Understanding how self-defense is governed in New York is critical for residents and visitors. D’Emilia Law has successfully defended against criminal charges of assault, manslaughter, or even murder by demonstrating clients faced immediate danger and had to protect themselves from aggressors.
Each circ*mstance is unique and certain details, such as the public or private setting of the altercation and the methods used for protection, make the difference when crafting a legal strategy based on self-defense.
Let’s briefly discuss some self-defense tips when in New York.
New York State Law: Self-Defense
Self-defense is described in Article 35 of New York’s Penal Law Code. It is also known as “justification,” and describes when defendants are reasonably “justified” in using physical or deadly force to defend themselves.
NY Penal Law 35.15 states:
…a person may use physical force upon another individual when, and to the extent that, he/she reasonably believes it to be necessary to defend himself/herself [or someone else] from what he/she reasonably believes to be the use or imminent use of [unlawful] physical force by such individual.
Justification defines non-lethal “physical force” and “deadly force.” It also describes where it can be reasonably asserted to protect:
- themselves or others,
- homes or premises,
- and to prevent criminal mischief.
Justification is proportional, however, and so much depends on reasonable belief. If an unarmed aggressor punched or kicked you, a jury might sympathize if you punched or kicked back; but if you retaliated with a gun, the jury may believe you reacted disproportionately and unreasonably.
The same can generally be said for retaliating against a verbal threat with physical force. Someone saying they will burn your house down does not constitute an imminent threat and will not make you justified (nor reasonable) in using physical force to harm them.
Assessing imminent danger and retaliation is challenging (and that’s why we have criminal trials) because there are so many factors to consider. Article 35 has been amended and updated several times over the years to address all the variables and will likely continue.
NY’s Duty to Retreat and Castle Doctrine
New York State is also governed by a “duty to retreat.” This concept does not mean surrender; but rather, before you act in self-defense you must take reasonable actions to mitigate the risk of harm, which includes fleeing and calling the police. For example, you would have a duty to retreat if someone threatened violence while you dine in a public park. The duty to retreat is essentially the opposite of a “stand your ground law,” where you are not obligated to flee the scene if threatened.
But retreat may not always be possible or required. If you are in your home, for example, there is no duty to retreat if an aggressor intrudes and threatens physical harm. This concept is guided by the “castle doctrine,” a clause that typically refers to defending yourself inside your property. It ties to the old adage that “one’s home is his or her castle,” and they should not have to abandon it amid a threat. The key difference between the castle doctrine and stand your ground, is that the former takes place in private settings, like homes or businesses.
If an intruder entered your house and you used deadly force because you believed you were in danger, the castle doctrine may be applied after-the-fact, as part of your defense in court. It is not a license to kill and – taken a step further – does not “allow” you to harm anyone. For example: luring someone into your house, shooting them, and then claiming self-defense under the castle doctrine later will not exonerate you.
Use General Caution
It is very difficult to be mindful of these seemingly-conflicting laws when facing an imminent physical threat. New Yorkers may defend themselves from imminent physical harm, but also:
- Must act reasonably in an effort to justify their self-defense.
- Have a duty to retreat in public, and
- May not hide behind any law as an excuse to kill or harm someone else.
We are providing a general overview of this topic — there is no way to examine all legal precedent for self-defense in one blog post.
If you can do so safely, take refuge before meeting deadly violence in kind. An act of self-defense may result in legal action against you. If the police take you into custody, you should call a criminal defense attorney in NYC. We have also provided tips your loved ones can follow to help your defense.
As previously discussed, D’Emilia Law maintains that an arrest is not the end of your life and not the same as a conviction. A strong and strategic defense can uphold your innocence, keep you out of jail and reduce your charges and fines.
If you or a loved one has been charged with any crime in New York, contact D’Emilia Law, criminal defense lawyers in NYC, for a consultation.
FAQs
New York's Penal Law, specifically Article 35, outlines situations where an individual may be justified in using physical force. Under the law, an individual can use the amount of force needed to defend themselves or others who are in imminent danger of harm from the illegal use of force.
Is self-defense legal in NY? ›
New York Penal Law §35.15, authorizes the use of physical force when and to the extent the person reasonably believes that the force is necessary to defend either herself, himself or another person from what the person reasonably believes to be the imminent use of physical force or the actual use of physical force.
What is the burden of proof for self-defense in NY? ›
A: In general, the burden of proof for self defense in New York falls on the prosecution. This means that if you claim you were acting in self defense, the prosecution must be able to prove that you were not acting in self-defense in order to convict you.
What self-defense weapons can I carry in NY? ›
If you're short on time, here's a quick answer to what's allowed: In New York, legal self defense weapons include pepper spray, mace, some stun guns and tasers. Firearms require a permit that can be difficult to obtain.
In what states is self-defense legal? ›
Thirty-eight states are stand-your-ground states, all but eight by statutes providing "that there is no duty to retreat from an attacker in any place in which one is lawfully present": Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, ...
Is NY a stand your ground state? ›
No — New York state has a self defense law, but not a “stand-your-ground” law like those in some other states, rather a castle doctrine.
When can you use a gun as self-defense in New York? ›
In New York State, the legal standard for self-defense is governed by the Penal Law. Under New York law, a person may use physical force, including deadly physical force, to defend themselves or another person if they reasonably believe it is necessary to protect against the imminent use of unlawful force.
What must the defendant prove to successfully claim self-defense? ›
In order for the defense to be successful, you must establish: You reasonably believed the other person was in imminent danger; You reasonably believed that the use of reasonable force was necessary to prevent harm; and. You only used the amount of force necessary to prevent harm.
Who bears the burden of proof in self-defense? ›
One such defense is the defense of self-defense. If the defendant can prove that they acted in self-defense, the burden of proof then shifts to the prosecutor to prove that the defendant did not act in self-defense.
Who has the burden of proving the allegation of self-defense? ›
Once the defendant has presented sufficient evidence to raise self-defense as an issue, the State has the burden of proof to overcome the defense beyond a reasonable doubt. It is a decision for the jury as to whether the State has met the burden of proof.
Is it illegal to carry a knife for self-defense? Even if you are only carrying a knife for self-defense, you may still be subject to summons and/or arrest if the circ*mstances indicate that the knife is used or possessed as a weapon. If you feel threatened or in danger, call 911 for police assistance.
Can you carry a gun on your person in New York? ›
New York prohibits the possession of a “loaded” handgun outside of the home or place of business without a license. While no law specifically bans open carry, a pistol license to carry is issued to carry concealed. Concealed carry is only legal with a New York Pistol License (NYPL).
What happens if you use a gun in self-defense in NYC? ›
There are only certain circ*mstances under which a person can assert the justification of self-defense in cases involving deadly force. Since New York imposes a duty to retreat, it is only permissible to use deadly physical force when there is no other option.
Can a woman defend herself against a man? ›
It's time to set the record straight and debunk some of the most common falsehoods. Here are a few crucial things that you should know are NOT true. A woman is fully capable of defending herself against a man in a straight-up fight with minimal effort and training.
What is the rule of law for self-defense? ›
You have the right to act in defense of yourself and others. However, you must prove that you acted reasonably and used an appropriate level of force. Hiring an attorney to handle your defense helps to ensure that your argument is successful.
What is the Castle Doctrine in NY? ›
The Castle Doctrine applies when the potential victim of violence is in their own home. In those cases, the homeowner is free to use deadly force to defend both themselves and their family. There is no expectation for someone in their home to flee their own residence.
Can you own an assault weapon in New York? ›
New York's assault weapon law prohibits manufacturing, transporting, disposing of or possessing an assault weapon in the state.
Are brass knuckles illegal in NY State? ›
New York State, known for its stringent laws and regulations, expressly prohibits the possession and use of brass knuckles through as state in § 265.01(1) of the New York Penal Law. This statute clearly delineates the illegality of possessing such weapons, including plastic knuckles and metal knuckles.
Are assault weapons legal in New York State? ›
Assault weapon law? Possession of assault weapons is prohibited, except for those legally possessed on January 15, 2013 and registered with the state by January 15, 2014 or classified as an antique assault weapon. New York City, Buffalo, Albany, and Rochester have enacted their own assault weapon bans.
