New York self defense laws... (discussion)

[Bigfoot]

Like me, some others here may have a hard time understanding legal mumbo jumbo.
I have researched this subject and I seem to get different answers to the same question.

For an example, Are we a "castle doctrine" state or not?
I got 3 answers while trying to figure that out.
1.) No
2.) Yes
3.) Yes, but is weak compared to other states "castle doctrine"

Or, is New York a 100% "duty to retreat" state?
Either in your residence or outside of it.

When someone has a question about laws. They should not get 3 different answers to the same question... Just sayin'

 

[C3D]

New York's self defense principles are enshrined in Article 35 of the Penal Law. This short article does a good job of summarizing the key bits: When Can I Use Deadly Force in Self-Defense in New York City? | Manhattan Criminal Defense Attorneys

To answer your question, NY is both a duty to retreat and a castle doctrine state. In other words, you must retreat if possible prior to using deadly force unless you are in your home (i.e., castle).

Note that retreat is not required when using deadly physical force to prevent the commission of one of the specified felonies in Article 35 (rape, arson, kidnapping, or some types of burglary).

 

[Acer-m14]

to bad the MS13 witness wasn't issued a gun and training when the no bail BS became law ..

 

[GOPerfect]

We have a duty to retreat when possible. If not possible, good to go.

Knowing the difference is very important. Difficult to understand at times.

Articulation is the key.

 

[spat]

Like me, some others here may have a hard time understanding legal mumbo jumbo.
I have researched this subject and I seem to get different answers to the same question.

For an example, Are we a "castle doctrine" state or not?
I got 3 answers while trying to figure that out.
1.) No
2.) Yes
3.) Yes, but is weak compared to other states "castle doctrine"

Or, is New York a 100% "duty to retreat" state?
Either in your residence or outside of it.

When someone has a question about laws. They should not get 3 different answers to the same question... Just sayin'

The law as written and the law as applied can be very different things.

Some counties, as long as the body falls into the window instead of out you're GTG.

Other counties unless 2 members of your family have already been killed and you've retreated to your panic room you're SOL.

Same law, different DA's.

 

[GOPerfect]

The law as written and the law as applied can be very different things.

Some counties, as long as the body falls into the window instead of out you're GTG.

Other counties unless 2 members of your family have already been killed and you've retreated to your panic room you're SOL.

Same law, different DA's.

I have never heard of the two dead thing. Can you elaborate?

 

[spat]

I have never heard of the two dead thing. Can you elaborate?

Hyperbole.

Just saying that in practice some DA's will go after you even when it's clearly justified (legally and morally). While other areas give wide latitude.

 

[GOPerfect]

Hyperbole.

Just saying that in practice some DA's will go after you even when it's clearly justified (legally and morally). While other areas give wide latitude.

Shit, I thought it was a real requirement.

 

[Darth]

You have a duty to retreat only if you can completely guarantee your and others personal safety.

Seems like you should be doing that anyway.

Lots of disinformation is spread about article 35.

 

[spat]

Shit, I thought it was a real requirement.

I bet some DA's think it should be.

 

[GOPerfect]

New York has a self-defense law based on the castle doctrine but it is considered much weaker than similar castle doctrine laws enacted in other states. In NYS, unlike Florida, a citizen has the duty to retreat from attackers if they feel they can safely to so. Within their home, the castle doctrine authorizes deadly force as long as the resident is not the instigator of the confrontation.


With respect to victims inside their home, New York’s Castle Doctrine states:


A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.


Again this is all about articulation, the way you tell the story and the words that you use.

Lawyers and cops are trained in articulation. We live it each and everyday, everything is a story; be the best at telling one.

If you cannot articulate or you are slow on question/anwer time, hire someone to speak on your behalf if found in a situation

 

[spat]

You have a duty to retreat only if you can completely guarantee your and others personal safety.

Seems like you should be doing that anyway.

Lots of disinformation is spread about article 35.

That's in general. I believe that isn't officially required in the home (castle doctrine).

Duty to retreat is the default. If there is an exception in the home that's castle doctrine (which NY has in theory). An exception outside the home would be stand your ground (which we very much do not).

You are right though, in general you should avoid conflict as long as possible (but no longer). You can go bankrupt winning a case.

 

[Robin]

I guess I am now going to rent my loft to an attorney so I we ever have a break-in, or home invasion, I can get first hand legal advise on weather its okay to return fire or not. Is there any aspect of life, from cradle to grave, that NYSSR hasn't codified into some fucking law. Effing stupid!

Robin

 

[fresch]

I feared for my life, I need a lawyer.
Speak no more.

 

[Airborneguy]

Self-defense in NY is not as bad as people make it out to be. I can tell you more than one story I’ve been involved in of people defending their lives with “illegal” guns and still having no problem with charges, even in the city and even with their own other issues going on like drugs and past convictions.

 

[spat]

Self-defense in NY is not as bad as people make it out to be. I can tell you more than one story I’ve been involved in of people defending their lives with “illegal” guns and still having no problem with charges, even in the city and even with their own other issues going on like drugs and past convictions.

You can of course get lucky.

In fact, the vast majority of justified self defense probably goes the way you describe.

But all it takes is the wrong DA and an election year and you could be screwed.

But, in my opinion it doesn't matter. You're legally justified long before actually exercising that right is a good idea. So, don't shoot until you actually think you don't have a choice. At that point the legal situation is irrelevant to the decision anyway.

At the same time, you can't wait any longer to shoot either, so you need to go from 0 to "as much force as you can bring to bear" instantly.

 

[C3D]

New York has a self-defense law based on the castle doctrine but it is considered much weaker than similar castle doctrine laws enacted in other states. In NYS, unlike Florida, a citizen has the duty to retreat from attackers if they feel they can safely to so. Within their home, the castle doctrine authorizes deadly force as long as the resident is not the instigator of the confrontation.


With respect to victims inside their home, New York’s Castle Doctrine states:


A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.


Again this is all about articulation, the way you tell the story and the words that you use.

Lawyers and cops are trained in articulation. We live it each and everyday, everything is a story; be the best at telling one.

If you cannot articulate or you are slow on question/anwer time, hire someone to speak on your behalf if found in a situation

GoPerfect, I am going to put a finer point on your post as New York State has the "standard" form of castle doctrine, not a weaker form, and is a completely different rule than Florida which no longer has the castle doctrine.

For a man's house is his castle, et domus sua cuique est tutissimum refugium.​

The section that you posted from the Penal Code is 35.20, which deals specifically with burglary situations and the exception to the "castle rule".


I would recommend our OP first start with reading the general rule is found in 35.15, where the general defense of justification (self-defense) is qualified with the following:

35.15.2(a) [A person may not use deadly physical force upon another person unless he] . . . 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 so doing by retreating; except that the actor is under no duty to retreat if he or she is . . . in his or her dwelling and not the initial aggressor [or a police officer, or stopping a kidnapping, rape or robbery, or the special cases of burglary in 35.20.]

The boldfaced bit is the so-called duty to retreat. It applies except as you posted in the case a burglary of your occupied home or dwelling. (Example: You live alone. Come home at night and from the driveway see a light on in your room. Draw your gun and go in to investigate. Find burglar, shoot. That's a bad shoot because the dwelling wasn't occupied for the burglary and you should have retreated even though the shooting was technically in your house.)

In Florida, there is no equivalent to the boldfaced words in NY that you must retreat. Therefore, the castle doctrine doesn't exist because there is no special rule for the home. Guy puts a gun in your face at the gas station, blast him even if you could safely run away. This is called the "stand your ground" law for that reason. (Stand your ground legislation also includes additional procedural elements in court, like who has to prove or disprove the defense which are also quite helpful.)

As a trivia note, the castle doctrine is an ancient one and actually originates in the Old Testament in Exodus 22:2-3 (look it up if you're curious!).

 

[spat]

GoPerfect, I am going to put a finer point on your post as New York State has the "standard" form of castle doctrine, not a weaker form, and is a completely different rule than Florida which no longer has the castle doctrine.

For a man's house is his castle, et domus sua cuique est tutissimum refugium.​

The section that you posted from the Penal Code is 35.20, which deals specifically with burglary situations and the exception to the "castle rule".

I would recommend our OP first start with reading the general rule is found in 35.15, where the general defense of justification (self-defense) is qualified with the following:

35.15.2(a) [A person may not use deadly physical force upon another person unless he] . . . 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 so doing by retreating; except that the actor is under no duty to retreat if he or she is . . . in his or her dwelling and not the initial aggressor [or a police officer, or stopping a kidnapping, rape or robbery, or the special cases of burglary in 35.20.]

The boldfaced bit is the so-called duty to retreat. It applies except as you posted in the case a burglary of your occupied home or dwelling. (Example: You live alone. Come home at night and from the driveway see a light on in your room. Draw your gun and go in to investigate. Find burglar, shoot. That's a bad shoot because the dwelling wasn't occupied for the burglary and you should have retreated even though the shooting was technically in your house.)

In Florida, there is no equivalent to the boldfaced words in NY that you must retreat. Therefore, the castle doctrine doesn't exist because there is no special rule for the home. Guy puts a gun in your face at the gas station, blast him even if you could safely run away. This is called the "stand your ground" law for that reason. (Stand your ground legislation also includes additional procedural elements in court, like who has to prove or disprove the defense which are also quite helpful.)

As a trivia note, the castle doctrine is an ancient one and actually originates in the Old Testament in Exodus 22:2-3 (look it up if you're curious!).

Stand your ground includes castles doctrine.

Castle doctrine is a special case of stand your ground that only applies in the home.

You cannot have stand your ground without castle doctrine unless you had the bizarre situation where you have a lesser right in your home than you did on the street. To my knowledge not even the Democrats are that insane, but give them time.

 

[Robin]

Self-defense in NY is not as bad as people make it out to be. I can tell you more than one story I’ve been involved in of people defending their lives with “illegal” guns and still having no problem with charges, even in the city and even with their own other issues going on like drugs and past convictions.

I trust your observation's on this Airborneguy but I think the DA's decision to prosecute is more likely the threat of jury nullification and how bad that makes their office look, than the best interest of justice.
Robin

 

[C3D]

Stand your ground includes castles doctrine.

Castle doctrine is a special case of stand your ground that only applies in the home.

You cannot have stand your ground without castle doctrine unless you had the bizarre situation where you have a lesser right in your home than you did on the street.

You can view it in those terms but that's inconsistent with the legal terminology and also with the traditional common law descriptions. The castle doctrine is at common law an exception from the duty to retreat. Under a stand your ground rule, there is no need for the exception because there is no duty to retreat.

 

[Airborneguy]

I trust your observation's on this Airborneguy but I think the DA's decision to prosecute is more likely the threat of jury nullification and how bad that makes their office look, than the best interest of justice.
Robin

They can’t prosecute if the law is not applicable. In cases where prosecution takes place, there is a legal basis for it.

It may not seem that way from the outside, but having witnessed this stuff for years, trust me, they only prosecute ANY case if there is language in the law to support the charges.

 

[Blimey]

New York's self defense principles are enshrined in Article 35 of the Penal Law. This short article does a good job of summarizing the key bits: When Can I Use Deadly Force in Self-Defense in New York City? | Manhattan Criminal Defense Attorneys

To answer your question, NY is both a duty to retreat and a castle doctrine state. In other words, you must retreat if possible prior to using deadly force unless you are in your home (i.e., castle).

Note that retreat is not required when using deadly physical force to prevent the commission of one of the specified felonies in Article 35 (rape, arson, kidnapping, or some types of burglary).

This still seems shocking to me that NY would allow a person to use deadly force to stop somebody else burning a shed (?) that's empty (?).

Mostly NY's self dense law to me seems pretty reasonable and makes sense.

 

[Robin]

My shed is very dear to me. It is mine, I swapped hours of my life for enough scrip so I could buy it and own it free and clear. Stay the fuck away from my shed.
Robin

 

[C3D]

This still seems shocking to me that NY would allow a person to use deadly force to stop somebody else burning a shed (?) that's empty (?).

Mostly NY's self dense law to me seems pretty reasonable and makes sense.

 

[96coal449]

She shed thread felling to shit.
3...2...1...

 

[dwa12479]

This still seems shocking to me that NY would allow a person to use deadly force to stop somebody else burning a shed (?) that's empty (?).

Mostly NY's self dense law to me seems pretty reasonable and makes sense.

I cant find it at the moment, but I know I've read it and also had that reinforced by Chris Frye of MDTS that the arson portion only applies to an occupied dwelling.

Your empty shed is a no shoot, but if your wife and kids are locked inside...fire-at-will.

 

[dwa12479]

Within their home, the castle doctrine authorizes deadly force as long as the resident is not the instigator of the confrontation.

As I understand it , if I hear a rustling downstairs, and they make no attempt to come upstairs where we all are, it's a no-no for me to go charging downstairs guns blazing, as that could be considered "instigating" the confrontation. That how LE sees it as well?

 

[96coal449]

As I understand it , if I hear a rustling downstairs, and they make no attempt to come upstairs where we all are, it's a no-no for me to go charging downstairs guns blazing, as that could be considered "instigating" the confrontation. That how LE sees it as well?

Just be sure to have a bedroom downstairs to readily be ''occupied."

 

[Darth]

My shed is very dear to me. It is mine, I swapped hours of my life for enough scrip so I could buy it and own it free and clear. Stay the fuck away from my shed.
Robin

She shed?

Aw crap, posted this before seeing the 2 beat me!

 

[Blimey]

As I understand it , if I hear a rustling downstairs, and they make no attempt to come upstairs where we all are, it's a no-no for me to go charging downstairs guns blazing, as that could be considered "instigating" the confrontation. That how LE sees it as well?

I like what you said about arson and that makes sense.

As for your sense about upstairs vs downstairs, I cannot imagine what you describe is initiating. They initiated by being in the house. For all you know your kid came home late or your wife is downstairs getting food. INAL (I'm not a lawyer), but I haven't seen anything in NY state law that says if you're all upstairs you are not allowed to go downstairs. This is not England where you've a duty to drop trou in an attempt to placate the poor burglar (he probably had a bad upbringing, so it's not really his fault).