Were you recently arrested and charged with assault – or with an even more serious crime? If so, and you were only defending yourself, you may be able to claim self-defense as your defense strategy. It is not, however, as simple as just saying “He started it!” As an Omaha criminal defense attorney at Petersen Law Office explains, you must claim self-defense as your official defense and then you must prove that the facts and circumstances justify a claim of self-defense
If you plan to claim self-defense, you need to understand the basic premise behind the concept of “affirmative defenses because self-defense is an “affirmative defense.” An affirmative defense is one in which you admit that you did, indeed, engage in the conduct at issue; however, you had a legally justifiable reason for doing so. Take, for example, the offense of assault. In the State of Nebraska, you commit assault in the third degree if you “Intentionally, knowingly, or recklessly causes bodily injury to another person.” If you claim the affirmative defense of self-defense, you are effectively saying that you did “Intentionally, knowingly, or recklessly causes bodily injury to another person” BUT you had a good reason for doing so that the law also finds acceptable. When you assert an affirmative defense, it also shifts the burden of proof. When the State charges you with a crime, the State bears the burden of proving you committed that crime. Asserting an affirmative defense, however, shifts the burden back to you to prove that defense.
Nebraska Law — Self-Defense
Nebraska Revised Statute Section 28-1409 governs the use of self-defense in the State of Nebraska, reading 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.”
Can I Claim Self-Defense?
Only an experienced Nebraska criminal defense attorney can evaluate the specific details and facts of your case and tell if self-defense is a viable defense strategy for you; however, gaining a better understanding of what the statute means can only help you. In essence, Nebraska’s self-defense statute means that you may be able to use self-defense as a defense if you can prove that you believed that you would be subjected to force or violence, and you committed an act of violence out of necessity to protect yourself. You must feel threatened at the moment. For instance, if someone hits you, but then stops, and indicates that the threat is over, then hitting back would not be legally justifiable self-defense. Specifically, you must have a reasonable and good faith belief that what you were doing was necessary, and the force used must be justified under the circumstances. It is not enough that someone said words you found offensive, although a credible threat could be enough to justify protecting yourself. For instance, if someone verbally threatens to harm you or someone else, self-defense might be warranted if the threat is found to be immediate and real. You are not necessarily required to wait until there is actual violence; however, words you find offensive are not enough.
There are, of course, limits to the use of self-defense as a defense strategy. First and foremost, courts have long agreed that the defense used should be equal to the situation. In addition, although other states allow the use of self-defense in defense of property, in the State of Nebraska you cannot use self-defense to defend property nor can you claim self-defense when the other person is occupying or possessing property. Moreover, if a police officer is arresting you, there is no self-defense claim, even if the arrest is not lawful. Finally, you cannot claim self-defense if you are the one who provoked the other person.
Contact an Omaha Criminal Defense Attorney at Petersen Law Office
If you have been charged with a criminal offense in Nebraska, and you believe that self-defense is a viable defense for your alleged crime, consult with an experienced Omaha criminal defense attorney at Petersen Law Office as soon as possible to discuss your legal options. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case.