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Self Defense Law and defense against Assault charges

Posted by attorney Kenneth Vercammen

The Law Office of Kenneth Vercammen

& Associates, P.C.

2053 Woodbridge Ave.

Edison, NJ 08817

(732) 572-0500

The United States Constitution and New Jersey State laws permit us to protect ourselves. As homeowners, there are legal measures that can be used to keep out intruders. The Second Amendment to the US Constitution provides that we have the right to bear arms. Obviously, civilized society has certain restrictions on gun and weapon use.

The basic question many people have is, if I defend myself and the attacker claims they are hurt, can I be liable? There are two vastly different grounds for liability: criminal liability and civil liability.

Self-Defense and Avoiding Criminal Responsibility

A person may use force against another person if he reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person. Such justifiable use of force is commonly call "self-defense." The provisions for self-defense to protect citizens from criminal charges are found in the criminal code at NJSA 2C-3-4(a), which states in part:

"... 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 unlawful force by such other person on the present occasion."

In other words, self-defense is the right of a person to defend against any unlawful force. Self defense is also the right of a person to defend against seriously threatened unlawful force that is actually pending or reasonably anticipated. When a person is in imminent danger of bodily harm, the person has the right to use force, or even deadly force, when that force is necessary to prevent the use of unlawful force against him. The force used by the defender must not be significantly greater than and must be proportionate to the unlawful force threatened or used against the defender.

Unlawful force is defined as force used against a person without the person's consent in such a way that the action would be a civil wrong or a criminal offense.

If the force used by the defender was not immediately necessary for the defender's protection or if the force used by the defender was disproportionate in its intensity, then the use of such force by the defendant was not justified and the self-defense claim in a criminal prosecution falls.

Deadly Force and Criminal Prosecution

The use of deadly force may be justified only to defend against force or the threat of force of nearly equally severity and is not justifiable unless the defendant reasonably believes that such force is necessary to protect (himself/herself) against death or serious bodily harm. By serious bodily harm, we mean an injury that creates substantial risk of death or which causes serious permanent disfigurement or which causes a protracted loss or impairment of the function of any bodily member or organ.

One cannot respond with deadly force to a threat of or even an actual minor attack. For example, a slap or an imminent threat of being pushed in a crowd would not ordinarily justify the use of deadly force to defend against such unlawful conduct.

In addition, one can under limited instances use force in the protection of others (NJSA 2C:35-5). Limited force under certain instances is also afforded in the criminal code for the defense of personal property (NJSA 2C:3-6C).

Defense of Real Property (Your Home) and Criminal Liability

A section of the New Jersey criminal law provides that:

"The use of force upon or toward the person of another is justifiable when the actor is in possession or control of premises or is licensed or privileged to be thereon and he reasonably believes such force necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass by such other person in or upon such premises."

A person commits a criminal trespass if, knowing that (he/she) is not licensed or privileged to do so, (he/she) enters or surreptitiously remains in any structure or separately secured or occupied portion thereof.

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