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Guest Column

August 17, 2013

How does one define self-defense?


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.

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