Judge Susswein then addressed the issue of whether a “dwelling” can include an outdoor area for self-defense and retreat purposes. The Court held in relevant part: Defendant urges us to interpret the word dwelling more expansively to encompass any part of the so-called “curtilage” of a house. Curtilage is a Fourth Amendment concept that defines the geographic scope of the heightened privacy protections that are associated with a home. Those constitutional privacy protections may in certain circumstances be extended outside a house to walkways, driveways, and porches.
We decline defendant’s invitation to rely on Fourth Amendment principles to expand the scope of the term dwelling for purposes of authorizing deadly force pursuant to N.J.S.A. 2C:3-4(b)(2)(b)(i). The Fourth Amendment and its state constitutional counterpart–Article I, paragraph 7 of the New Jersey Constitution–serve a different purpose than the statutory framework that explains when a person is justified in using deadly force. The Fourth Amendment and Article I, paragraph 7, protect against liberty and privacy incursions by the government in the form of arrests, searches, and seizures. These constitutional provisions do not protect against intrusions by private actors. See State v. Navarro, (App. Div. 1998) (holding that the Fourth Amendment applies only to government actions and not to unreasonable searches conducted by a landlady). Ultimately, the scope of the dwelling exception to the general duty to retreat before employing deadly force is defined by statute, not by Fourth Amendment principles.
We find support for our conclusion that N.J.S.A. 2C:3-4(b)(2)(b)(i) does not extend throughout the curtilage of a home in Bonano. That pre-code case interpreted and applied the duty-to-retreat principles that are now codified in N.J.S.A. 2C:3-4(b)(2)(b)(i) and N.J.S.A. 2C:3-4(c). In Bonano, the Supreme Court examined the so-called “castle doctrine,” which is the common law exception to the general rule that a person must retreat when it is reasonably safe to do so before using deadly force for self-protection or the protection of others. The Court in Bonano relied on our State’s predecessor general self-defense statute, and on common law principles exempting the general duty to retreat when using protective force in one’s own home. The Court quoted our then-recent observation in State v. Provoid (App. Div. 1970), that “the majority of jurisdictions in this country have concluded the privilege of self-defense without retreat extends to anywhere within the ‘curtilage’ of a man’s or woman’s home.”
The Appellate Division’s narrow interpretation of what is often a firearms issue is consistent with New Jersey law. Our state has some of the most restrictive firearm laws in the country.
