Criminal Defense Attorneys in North and South Carolina

HABLAMOS ESPAÑOL

Criminal Defense Attorneys in North and South Carolina

HABLAMOS ESPAÑOL

10.0Gael Gilles
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The National Trial Lawyers

Gilles Law, PLLC

Serious Representation Under Serious Circumstances

Self-Defense in North Carolina

Self-Defense and Defense of Othersself-defense

Self-defense and defense of others are technically two separate defenses. For the purposes of this blog, we will be examining both of these defenses together, as the difference in the two defenses is simply exactly what the name suggests – one deals with defending yourself from bodily harm, the other one deals with defending another person from bodily harm. Generally speaking, the same rules apply to both.

Affirmative Defense

Self-defense and defense of others are what is known as “affirmative defenses”. That means that a person is not denying that they committed the alleged offense. Rather, they are admitting that they carried out the act but that it was justified, thus the act was not criminal. Self defense is one of the most common affirmative defenses. It is often seen in the context of assault charges but can also be used as a defense for other criminal charges, such as murder.

Burden of Proof for Self-Defense

When using self-defense as a defense, the burden of proof is on the defendant. Remember that generally, the burden remains with the state in a criminal trial. However, when using an affirmative defense (such as self-defense) then defendant carries that burden of proof.

When can a person engage in self-defense/defense of others?

In a nutshell, a person has a right to use force in order to protect themselves or others against bodily harm. See below for exceptions.

Note that a person cannot generally continue to use force against another if that person has retreated because there is no longer force/threat of force/risk of bodily injury.

How much force can you use?

Generally speaking, you must use no more force than is reasonably necessary. For example, you cannot respond to a slap in the face with a gunshot. Which brings us to our next topic – the use of deadly force.

Deadly Force

When may a person be justified in the use of deadly force in NC? Typically, a person may use deadly force in response to deadly force. Further, a person may use deadly force to protect themselves or others if the person reasonably believes such force is necessary to prevent imminent death or great bodily harm. There are exceptions to this. A person may NOT use deadly force if any of the following apply

  1. Certain situations in which the subject of the deadly force is a law enforcement officer (for example, on duty and acting lawfully)
  2. The person using the deadly force is committing, attempting to commit a felony, or fleeing after committing a felony
  3. The person using the deadly force was the initial aggressor AND failed to withdraw or attempt to withdraw from the altercation prior to exercising deadly force
    • An initial aggressor CAN use deadly force if he attempted to withdraw from the fight but the opposing party continued to advance on the initial aggressor

Use of deadly force on trespassers  

Everybody seems to want to know if they are allowed to use deadly force on trespassers. The answer is, only if the person reasonably fears great bodily harm or death. This is not really any different than the rules governing self-defense in any other context. One of the main things to consider is that a person who uses deadly force on an intruder may have a much easier time showing that it was reasonable to fear for one’s life.

Duty to Retreat

There is no duty to retreat in North Carolina. This is sometimes referred to as a “stand your ground” law. In a nutshell, this means that a person is not obligated to attempt to retreat before using deadly force in certain circumstances. This means that, generally, a person has no duty to retreat in a place in which that person is lawfully present in the following circumstances:

  1. May use deadly force without duty to retreat if person reasonably believe that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another; and
  2. May defend themselves with deadly force in their homes, vehicles and workplace without the “duty to retreat.”

**This doesn’t mean you can kill someone who is retreating (unless of course there is true reason to believe they still pose an immediate risk to your life) **

Please note that this blog is intended to be used for informational purposes only. It is not meant to provide legal advice and should not be read in lieu of speaking with a criminal defense lawyer. If you have been charged with a crime in North Carolina or South Carolina, contact a criminal defense attorney to discuss your options and possible defenses.

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