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August 17, 2013

How does one define self-defense?

By Judge Brian D. Burns Guest Commentary
The Daily Star

---- — The George Zimmerman case in Florida, and the public reaction to the jury’s verdict of non-guilty, has given rise to much public discussion of the laws that govern the use of deadly physical force in self-defense.

For those of us living in New York State, it is important to know that our laws are quite different than the laws of Florida. No one should base their actions on a misunderstanding of the relevant law or a belief that our law is synonymous with the law in Florida.

For those who may be unfamiliar with the case, George Zimmerman was a member of a neighborhood watch group in Sanford, Fla., who believed he saw a suspicious-looking youth on the street one evening. He called the police, and even though he was advised that he did not need to follow the young man, he did so. A confrontation ensued, during which Zimmerman claimed the young man, Trayvon Martin, repeatedly struck him in the face.

Zimmerman further claimed that Martin wrestled him to the ground, got on top of him and slammed his head into the pavement. Zimmerman was armed with a handgun, which he used to shoot and kill Martin. Zimmerman told the police he was in fear of his life when he shot Martin. Martin, a teenager, was unarmed and was walking home from a convenience store at the time of the incident.

In New York, generally speaking, a person may only use any physical force upon another person when, and to the extent, he or she reasonably believes such to be necessary to defend himself or herself from the imminent and unlawful physical force by another person. He or she may not do so if he or she is the initial aggressor and he or she provoked the imminent use of force against himself or herself.

In other words, a person can’t pick a fight, then justify punching or hitting another person by claiming fear of getting hit or losing the fight. In addition, the degree of force allowed in self-defense must be proportionate to the degree of force being used against the person. The old saying that you should bring a knife to a fist fight if you want to be sure of winning might be good advice on how to win, but doing so will deprive you from claiming self-defense in New York courts.

The legal use of deadly physical force, as opposed to mere physical force, is subject to further restrictions. A person may not use deadly physical force if the person knows that with complete personal safety, he or she may avoid the necessity of doing so by retreating. This provision is in stark contrast with the so-called “stand your ground” laws that many states have on their books, which provide that there is no duty to retreat from a deadly encounter.

It is worth repeating that in New York, if you can safely walk away from a confrontation instead of using deadly physical force to defend yourself, you must walk away. If you don’t, you will not be able to claim that is was necessary to take a person’s life to protect your own.

Of course, there are many fine distinctions and exceptions in the law, too numerous to cover in this commentary. Some of the most notable, however, bear mentioning. For example, someone can use deadly physical force in self-defense when he or she is not the initial aggressor and is reasonably in fear that another is about to use deadly physical force against him or her, without the need to retreat, when the confrontation occurs in his or her own home. Similarly, a person may use deadly physical force to prevent or terminate the commission of an arson of a building.

It is impossible to know whether a jury would have found George Zimmerman acted in self-defense and acquitted him of a charge of murder had the incident occurred in New York. Each state legislature has the freedom to enact its own laws, and there is little uniformity across the nation when it comes to defining self-defense.

What everyone can agree on, however, is that a periodic review of whether the laws reflect the community’s view on this issue is appropriate. That review necessarily starts with an understanding of the current law in one’s home state, and it is hoped that this commentary may provide some small measure of guidance in that regard.

OTSEGO COUNTY JUDGE BRIAN D. BURNS is an Acting Supreme Court Justice and a Cooperstown resident.