New York Penal Law Section 35.15 is the state's foundational self-defense statute. It governs when and how a person may lawfully use physical force to defend themselves or another individual from unlawful physical force.[1] The statute draws a critical distinction between ordinary physical force and deadly physical force, imposing significantly stricter conditions on the use of lethal force.
Subdivision 1: Use of Non-Deadly Physical Force
Under subdivision 1, a person may use physical force upon another person when, and to the extent that, he or she reasonably believes such force to be necessary to defend himself, herself, or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person.[1] This general authorization applies to non-deadly force and does not require the defender to retreat before using it.
However, even ordinary physical force is subject to two important limitations. A person may not use physical force if (a) the latter person's conduct was provoked by the actor with the intent to cause physical injury to another person, or (b) the actor was the initial aggressor.[2] An initial aggressor is defined as the person who first attacks or threatens to attack, meaning the first person who uses or threatens the imminent use of offensive physical force. Merely arguing, using abusive language, or calling someone names does not make a person the initial aggressor.[3]
Subdivision 2: Use of Deadly Physical Force
Subdivision 2 imposes much stricter requirements on the use of deadly physical force. A person may not use deadly force upon another person under the circumstances described in subdivision 1 unless one of the following conditions is met:[1]
- The actor reasonably believes the other person is using or about to use deadly physical force. Even in this situation, the actor must first retreat if he or she knows that complete safety can be achieved by retreating, except when the actor is in his or her own dwelling and is not the initial aggressor.
- The actor reasonably believes the other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act, or robbery.
- The actor reasonably believes the other person is committing or attempting to commit a burglary, and the circumstances authorize deadly force under PL 35.20(3).
The Duty to Retreat
New York is a "duty to retreat" state. Subdivision 2(a) of PL 35.15 requires that before using deadly physical force, a person must retreat if he or she knows that retreat can be accomplished with complete safety.[1] This duty applies in all locations except the actor's own dwelling, provided the actor is not the initial aggressor. Police officers, peace officers, and persons assisting them at their direction are also exempt from the duty to retreat.[4]
The Initial Aggressor Exception
An initial aggressor may regain the right to use self-defense if he or she has withdrawn from the encounter and effectively communicated that withdrawal to the other person, but the other person nevertheless persists in continuing the incident by the use or threatened imminent use of unlawful physical force.[2]
Reasonableness Standard
Both the belief that force is necessary and the belief regarding the type of threat faced must be objectively reasonable. New York courts evaluate the reasonableness of the actor's belief based on the circumstances as they appeared to the actor at the time, including the relative size and strength of the parties, whether weapons were involved, and any prior history between the parties.[5] A purely subjective belief, no matter how genuinely held, is insufficient if a reasonable person in the same circumstances would not have shared that belief.