Roebling, NJ asked in Criminal Law for New Jersey

Q: If someone violates a restraining order and I feel my life in danger, could I get justifiable homicide if I killed him

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Louis A Casadia
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  • Criminal Law Lawyer
  • Hammonton, NJ
  • Licensed in New Jersey

A: This question is a very fact sensitive analysis. The fact that you have a restraining order against the individual would not, by itself, justify a homicide. However, it would be one fact to be considered in determining if the affirmative defense of Self Defense applies. Self Defense in New Jersey is governed by 2C:3-4. In any trial for Self Defense once the defense establishes that their is some evidence to suggest self defense occurs, the Prosecution then has to prove beyond a reasonable doubt that at least one element of self defense does not apply.

For Self Defense with the use of deadly force to apply the following elements must be supported by some evidence (and then not be proven to not apply beyond a reasonable doubt):

1) The person reasonably believes he/she must use deadly force; and

2) The person reasonably believes that the use of deadly force was immediately necessary; and

3) The person reasonably believes he/she is using deadly force to defend himself/herself against death or serious bodily harm; and

4) The person reasonably believes that the level of intensity of the force he/she uses is proportionate to the unlawful force he/she is attempting to defend against.

There are also other restrictions to self defense which included:

A) If you, with the purpose of causing death or serious bodily injury, provoked or incited the use of force against yourself in the same encounter then self defense does not apply; and

B) If you knew that you could have avoided the use of deadly force by retreating, and that you knew you could have retreated with complete safety, self defense does not apply.

The duty to retreat does not apply if you are located in your own dwelling or porch unless you are the initial aggressor. This is called the Castle Doctrine.

So how would this apply to your situation? Well first, the fact that this person has a restraining order against him and is purposefully violating it would conceivably be evidence of the reasonableness of your belief as to the four Self Defense Elements. What would also be relevant and admissible (State v. Jenewicz, 193 N.J. 440, 459 (2008)) are any prior incidents that you were aware of at the time of the homicide that had to do with the reasonableness of your fear. For example, if the subject of the restraining order previously assaulted you or committed other crimes against others that you had actual knowledge of at the time then these incidents should technically be admissible to support the reasonableness of your beliefs under the self defense elements. However, you may have to testify to support the admission of any incidents that did not involve you because you would have to show you were aware of them.

Other then that, whether you are justified or not is going to depend on all the other surrounding circumstances. Did he come to your home? Did he have a weapon? How far away from you was he? What time of day was it? Was it dark outside when it happened? Were you with anyone else at the time? Was he with anyone else at the time? Did you warn him before you, lets say, fired a gun at him? Did he do anything violent like kick your door down? Did he make any quick or furtive gestures? The list goes on and on.

At the end of the day understand one major thing. Whether you get charges or not charged in this type of situation is decided by a Prosecutor. That Prosecutor is a human being like anyone else, he or she has certain opinions and pre-conceived notions about certain things. One Prosecutor may decide not to charge you, that you acted in self defense, another may decide to charge you and that you didn't act in self defense. If you are charged you would have to fight your case in front of a jury who, a group of 12 strangers who are going to make a judgement call based on the facts and law I just mentioned. It may help also to read the Self Defense model jury instruction:

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