Have you been charged with assault in the State of Nebraska? If so, do you believe your conduct was necessary to protect yourself from harm? If so, you may be able to claim “self-defense” as your defense. Unfortunately, this is not as simple as it sounds. Like most states, the State of Nebraska does have a self-defense statute. However, determining the facts and circumstances to which the defense might apply can be very tricky. Furthermore, the level of force you used is an important factor in determining whether or not you can escape a conviction by claiming self-defense. In short, claiming self-defense to an assault charge is heavily dependent on the unique facts and circumstances surrounding the encounter which led to the charges being filed against you. As such, it is imperative you consult with a lawyer to determine if you have a valid self-defense claim.
How Is Assault Defined in Nebraska?
In the State of Nebraska you could be charged with assault in the first, second, or third degree. Nebraska Revised Statutes §28-308 through 28-310 govern assault, defining the different degrees as follows:
- Assault in the first degree — A person commits the offense of assault in the first degree if he or she intentionally or knowingly causes serious bodily injury to another person. Assault in the first degree is a Class II felony.
- Assault in the second degree — A person commits the offense of assault in the second degree as a Class IIA felony if he or she:
o Intentionally or knowingly causes bodily injury to another person with a dangerous instrument;
o Recklessly causes serious bodily injury to another person with a dangerous instrument; or
o Unlawfully strikes or wounds another (i) while legally confined in a jail or an adult correctional or penal institution, (ii) while otherwise in legal custody of the Department of Correctional Services, or (iii) while committed as a dangerous sex offender under the Sex Offender Commitment Act.
- Assault in the third degree — A person commits the offense of assault in the third degree as a Class I misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it shall be a Class II misdemeanor if he:
o Intentionally, knowingly, or recklessly causes bodily injury to another person; or
o Threatens another in a menacing manner.
Self-Defense in Nebraska
Nebraska recognizes the affirmative defense of self-defense. An affirmative defense means it is a defense the defendant must prove applies in the case. Remember the State has the burden of proving a defendant guilty beyond a reasonable doubt. However, if the defendant asserts an affirmative defense, the burden then switches to the defendant to prove that defense applies. Nebraska Revised Statute §28-1409 sets forth the circumstances under which an individual is allowed to use force, specifically stating:
“the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.”
The statute goes on to list a number of exceptions, meaning situations where self-defense cannot be used as a defense, including:
- To resist arrest
- To resists force used by a property owner to protect his property
- You provoked the force being used against you
- You could safely retreat or give up a thing to a person asserting a claim to it
To further complicate matters, there are exceptions within the exceptions and additional caveats that may or may not apply in your particular case.
By now you should be able to see why it is so important that you allow a lawyer to review the facts and circumstances of your case to determine whether you will be able to assert the defense of self-defense.
If you have been charged with assault in the State of Nebraska, contact the lawyers at Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced defense attorney.