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The New Law of Self Defense?

August 17th, 2011
By John Rubin

[Editor's note: John is the author of The Law of Self-Defense in North Carolina, an in-depth analysis of North Carolina’s approach to the use of defensive force. It's available for purchase here.]

North Carolina law recognizes various circumstances in which a person may lawfully use force against the threat of harm. Through decades of decisions, the North Carolina appellate courts have recognized the right to defend oneself, other people, and one’s home and property, among other interests, and have developed rules on when those rights apply and amount to a defense to criminal charges. New G.S. 14-51.2, 14-51.3, and 14-51.4 address several of the circumstances in which a person may use defensive force. The statutes restate the law in some respects and broaden it in others. The courts will have to examine their procedures closely to give effect to the new statutory language. The new statutes are part of S.L. 2011-268 (H 650), which applies to offenses committed on or after December 1, 2011. (That legislation also revised several other statutes to expand the right to own, possess, and carry a gun, which Jeff discussed in a previous post.)

For example, the new defensive-force statutes recognize the right to use deadly force against a forcible, unlawful intrusion into a motor vehicle. The courts therefore will need to develop new jury instructions to reflect this right. If faced with such a threat, a person often would have the right to use deadly force under existing doctrines as well—namely, the right to defend oneself and any other vehicle occupants and to prevent the commission of a dangerous felony. A person would have the right to raise these defenses and have the jury instructed on them, in addition to the new defense of motor vehicle, in light of the general principle that a person may rely on multiple defenses that arise from the evidence and on the statement in new G.S. 14-51.2(g) that the statute “is not intended to repeal or limit any other defense that may exist under the common law.”

To take another example, the courts will have to incorporate into their procedures the new statutory presumption of lawfulness, applicable to the use of deadly force against a forcible intrusion into a home, motor vehicle, or workplace. The law has allowed a person to use deadly force against such intrusions, but the courts will have to consider the new presumption in evaluating whether the State has offered sufficient evidence to withstand a motion to dismiss by the defendant and, in cases that go to the jury, will have to give appropriate instructions explaining the presumption. The following summary highlights the key provisions of the new statutes; it does not attempt to address all of the issues the courts will need to consider.

New G.S. 14-51.2 modifies defense of habitation, called defense of home in the statute; explicitly recognizes a comparable defense for the workplace; and adopts a new defense involving motor vehicles. All involve defending against forcible intrusions into those areas under the circumstances described in the statute. Most important, the statute creates a presumption of lawfulness in the sense that if a lawful occupant of a home, motor vehicle, or workplace uses deadly force against an intruder and meets the other conditions in the statute, the occupant is presumed to have held a reasonable fear of imminent death or serious bodily harm to himself, herself, or another. The statute states that the new presumption is rebuttable and does not apply in five detailed instances, as when “the person against whom the defensive force is used has the right to be in or is a lawful resident of the home, motor vehicle, or workplace, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person.” The act repeals G.S. 14-51.1, which modified the common law version of defense of home to allow deadly force to terminate as well as prevent entry by an intruder. Repealed G.S. 14-51.1 also stated that a person has no duty to retreat from an intruder into the home. New G.S. 14-51.2 restates these principles for defense of home, motor vehicle, and workplace cases.

New G.S. 14-51.3 addresses the right to use deadly and nondeadly force to defend oneself and others. The statute appears to track the courts’ approach to these rights in most respects, but it may introduce new principles or at least clarify existing ones. For example, the statute states that a person is justified in using deadly force and does not have a duty to retreat in any place he or she has the lawful right to be if the person reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself, herself, or others. The statute does not limit this principle to cases involving a home, motor vehicle, or workplace. Under current law, a person has no duty to retreat in comparable circumstances (that is, when a person is faced with a felonious assault), but the statute’s express statement of the principle may require the court to instruct the jury about it in all cases.

New G.S. 14-51.4 describes the circumstances in which a person is not entitled to rely on the defenses in new G.S. 14-51.2 and G.S. 14-51.3—for example, when a person is the aggressor by initially provoking the use of force against himself or herself. Again, these circumstances are similar in many respects to those recognized under current law, but differences exist, requiring close comparison of the statute to existing doctrines.

Over the next few weeks I will be working on a longer bulletin about the implications of the new statutes for defensive force cases. If you have any thoughts about the changes, please let me know.

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46 Responses to “The New Law of Self Defense?”

  1. Prosecutor says:

    If I read the new 14-51.3 correctly, it looks like North Carolina now has what Florida affectionately calls the, “Stand your Ground,” rule.

    • John Rubin says:

      I’m not sure of the rule in Florida, but for various reasons many states, including North Carolina, have not required a person to retreat when faced with a threat of harm. The person may not use more force than reasonably necessary (for example, deadly force when faced with a simple assault), but the person may meet “force with force” and “exchange blow for blow” in the words of our cases. I believe that has been the law in North Carolina (inside and outside of the home), but the new statute makes the law much clearer and may require the courts to instruct the jury explicitly on the right not to retreat.

      • GO.UNC says:

        YES!! Stand ground. We are Tar Heels for a reason. I live on the east coast in a trailer like most of us do. I also have a pistol, like most of us do. It takes little to no force for a man to kick open my door. I’m going to defend myself…Thinking I’m gonna have to shot this guy in the knee or something. And prey .22 bullet did just enough damaged to let me run out the other way. “Life in prison? For defending myself? Go on and kill me.” The break-ins here are happening more often, and to close to home for comfort. I feel like I can take a deep breath.. For the first time, I feel like the law is on our side.

  2. Prosecutor says:

    Florida’s law is here. It was quite controversial when it was enacted in 2005; the Brady Bunch campaign started passing out fliers at airports warning new visitors to not get into arguments with, “local people,” since they could now get shot. It looks like SL 2011-268 tracks Florida closely now, except Florida allows deadly force to prevent a “forcible” felony, as opposed to our, “serious bodily harm,” requirement for the same force.

    How have our courts interpreted, “serious bodily harm,” in the context of self defense? A simple fist fight probably does not justify deadly force, but how about when the victim starts getting teeth knocked out or bones broken? Or, how about when the victim is armed, and a struggle ensues. The threat of great bodily harm is present because the aggressor could get the weapon and then use it against the victim. Would that justify a preemptive use of force by the victim against the aggressor? How about pointing the firearm and threatening its use?

    Those situations are why most all concealed carry instructors teach their students that the first thing they do in any situation is to avoid that situation in the first place.

    • John Rubin says:

      I’ll remember your advice next time I visit Florida. As for the the meaning of “serious bodily harm,” that’s a new term in self-defense law. The courts have required a reasonable fear of “great bodily harm” as a condition of using deadly defensive force but have not defined the term. Cf. State v. Ramseur, 338 N.C. 502, 507 (1994) (stating that for the serious injury element of an assault offense “injury must be serious but it must fall short of causing death” and that “further definition seems neither wise nor desirable”). In using the term “serious bodily harm,” the General Assembly may have been thinking about the term “serious bodily injury,” which has crept into our law through offenses such as assault inflicting serious bodily injury. The statutory definition of that term (see 14-32.4(a)) may be an apt proxy for serious bodily harm or great bodily harm. So, would the potential injury from ordinary fisticuffs constitute serious or great bodily harm and justify deadly force in response? Without more, probably not. On the other hand, being beaten to a pulp (or reasonably fearing such a beating) probably would be enough.

    • Richard McMahon says:

      Mr. Rubin: I think that “Prosecutor’s” disrespectful reference to the Brady Campaign is inappropriate and unacceptable. Are you condoning it? Rich McMahon.

      • Steve says:

        In regards to Richard’s thinking that reference to the Brady campaign was inappropiate, well see if this makes it more clear. The whole BRADY BUNCH are nothing more than liberal communist and are a major part of the problem with this country now. Anyone that is aginst gun rights needs to go live in another country. And as far as banning firearms, you think the criminals are going to just hand over theirs? I think not. The Brady Bill just caused more problems for the law abiding gun owner. I don’t care who finds this disrespectful, inappropiate or unacceptable. Anyone that is against the 2nd admenment is a threat and enemy of this country.

    • laverne says:

      if you were in a nite club and someone was a threat to you and later pull a gun out and threating to shoot you,do you have the right to defen yourself with deadly force,or get kill by that person with the gun that threat to kill you?Is that self defense?

  3. Prosecutor says:

    I agree with your assessment. It just makes sense that the courts would ultimately wind up borrowing from the assault jurisprudence. I interpret the new statute as something more than just a fist fight where the shooter is at lest evenly matched in size, skill, and opportunity with the aggressor; or if there are multiple bad guys involved (Bernie Goetz would be safe in my book).

    I ultimately do like Florida’s wording a whole lot better than North Carolina’s. It is much more succinct, elegant, and includes a requirement that the shooter not be engaged in an unlawful activity (that rule automatically eliminates any convicted felon since they cannot lawfully possess a firearm). A lot of the criticism of Florida’s law is based on a few cases where one thug shoots another thug, and the law supposedly plays a role in not seeking charges. (It does, however, wind up with one less thug in the world.)

    Ultimately, though, I highly doubt we will get any real case law on this point, since 99% of the cases involving the new law will involve either a law abiding citizen shooting a thug (easy call to decline prosecution and thank the citizen for chlorinating the gene pool), or one thug shooting another thug over a drug deal gone wrong (he’ll plead guilty to Discharging a Weapon into Occupied Clothing and Possession of a Firearm by a Felon, so no appeal). Seeing as how the General Assembly has been consistently making it harder to lock the thugs up, I am certainly open to any “extra-judicial” methods of keeping scumbags in check.

    • GO.UNC says:

      Prosecutor…. my, my, my. I really hope your not really practicing law. You’ve just agreed to my statement. “Law is not on our side.”
      Your view is all wrong. You think NC just made it an even fight?? I’m 5’2, 125lb never been in a fight in my life. Someone having to defend there life against an aggressor. There the “aggressor” for a reason. They are bad people with bad intentions. The law didn’t make me bigger, stronger, faster, or viloint. The law gave me the right to shoot you before you get to me. All it takes is one good hit to the head by a grown man and I’m out. Also the aggressors energy is sky high, he just broke into my house. Which that just makes him faster, stronger.
      Of course you like Floridas law. It’s a play on words. Elegant?? No, that just means jerks like you use elegant words to tip the law into what you think is fair and right. Which a racics, swamp rat like yourself does NOT know whats right and fair. Gang hoodlums are spreading like a plauge. NC Law “CLEARLY” not “ELEGANTLY” States in plain English. I have the right to defend myself, my home, and my car. Meaning I don’t have to run away and give up my car when a knife is pulled on me. My car is my well being, I have to be able to get to work. And if my car is stolen and found. I then have to wait to get it out of police impound. I don’t think crimanls should have that kind of control over anyone. Control comes with fear. I shouldn’t have to fear getting gas at night. I also don’t think something so serious, as a deffense law should have that many holes in it either. FL law is so confussing it gives Asshole procucours the control to twist trils, and blow our civil right to a FAIR trial right out the window. It’s makes me sad for you, how you can talk about men loosen their lives with no compassion. It sounded like you were bored typing that. It sounds like your doing a great job “keeping the scumbags in check.” Maybe you should try working on the one in the mirror?

      • Sig says:

        Ugh. Can’t read this even if I wanted to. Learn English before you dole advice.

        • Andy O says:

          I like what GO.UNC is saying. His grammar is all fucked up but he makes perfect sense. I don’t give a shit what the law states, Im going to defend myself and my family. Its my human nature and my duty as a father and husband to get back home every night safe because my family expects me to. I will gladly do time for my family. My instructor demonstrated that it only takes mere seconds for another person to catch you off guard and anything can be used against you as a weapon. Im a small dude and I grew up in the city and can probably fend-off most attacks but Im still limited and short and theres a lot of big ass dudes out to do harm. The key is to NOT be the aggressor and to make sure HE is not running away from you before you decide to use deadly force. Close hand-2-hand combat scenarios are real and will alter your perception and train of thought. We’re by instinct going to try to survive… Remain alert, peace.

          • Pauly says:

            Please do not get caught in the “he’s a big dude, I’m a small dude” none sense. I am a 6 ft. 200 lb r and because of my years of extensive mixed martial arts,( really meaning have a good stand up close and fast hard hits to vital area, then if need be, throw the big dude off balance and hit quickly stomp his face so that his back head hits the hard ground, knocking him out, then flee or call police. Know practice grading your chin, hands up with balled fists, move a little, never swing wide to punch, jab with leading hand followed by 2 big knockouts to the chin. He will go down. I did it like that 100s of times. Faintx2 strike, fentex1 strike, also have strong grappling skills. Been in the UFC thing years before anyone new what UFC was. Listen to me.your size with skills can heavily damage much bigger/ stronger opponent. Learn both stand up and ground game and don’t be afraid to take a punch, they’re all not bad as it looks.oh and use tricks, always trick your opponent, talk nonsense or ask a question right before you strike, it blows their minds. I know! QIX 34-11 woodbridge,NJ GO JUDOKAI Sensei Garbarek, love you guys!

  4. Alexander Moore says:

    In the state of North Carolina does a person has the right to use deadly force if an intruder breaks into your home to do bodily harm?

  5. Vernice Sinclair Sr says:

    What does the new law say about opening a persons screen or storm door? If they are inside and don’t know who’s outside opening said door can they shoot through the closed solid door injuring or even killing the person on the outside.

  6. Lucas Nelson says:

    What if someone enters the home only to retreat to the home owners property upon seeing a armed and angry homeowner can deadly force still be taking due to the fact the burglar was in the home moments earlier and may still be a threat to the safety of those inside?

  7. Harrison says:

    NO – If they have retreated, they are no longer an imminent threat to your life or property unless they have a weapon of their own and are pointing it at you or someone else.

  8. Kenneth says:

    Amen to that, Look at what happen to Britan; they took all leagle firearms away from law abiding citizens and the street cops now the criminals are the majority that are armed. So it accomplished nothing striping the regular citizen of his weapon, and the right for that law abideing citizen to protect himself or herself and his or her family.

  9. DENISE RUTH says:

    wITH THE NEW LAW IN THE STATE OF N.C. IF YOU RETRIEVED TO A CAR AND A PERSON IS COMING AFTER U TO HURT YOU AND THAT PERSON OPEDED THE DOOR IN WHICH YOU WAS SITTING. dO YOU HAVE THE RIGHT TO DEFEND YOUR SELF WITH DEADLY FORCE?

  10. GO.UNC says:

    Shot in the back? illegal right?

  11. GO.UNC says:

    When carrying… Is it better to put the gun on the dash or in the seat?

    • GO.UNC says:

      When being pulled over? “”

    • Rattlerjake says:

      If you have conceal carry, you don’t have to leave it in plain sight. If you open carry, It doesn’t matter as long as it is in plain sight. Mine is always on the seat. If you get pulled over, it is your responsibility to notify the cop that you have a weapon with you.

  12. caryred says:

    What if the person is armed, communicating threats & attempting to kick the door in? Can you shoot him before he enters?

  13. Rattlerjake says:

    If you are “in fear for your life” you have a right to shoot, depending on the state you are in (NY and Cal. gun laws are very strict), especially if the intruder is armed.

    • Paul petersen says:

      Wrong! What then constitutes”fear for your life”? That is an opinion, you must go on facts in order to use deadly force. If I happen to look at you and make an angry face at you and you suddenly fear for your life, you think you have the right to shoot me? Wrong! Emotions do not allow for someone to use deadly force, remember that, or else you will have plenty of time to remember it sitting in prison because you think you can shoot someone because you were scared! When faced with a situation, use this rule of thumb. You will know if you need to use deadly force if you know that if you do not, you will with out a doubt get killed or get great bodily injury, or get raped, or you are stopping that to a third person, saving someone else. Also remember to STOP when the attack has stopped, do not keep using whatever means of defense it is be it fists, sticks, or a pistol. If you go to court, you say “I stopped, when the attacker stopped”. Think about the rule of imminent death, rape, or great bodily injury!and never, ever, ever use defense stating that you did so because of some emotion, leave the “fear for your life ” thing out of it. If anything, you want to say that at the time, you were clear thinking, not mad, not angry, no emotions, it is understandable to be scared for your life, but do not say that is why you used force. You say you used force to stop the attack, because it was imminent,meaning that there was hardly no time whatsoever for you to be able to flee or make any other motion other than to defend yourself or that of a third person in order to survive and prevent imminent death, great bodily injury, or rape! Very important to start thinking in those terms. LEAVE THE EMOTIONS OUT OF IT!!!

      • mike says:

        you are wrong about the fearing for your life. you can use that you feared for your life but it has to be reasonable. like someone threatened to kill or hurt you, then started to walk towards you with a bat or some other weapon. you reasonably feared for your life and shot them before they had a chance to attack you is self defense. so emotions do and will always play a role in self defense, just has to be reasonable

        • Pauly says:

          WRONG AGAIN! Leave emotions out of it. You need to go on fact. When they cross examine you in court they want to see if you shot the person because you were scarred and did not need to shoot. Use the facts, 1 he threatened me,2 he started to approach,3 I warned him to stop and he did not, 4 I drew and fired my weapon to stop his attack as long as he was close Enough within 21 feet. That is the nc law and you will find out the hard way when you start talkin about how scarred you were. You don’t even need to be scarred to use deadly force. You can have a plain look on your face or even laugh, fact is, he’s coming at you to do imminent threat. They ask you your feelings to try and submarine your story, prosecutor will try to get you that way,or defense. Stay strong and use no emotion when you fired at the assailant. Do your CREDIBLE research. And don’t ask young rookies nor old fart cops, correspond with criminal lawyers or someone credible.

  14. DonnaMP says:

    Have a friend who’s a single mom, 2 kids at home thats having a problem with a ‘prowler’ a couple times a week for a month now. He comes thru the woods on foot, beats on her doors and windows, shines a flashlight thru her windows. Rifles thru a storage cabinet on her porch, etc. Every time it happens, she calls the cops and they come when they get around to it. Finally after 5 times in two weeks of being called they told her last night to relax and calm down that it was just a prowler and obviously didn’t intend to harm her. Does she have ANY recourse at all? The cops told her she can’t do a single thing even if they take everything she has outside and steal her car.

  15. sylvia nunez says:

    my brothers baby mother invited me into her home on christmas to discuss a issuse about the kids she then assaulted me and her friend helped her, she had me in a choke hold and the only way that i could release myself was to bite her arm none the less i had to go to the er for a concussion. my problem is why was i charged with trespassing and simple assualt but her friend and her wasnt charged with anything. this happened in the state of north carolina. please help i need advice on what to do.

    • crystal farrington says:

      Sylvia
      That is a very similiar situation somewhat to what iam going thru I have a warrant for my arrest for a simple assault for getting in the middle of a fight and puting the girl in a choke hold to get her off my friend this happened on my property and the girl was armed with a knife ..yet I had no right to defend myself on my own property..I don’t get it either ..
      Asheboro,nc
      Someone email if they do understand it… clynn0201@gmail.com

  16. haley says:

    I have a serious question that I feel you can help with. If someone is in an argument with another person, And you see that person reach down for their gun And you also have a gun. If you see them pull their weapon out And you are scared so you pull yours out and you pull the trigger, what might happen?!? My boyfriend was in that situation he is in jail right now waiting for his court date. And we are all scared of whats gonna happen.. can you tell me what might happen? Is he gonna be gone for a long time…

  17. Edward Cambria says:

    I am confused with N.C. laws or eregulations regarding carrying a Taser. It is not a weapon and after quite a few inquiries the opinion is carrying one open or concealed is a felony. I find this rather disturbing due to law enforcements rejection toward using non- lethal force to protect yourself from dirt bags attacking you on your bicycle to do bodily harm, usually with a gun, and robbing you. Any insight on carrying and using a Taser, which is not a weapon, and should not be regulated, would be greatly appreciated

    • Christian says:

      Look i can turn the samsung galaxy tab 2 that im using to type this right now with as a weapon. Do you even know what a taser does to people. If not why dont you use it on yourself to see what it does. Also if you’re riding a bike at night, why would you even ride slow enough that some random person just decides that they want to stop you and take your bike? When I used to ride my bike at night, if someone even thought about taking my bike while I was on it 1 of 2 things would have happened. (1) They can’t even catch me at that moment. (2) They would have gotten ran tf over causing them to be in a worse off situation than me.

  18. Charles says:

    Most NC laws where made at the turn of the century. Also they come from the standpoint of with in reason that the person is a law abiding citizen, an innocent one defending one’s self against the bad guy/gal.
    But you got to take ego out of it, to understand it.
    Its all based on reason.
    Like for open carry hand guns on your hip, where everyone can see.
    I don’t think to many would challenge you with a gun on your hip.
    I carry my gun open carry at night, walking home from work.
    Ran into two situations in the past where because of the open carried weapon. (That I did not need to ever pull out, it was seen.) The situation was resolved. I am known for walking down town with a gun on my hip. Police even want me to buy their guns, or trade. No ego about it, more protesting my right to bare, target practice hobbies, and then self defense.
    But, self defense goes along way before you ever need to use a gun for self defense. Sometimes just don’t go to places you fear you might need to use self defense.
    Also don’t get brain washed by gun sellers trying to sell you that 50 round clip for that tiny Saturday night special, that was meant to carry only 6 rounds, because you might get attacked by Rambo in the trailer park. How much money they make off that clip, I wonder?
    Kinda funny if you watch youtube gun shop reviews on youtube, they really got them 50 round clips for a tiny gun.
    But, within reason, NC laws are mostly meant to protect life, and to give good reason why someone should not attack you, because they can see that gun on your hip, fair warning. Cause if your a grown adult with good eyesight, and you attack another adult, with a gun, on their hip, and you seen this gun. You may have just fulfilled God’s will for your life.
    Laws are made tight by some states to make sure that people learn them, and make ways to obey them, so if anything goes wrong, they know who failed by the law. Who didn’t read the law, they just got a gun to shoot somebody. Who obeys the law, knowing when to shoot. Then the people that will break any law.
    NC does not want to be like Texas, if anyone makes off with your money in Texas, from a escort that is illegal in Texas, to a guy cutting your grass without finishing. They are considered in theft of your money, and you can shoot them while they are walking away. Do you want self defense, or the ultimate write up for not finishing a job.
    I love NC laws.
    Just like obeying rules at my job, I follow the rules for having a gun on me for reasonable self defense. Its a policy work around it, find clever ways to live with it
    . But, in the end, I would not want to take anyone’s life, and even a snake hisses a warning. Oh also snakes cannot hear the warning they give you before they defend themselves.

  19. bob says:

    someone might steal your gun if its too nice with another gun, or with a baseball bat from behind.

  20. koorayoung says:

    If a mother and her child came to my house to get away from the child’s father whom is abusive and he follows them to my property and tied to cause serious harm to the mother could I shoot him in self defense? Note I live in NC and I have my wife and 6 month old son that lives with me as well.

  21. What about defensive damage to intruder’s property? Concrete contractor excavated and set forms to pour a driveway extending on to my private property at the beach. Discovered on a Sunday. Neither contractor or neighbor could be contacted, so I cut a board of the concrete form at my property line and placed back on neighbor’s property. Sent email to neighbor with complaint. Neighbor apologized, but contractor complained I damaged his property.

    Justified?

  22. Mike says:

    Mr Rubin,

    Other than this law, what has changed since your 1996 book on NC self defense? Do you have any other NC self defense books for sell since 1996. If not do you recommend any? Do you know of any literature that I can but that has case examples of sef defense in NC since 1996?

  23. logan says:

    So is there a law that Stats that if someone is hitting a person that person can’t do anything to defend themmselfs if its not on there property and not at work or in there car. So how can someone defend them selfs when there not at all three places work home or car? Is the person sopposed to just let it happen? Because if they fight back that person goes to jail and the one that started it stays home. I a lost so please give me some info about it

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