JUSTIFICATION ‑ SELF
DEFENSE
USE OF FORCE IN DEFENSE
OF PERSONAL PROPERTY
(N.J.S.A. 2C:3‑6c) model jury charge
The State claims that the defendant
illegally used force against the victim in this case. The defendant, on the other hand, claims that
he/she had a
justifiable right to use the level of force he/she did
use to protect his/her
personal property. Personal property is
defined as tangible items other than real estate consisting of things that are
moveable, temporary or consumable in nature, commonly known in the law as
chattels.
In other words what the State
alleges as an illegal assault, the defense characterizes as a justifiable legal
defense of defendants personal property or personalty.
The law recognizes that a person
cannot use deadly force to protect personal property, but can only use a
non-deadly level of force upon another person when he/she
reasonably believes it necessary to prevent that other person from attempting
to commit a theft criminal mischief or other criminal interference with
personal property in the defendant's possession or in the possession of another
for whose protection the defendant reasonably believes he/she is
acting.
Remember that deadly force cannot be
used by a person protecting his/her own
personal property or that of another (unless justified for some other lawful
purposes other than the protection of personal property such as self-protection
of his/her
physical well-being or protection of another person, or the protection of his/her
premises).
Our law defines deadly force as
force used with the purpose of causing death or serious bodily harm or which
the user knows can create a substantial risk of death or serious bodily
harm. Serious bodily harm is an injury
which creates a substantial risk of death, or which causes serious, permanent
disfigurement, or which causes the protracted loss or impairment of the
function of any part of the body.
Shooting a firearm at somebody, or even at a place where the shooter
believes somebody to be, is deadly force.
However, pointing or otherwise brandishing a weapon is not deadly force,
so long as there is no actual purpose to use the weapon.
The other level of force which a
defendant may be entitled to use with limitations about which I shall instruct
you is called non-deadly force. To
understand this term you should think of this force as any violence, compulsion
or constraint executed against a person short of force that poses a threat of
causing death or serious bodily harm. It
will be your function to decide what level of force was used. If deadly force was used, then this defense
fails. If non-deadly force was employed,
then you must determine if it was used properly so as to justify the acts of
the defendant.
A person has the right to use
non-deadly force to protect personal property if three conditions exist:
1. The person is in possession or control
of personal property lawfully belonging to him/her or if his/her
personal property is in possession of another, he/she
is acting to protect that person's lawful possessions, and
2. The
person reasonably believes he/she has to
use force. [A belief is reasonable if a person of ordinary prudence and
intelligence, in the circumstances of this defendant, would hold it.], and
3. The
force has to be used and he/she must
reasonably believe it is used to prevent or end the commission or attempted
commission of a theft, criminal mischief or other criminal interference with
personal property.
Therefore, when you consider the
defendant's right to use non-deadly force, you must first determine if these
three conditions existed. If they did
not, you should go no further, because the defendant had no legal right to
resort to any force. If you find that
these conditions did exist, the use of force in defense of one's personal
property is limited.
One limitation requires that the
defendant request the actor to desist.
This limitation requires the user of force first to ask the target of
the force to stop or end his/her criminal activity.
The
user of force does not have to make this request, however, if he/she
reasonably believes:
1. The request would be useless, or
2. Making the request would be dangerous to
the would‑be requester or anybody else, or
3. Before the request can be effectively
made, substantial harm will be done to the physical condition of the personal
property.
It is
up to you to decide whether or not this limitation on the use of force to
protect personal property, the request to desist, applies. If you find that it does and the defendant
failed to make such a request, then the defense fails.
[USE
THE FOLLOWING IF THE FACTS APPLY]
If, however, you find that this
limitation does not apply, then you must examine another limitation.
To protect personalty, the defendant
user of force cannot use that force to eject a trespasser, if defendant knows
that the trespasser, when ejected, will be exposed to a substantial danger of
serious bodily harm.
If you conclude that no limitation
applies to restrict this defendant's use of force, then you should find the
defendant not guilty. If on the other
hand, you have found beyond a reasonable doubt that a limitation does apply to
the facts of this case, then the defense fails.
Always remember that the State
maintains the burden of proving beyond a reasonable doubt that this defense is
not justified under the facts of this case.
