Self-Defense in New York

Self-defense has been getting a lot of bad press lately. The news has been flooded with opinions concerning what are commonly referred to as “Stand Your Ground” laws. The catalyst for this discussion is the case of George Zimmerman, charged in Florida with second degree murder for killing Trayvon Martin this past February. Zimmerman claims self-defense. He says that Martin attacked him on the street, broke his nose, and banged his head against the sidewalk. At that point, Zimmerman admits, he shot and killed Martin. Recent medical reports tend, in the minds of some observers, to support Zimmerman’s claim of self-defense – he ended up with a broken nose, lacerations on his head and black eyes; Martin had bruised knuckles, but no other injuries, at least that we’ve been told about. Whatever the final result in the case, we can all agree that it was a tragic incident, and none of us knows for sure what actually occurred.

The most controversial aspect of the case, though, and the reason it has received so much attention in the news, is section 776.012 of the Florida statutes, which states in pertinent part that “a person is justified in the use of deadly force and does not have a duty to retreat if . . . [h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony . . ..”

It’s the “no duty to retreat” concept that has some people up in arms. What it means is that in Florida, even if someone has a safe way of exiting the scene, he or she may legally choose to defend with deadly force rather than walk away. And the burden of proof in these cases is on the prosecution to prove that a defendant (charged in this case with murder) was not justified in using deadly force.

In New York, the pundits appear to be somewhat smug in pointing to Florida’s law, saying, at least by implication, that we’re too civilized for such conduct up here. Indeed, the New York Times published an Op-Ed piece in March entitled “Florida’s Disastrous Self-Defense Law.” And Mayor Bloomberg has criticized the National Rifle Association as being a contributor to the problem. The Mayor has gone on record calling for an end to such laws nationwide:

“In reality, the NRA’s leaders weren’t interested in public safety. They were interesting in promoting a culture where people take the law into their own hands and face no consequences for it. Let’s call that by its real name: Vigilantism.”

So you might conclude that while states such as Florida are saddled with barbaric Stand Your Ground laws, this couldn’t happen in a civilized, cosmopolitan place like New York. Well, the news is that not only could it happen in New York, it already has. And to see why, we have to take a look at the New York self-defense statutes as they exist today.

New York’s Stand Your Ground Law

Self-defense under New York law is called “justification.” It is a defense to actions which would otherwise be criminal. Like Florida, once justification, or self-defense, is raised by a defendant in a criminal trial, the burden is on the prosecution to prove, beyond a reasonable doubt, that the defendant’s conduct was not justified. Also like Florida, New York law permits the use of deadly force in a number of situations not related to the current discussion, including some involving police officers, and others relating to stopping a serious felony in progress. But what about the provision of the Florida law that everyone is complaining about – the part where you don’t have to back down? Well, here’s a portion of the New York justification statute relating to the use of deadly force:

“A person may not use deadly physical force upon another person . . . unless [t]he 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 doing so . . .”

So far, so good. New York is still a modern jurisdiction that adheres to non-violent solutions to a problem. The difficulty is that the statute goes on to say 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.” (emphasis supplied).

Getting back to the debate over Stand Your Ground laws, it does appear that the only substantial difference between the laws of New York and Florida in this regard involves where the events take place. We understand the visceral reaction to being threatened with serious bodily injury in one’s home; it feels as if it’s appropriate for the homeowner to stand his ground. Indeed, this concept, originally called the “Castle Doctrine” (my home is my castle, etc.), represents the genesis of all the Stand Your Ground laws on the books today. Logically, however, if the central issue is the sanctity of human life, why should the difference in the way the law treats self-defense depend upon the location of the act?

It is not for this New York criminal lawyer to opine on the wisdom of the various laws in New York State. Nevertheless, it is apparent if you are a New Yorker and would like to point the finger at Florida, look closely – there may be three fingers pointing back at you.

George Vomvolakis Law Offices
275 Madison Avenue
New York, NY 10016
(212) 682-0700

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