Were you charged with a crime when you were only defending yourself against harm? If you have been charged with committing a criminal offense involving the use of force against another person in the State of Nebraska, and you believe your actions were justified, you may be able to claim that your actions constituted the affirmative defense of self-defense.
What comes to mind when you think of self-defense? The legal concept of self-defense is something that is often portrayed inaccurately in movies and in books. Consequently, most people only have a vague idea of what actions qualify as self-defense. They don’t understand when self-defense can be used as a defense in a criminal prosecution. Because the viability of the use of self-defense as a legal defense is based on the unique set of facts and circumstances of the case, it is imperative that you consult with an experienced Nebraska criminal defense attorney to discuss your specific case. To give you a broad understanding of the concept of self-defense as a legal defense, however, keep reading. Here, an Omaha defense attorney explains some self-defense basics.
What Is an Affirmative Defense?
In the United States criminal justice system, an accused is presumed innocent until proven guilty beyond a reasonable doubt. This is one of the basic tenets of the criminal justice system. As such, the burden is on the State, through the prosecuting attorney, to prove a defendant guilty. This means that a defendant is not required to prove anything in a criminal prosecution. There is one exception to the general rule placing the burden on the prosecuting attorney in a criminal prosecution. If the defendant claims an affirmative defense, that effectively shifts the burden to the defendant to prove that affirmative defense. An affirmative defense asserts that
- You engaged in the conduct alleged in the statute, but
- You were legally justified in doing so.
In the case of the affirmative defense of self-defense, you are admitting that you engaged in an act of violence against the alleged victim. However, you were legally justified in using that violence based on your claim of self-defense.
What Constitutes Self-Defense in Nebraska?
Each individual state has its own definition of self-defense. In Nebraska, the Nebraska Revised Statute Section 28-1409 governs the use of self-defense, stating, in pertinent part, as follows:
“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.”
Defense of Others
Nebraska self-defense laws also allow the use of force to protect another person. Defense on behalf of another person applies when:
- The other person would be justified using force under the above statute, and
- You believe the use of force is necessary to protect the person.
Let’s clarify this confusing concept with an example. Imagine that Person A is walking down a busy Omaha street, looking for some quick cash. He tries to grab a little old lady’s purse, but she resists. Person A rears back his fist, apparently about to hit the elderly woman. You, being a defender of little old ladies, punch Person A in the face before he can hit the lady.
If you are charged with battery, you can use the affirmative defense of defense of others. You weren’t defending yourself, but you thought punching Person A was necessary to defend the lady. The lady would have been justified in her use of force to defend herself from Person A, so your action is justified as well.
Use of Deadly Force
The use of deadly force in Nebraska is also allowable if you believe you are protecting yourself or someone else from death, serious injury, rape, or kidnapping. Deadly force cannot be used, however, if you have the option to retreat to avoid the situation unless it is your home or place of work and you were not the first aggressor.
In addition, self-defense laws in Nebraska provide that any time self-defense is used, the amount of force used must be proportionate and reasonable. For example, let’s say someone pushes you and does nothing else, but you respond by stabbing the person ten times. You probably cannot claim self-defense.
Interestingly though, a credible threat can be sufficient to justify the use of force. Someone using offensive words won’t suffice to sustain a claim of self-defense when force is used. However, if those words constitute a threat, and you believed the threat to be immediate, credible, and serious, you might be justified in the use of force to prevent the threat from being carried out.
For instance, imagine that someone yelled a derogatory name at you but did nothing else. You can’t shoot the person and claim self-defense. However, if a person with a scowling face shouts, “I’m gonna kill you!” and begins moving toward you, using force in self-defense might be appropriate. In that scenario, the threat of murder seemed immediate, credible, and serious.
As you can see, the use of force, and the subsequent claim of self-defense, are all extremely fact specific. Numerous factors will be considered when deciding whether the use of force was justified based on the affirmative defense of self-defense. If you believe that your use of force was justified, however, you owe it to yourself to discuss self-defense as a possible defense with an experienced Omaha defense attorney.
Self-Defense FAQs
Self-defense in Nebraska can be a complicated topic to understand. Here are some frequent questions we hear about Nebraska self-defense laws.
When Can You Use Self-Defense?
You can use self-defense if you believed the use of force was necessary to protect yourself or another person from an immediate threat of harm.
What Is the Duty to Retreat?
The duty to retreat means that you cannot harm an attacker with force if it is possible for you to retreat. This duty may present itself in the middle of a use of forceful self-defense. For instance, if you used self-defense to punch someone until they were unable to present a further threat, you must stop punching them once they are incapacitated. When the threat diminishes, you must retreat to a safe place and call the police.
The duty to retreat does not apply if you are attacked in your own home.
Can You Use Self-Defense on Private Property?
If a private property owner is using force to remove you from the property, you cannot retaliate and claim self-defense. For instance, if you are loitering in Person A’s yard and Person A begins pushing you away, you cannot strike Person A and claim self-defense. Person A is using force to protect private property. You do not have a right to be on Person A’s property, so you cannot use self-defense as an affirmative defense.
Can You Use Self-Defense Against a Police Officer?
You cannot use self-defense against a police officer. If you believe that you are being unfairly arrested, contact an attorney immediately. Your attorney can request to speak to a police supervisor or file legal actions to protest against your illegal arrest.
What to Do If You Are Charged
If you are charged with a crime related to self-defense—such as battery, manslaughter, or murder—you need to call a criminal defense attorney immediately. Until you hire an attorney, you should know these things.
Don’t Resist Arrest
Self-defense is not a valid defense to assaulting a police officer. If you resist arrest, you could increase legal penalties or put your life in danger. A skilled criminal defense attorney can work within the criminal justice system to clear your name.
Don’t Speak to the Police
While you don’t want to physically resist police custody, you can ignore their questions. In fact, it’s your Constitutional right, spelled out in the Miranda warning, “You have the right to remain silent.” Do not speak to police without your attorney present. That’s the second part of the Miranda warning: “You have the right to an attorney.” Once you request an attorney, the police officers should cease questioning you until your attorney joins you.
Don’t Talk About Your Charge in Jail
If you are held in jail awaiting arraignment, do not speak about your charge. This means you shouldn’t speak to police without your attorney present, but you also should stay quiet around cellmates, jailers, and people you talk to on the phone. Even your innocent words can be misinterpreted. Talk about the weather, talk about sports, but don’t talk about your charge.
Contact an Attorney Immediately
You must contact an attorney as soon as possible. If you cannot afford an attorney, the court will appoint one for you. However, you should hire a private attorney if at all possible. In Nebraska, public defenders are often overworked and underpaid. This article points out that nationwide “only 27% of county-based public defender offices and 21% of state-based public defender offices [are] able to handle their caseloads while attorneys work at recommended levels.” If you can hire a criminal defense attorney, you must do so immediately. Your freedom is at stake.
Contact an Omaha Defense Attorney at Petersen Law Office
If you have been charged with a crime involving the use of force, and you believe that force was justified on the basis of a claim of self-defense, consult with an experienced Omaha defense attorney. You need a knowledgeable self-defense Nebraska attorney to clear your name and protect your freedom.
Attorney Thomas Petersen has helped more than 6,000 clients defend their rights. If you have been wrongfully charged in Nebraska, contact Thomas Petersen at Petersen Criminal Defense Law 24 hours a day at 402-235-4279 to discuss your case.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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