusion of trespasser. The limitations of paragraphs (1) and (2) of subsection b. [(1) and (2)] of this section apply to subsection c. of this section.

(2) Use of deadly force. The use of deadly force in defense of personal property is not justified unless justified under another provision of this chapter.

3. This act shall take effect immediately.

STATEMENT

This bill authorizes a person to use force, including deadly force,

against an intruder who is unlawfully in a dwelling, and provides that the person does not have a duty to retreat prior to using force under certain circumstances.

Under current law, a person is permitted to use force against another if that person reasonably believes his or her life is in danger, or that an individual intends to inflict serious bodily harm. However, current law imposes a “duty to retreat,” which requires a person to refrain from using force if the person to is able to retreat and escape harm.

Under current law, the use of force against an intruder in defense of the person’s premises or personal property is justifiable only if the person using force first requests the intruder to stop interfering with the property, unless the person reasonably believes that: (1) the request would be useless; (2) it would be dangerous to himself or herself or another person to make the request; or (3) substantial harm will be done to the physical condition of the property which is sought to be protected before the request can effectively be made. A person may not, however, use force to defend his or her premises or personal property if the person knows that the exclusion of the intruder will expose himself or herself to substantial danger of serious bodily harm. The burden is on the State to prove beyond a reasonable doubt that the use of force by a person was not justified.

Under the bill, the use of force or deadly force against an intruder who is unlawfully in a dwelling is justifiable when the person reasonably believes that the force is immediately necessary for the purpose of protecting himself or another person in the dwelling against the use of unlawful force by the intruder. A reasonable belief exists if the person using force is in his own dwelling at the time the force was used, or was privileged to be there, and reasonably believes that the intruder would inflict personal injury on the person using force or others in the dwelling. A person who uses protective force in accordance with the provisions of the bill does not have a duty to retreat prior to using force.