laying down the law


We have a database for laws
We have a database for laws (Photo credit: Newton Free Library)

Seeing how popular my NY Knife Law post is I’ve decided to start writing some short articles that will attempt to clarify some common, self-defense related, legal issues.

Let me make a few things clear first.

  • I am not an attorney. This is for informational purposes only and is NOT to be mistaken for legal or professional advise.
  • Any opinions I write here are my own and do not represent the views of any agency that employees me.
  • If you have any personal legal concerns, contact a qualified attorney. 
  • I’m from New York and am only familiar with NY Law. These writings are based on that experience. Other States have different laws but many similarities at the root.

Any discussion of self-defense related legal issues must focus on your particular states “Justification” section of law.

As a rule of thumb, you should look at ANY from of physical or deadly force as illegal per se. In a legal sense (vs a “human right” sense), what makes the use of force in self-defense something you shouldn’t go to jail for is your States “Justification” section of law. In NY that section of law is Article 35 of the NY Penal Law. It’s first subsection explains it’s purpose rather succinctly.

In any prosecution for an offense, justification, as defined in sections 35.05 through 35.30, is a defense.

Section 35.05 Justification; generally

Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when: 

1. Such conduct is required or authorized by law or by a judicial decree, or is performed by a public servant in the reasonable exercise of his official powers, duties or functions; or

2. Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. Whenever evidence relating to the defense of justification under this subdivision is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense.

In essence what this means is, “I broke the law but I was JUSTIFIED” and therefore exempt from any form of legal punishment. So…if you ever find yourself having to use force in NY to defend yourself your “defense” is Article 35.

The word DEFENSE…as in many things legal…has specific meaning beyond your common understanding.

In general, a (legal) defense is an argument a defendant raises in an attempt to avoid criminal or civil liability for their actions. In specific there are two different categories of defense. A DEFENSE and an AFFIRMATIVE DEFENSE.

A DEFENSE, when raised, must be disproved by the prosecution beyond a reasonable doubt.

An AFFIRMATIVE DEFENSE must be proven by the defendant by a preponderance of the evidence. The insanity defense is a common affirmative defense.

So. In NY the defense of Justification is a DEFENSE. Once raised, the prosecution has to gather evidence, from an argument, and prove beyond a reasonable doubt that your actions were NOT in self-defense or otherwise justifiable. You do not have to “prove” it. This may vary in other states.

This is typically where the discussion of “DON’T TALK TO THE POLICE” comes in. I’m not going to take a hard stance one way or the other here but it’s my personal opinion that you should be prepared to give a basic explanation of what happened to responding officers. A ” he jumped me, we fought, he pulled a knife, I was afraid for my life so I shot him.” sort of response MAY be the difference between going home that day or being arrested on the spot. Giving a lengthy explanation or going back to the station to write a statement without legal representation is another issue entirely.

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