The Use of Force in Self-Defense (Part 5)

The appellate panel continued in relevant part: The Bonano Court remarked, “this is, indeed, the majority view, and yet one may question its soundness.” Ibid. The Court went on to stress that “‘curtilage’ is not a term that can in all cases be precisely defined,” and then posed the rhetorical question, “might not the better rule be that a duty to retreat should exist except as to the dwelling house itself, defined, as stated above, to include a porch or other similar appurtenance?” Ibid. The Court concluded, “this case does not raise the issue and we leave its resolution to another day.” Ibid. The Court nonetheless made clear, “at this time, however, we limit our acceptance of this castle rule to those cases where the defendant is actually in his dwelling house. A porch or other similar physical appurtenance is deemed to come within this concept.” Ibid. (emphasis added).

We share the Bonano Court’s concern that the term “curtilage” is not well-defined. Grafting the amorphous and potentially complex curtilage concept into the definition of the term dwelling for purposes of N.J.S.A. 2C:3-4(b)(2)(b)(i), therefore, might introduce uncertainty and ambiguity to the penal code. For example, if we accepted the broad interpretation of dwelling that defendant proposes, would the exception to the general duty to retreat apply to the entire length of a driveway, extending to the apron that abuts a public sidewalk or street? Would it extend to the entire area of a back or side yard, reaching to and terminating at the unmarked boundary of a neighbor’s yard? Or is there an invisible line on a driveway or backyard–fixed somewhere between the point closest to the house and the outer boundaries of the property line–where the circumstances in which deadly force is authorized abruptly changes? We leave that type of line-drawing to the Legislature and decline to interpret this use-of-force provision of the penal code in a way that might render it impermissibly vague.

A counter-argument is that the term “curtilage” has been defined and applied for decades in the search and seizure context. With thousands of cases to draw from, we should be able to find a workable definition.