defend yourself!

Standard disclaimer:

Fencers, McGill boxing, wrestling and fencing ...
Fencers, McGill boxing, wrestling and fencing club, Montreal, 1925 (Photo credit: Musée McCord Museum)
  • 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.

Now we get to the heart of justified use of force in self-defense within the State of New York:

35.15 Justification; use of physical force in defense of a person.

1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:

(a) The latter’s conduct was provoked by the actor with intent to cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or
(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

When reading any enforcement sections of law its vital to look for all of the AND’s, OR’s and UNLESS-ES and its important to read any other subsections referenced before you jump to an erroneous conclusion.

This section states you can use “physical force” to defend yourself or a third person “subject to the provisions of subdivision two“. This means that the section with the (2.) in front of it will spell out limitations.

Also note the “reasonably believes” part…reasonableness is defined as what an average person in similar circumstances might believe at the time of the event. The law requires only a reasonable, not necessarily correct, judgment of the situation. If someone approaches you with a “finger gun” in their pocket and states that they will kill you if you don’t get in their car and you shoot him, it doesn’t matter that he didn’t have a real weapon.  Conversely, if a guy walks up to you on the street and asks you the time, you cant preemptively throat chop him because you “just know” that he was about to mug you.

The “unless” part is also very important. It tells you what situations you will NOT be justified to use force in.  If you are the person who initiated a confrontation (with an intent to cause physical injury) you can’t claim self-defense if he/she or someone defending him/her starts kicking your ass. However, if you back out of the confrontation and clearly communicate that you “give up” and the other person continues to attack you now THEY are no longer justified and you are justified in defending yourself from that point forward. This effectively means you BOTH are now in some form of trouble, but you don’t have to take a beating after withdrawing from a fight you may have started.

You also can’t hold “fight clubs” in your basement and expect to use self-defense as a claim if things go wrong and you get charged with injuring or killing someone.

2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:

Everything in part (1.) only justifies your use “physical force”, not “Deadly Physical Force”…unless the stuff below is true.

(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is:

(i) in his or her dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter`s direction, acting pursuant to section 35.30; or

If you reasonably believe someone is using or about to use “Deadly Physical Force”  against you you are justified in using DPF yourself, UNLESS you know you can retreat WITH COMPLETE SAFETY to yourself or others. You do not have to retreat if you are in your home (and you are not the person who started the fight).

Cops don’t have to flee from the threat of DPF even if safe to do so. It is often wise to do so, but all sorts of thorny work related exceptions would come into play if it were mandated by law.

This is the section that gets some people wrapped around the axle over “stand your ground” laws. While…from one perspective I can see the “if I’m in the right why should the law require I flee?” point, I also think that avoiding unnecessary confrontation is always going to work out better in the long run. This law is not saying “to run” if the guy can shoot you in the back…that would not be “complete safety”. But if some guy outside your car is stabbing at your window with a knife (without success of course) and you can drive away…do so.

(b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or

If you reasonably believe someone is doing or about to do those heinous things you can use DPF to stop them.

(c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.

Some burglaries can authorize the use of DPF. This part refers to another section that explains what those circumstances are.

We will get to that later….

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