All over the country, people are concerned about protecting themselves against violence from others. New York state is very strict with both firearms and other types of weapons, which can make some individuals feel as though their ability to defend themselves is limited. With or without weapons, New York has self-defense laws that stipulate when, where, and how individuals can protect themselves from another individual trying to harm them. Our experienced New York criminal defense attorneys with the Law Office of Benjamin Greenwald may be able to assist you in understanding when self-defense and firearms go together, and when they do not, in the state of New York. Call (845) 567-4820 to schedule a consultation and ensure your right to bear arms is legally protected.
What Is Self-Defense in New York?
In New York, as in most other states, self-defense is a legal term which respects the right of people to use force to protect themselves and others from harm. In some instances, that right also extends to protecting property. Specifically, self-defense is the defense of self or others against violence, including assault and other violence crimes.
What Are the Self-Defense Laws in New York?
New York Penal Law Article 35 § 35.15 states that individuals may use physical force upon another person when and to the extent that the individual reasonably believes that force is necessary to defend themselves or another individual from what they reasonably believe to be the use or imminent use of unlawful physical force by the other person. In New York, this is called justification, and in court, it is the defense of justification. The prosecution would be required to prove that an individual was not acting in self-defense.
One thing that is important to note about these self-defense laws is that the word reasonably is used twice. This is important because it means that both the belief that force is being or about to be used and the belief that the use of physical force is necessary to stop the attack must be reasonable. If one of them is not reasonable, a self-defense claim may not stand.
What Is Considered Reasonable Physical Force?
New York self-defense laws indicate it must be reasonable to believe that force is necessary to defend themselves and that it must be reasonable to believe the other person is using or about to use unlawful physical force. The law also uses the phrase “to the extent.” This means that when an individual does reasonably believe they must use force against what they reasonably believe to be an unlawful use of physical force, the physical force they use in self-defense must also be reasonable.
Reasonable force means that if someone slaps an individual across the face, the slapped individual may take actions such as grabbing the other person’s wrist to stop them, shoving them hard enough to put distance between them, or even pushing them through a doorway to close the door between them. What they may not do is stab the other individual with a knife or shoot them. Stabbing the individual or shooting them would be considered deadly physical force.
When Can Deadly Physical Force Be Used?
New York’s self defense laws do not allow the use of deadly physical force unless the individual has a reasonable suspicion that someone else is about to use or is using deadly physical force against themselves or another person. Deadly physical force is defined by New York Penal Law Article 10 § 10.00 as physical force that is easily capable of causing death or other serious injury under the circumstances. Firearms, many large knives, and several other types of weapons would be considered using deadly physical force, which is why it is important to understand when and how this type of force can be used.
In addition to the reasonable suspicion, the law also states a “duty to retreat” before using deadly physical force. This means that if the threatened individual is able to retreat with complete safety, they are required to do so instead of using deadly physical force. However, this duty to retreat does not apply when the individual is in their own home and not the aggressor. This duty also does not apply if the individual uses deadly physical force against someone who is actively committing a kidnapping, forcible rape, arson, robbery, or burglary or an occupied building or residence. If you have used deadly physical force and are concerned about facing weapons charges, the Law Office of Benjamin Greenwald may be able to review your case and assist you.
Can You Make a Citizen’s Arrest With Physical Force?
After using self-defense to protect themselves, or as part of defending themselves, some individuals may want to put the other individual under citizen’s arrest. New York law currently allows civilians to make citizen’s arrests for crimes that are actually committed in their presence. The arresting individual may use physical force if they believe it is necessary to effect the arrest or to stop the suspect from escaping. However, the arresting individual must be correct that the suspect committed the crime. If they are wrong, they may face prosecution. If they use deadly physical force, they may also be prosecuted for that.
While this is the current law in New York, New York Senate Bill S167 is legislation intended to abolish citizen’s arrest in the state. The bill has passed the Senate and if it passes the Assembly, it will then be passed on to the Governer. If the Governer signs it, citizen’s arrests will no longer be legal. Therefore, anyone who believes they would be willing to place someone under citizen’s arrest if the circumstances required it will want to keep a close eye on this bill to ensure that they do not break the law.
What Happens If You Are Prosecuted for Self-Defense, Citizen’s Arrest, or Using Deadly Force?
Generally, if a person is found to have acted in self-defense, they are not convicted of any crime. The act of defending themselves or others means that the action is not considered a crime, even if it would have been in other circumstances. The potential charges for a citizen’s arrest that is not correct include assault and kidnapping. The use of deadly physical force can lead to a number of charges, depending on the weapon used and what happens to the individual against whom the force was used.
These other convictions may impact an individual’s ability to own and possess firearms. Federal law 18 U.S.C. § 921 prohibits anyone convicted of a felony from possessing firearms. Additionally, those who are subject to a protective order dut to domestic violence are also prohibited from possessing firearms. The term “possess” is critical, because this means that not only can the individual not own a firearm, but they cannot borrow one from someone else, hold one for someone else, or otherwise have any firearm in their possession.
What Self-Defense Weapons Are Legal To Carry in New York?
The right to bear arms in New York is heavily restricted by some of the strictest gun laws in the United States. However, even with these laws, New Yorkers can still carry firearms with the appropriate registration and a concealed carry permit if they wish to carry the firearm on their person. If an individual only wishes to use the firearm at home or their place of business for self-defense, they are only required to have a license to have and possess the firearm, per New York State’s Gun Safety in NYS. However, if an individual does not have a concealed carry permit and uses their weapon somewhere other than their home or place of business, even in self-defense, they may face charges for using the firearm without the appropriate permit, which may result in the inability to possess firearms in the future if convicted.
Due to the self-defense laws requiring the use of reasonable physical force, some individuals may want to have a weapon other than a firearm to defend themselves. Many weapons, such as gravity or switchblade knives or metal knuckles, are illegal in the state of New York. Non-lethal weapons that are legal in New York for self-defense include key knives, credit card knives, and other small knives. Individuals may also carry pepper spray or mace without a permit as long as the chemical irritant is below a certain level. The container must also be pocket-sized and the spray cannot exceed a certain range.
Are Stun Guns or Tasers Legal in New York?
New York has had a law banning civilian tasers and stun guns for a long time. In 2019, in the case of Avitabile v. Beach (1:16-CV-1447), a federal judge ruled that this law is unconstitutional. However, the law has not yet been changed or repealed. Therefore, many citizens are confused about whether they can legally carry a stun gun or taser in New York.
The New York Courts Ask a Law Librarian section acknowledges the complexity of this particular question. The section also acknowledges that in the case of People v. Johnson, a New York court has ruled that the federal judge’s ruling is not binding. Because the law is still in effect and there is conflict between the courts as to whether the federal judge’s ruling is binding, it is strongly suggested that individuals who are considering a stun gun or taser as a method of self-defense speak with an attorney to learn more about the legal pros and cons before making a decision.
How Can a Criminal Defense Attorney Assist You With New York’s Self-Defense Laws?
While the right to bear arms is protected by the United States Constitution, it is also limited by state laws and eliminated completely when an individual is convicted of a felony. The use of firearms as a form of self-defense could lead to a felony conviction in certain circumstances. This is why it is important to understand New York’s self-defense laws and what you can and cannot do to protect yourself and others against violent acts. If you have already acted in self-defense and are concerned about defending yourself and protecting your rights, the Law Office of Benjamin Greenwald may be able to review your case and work with you to construct your defense. Call (845) 567-4820 to speak with one of our knowledgeable criminal defense attorneys and learn more about your legal rights and options.
