Dispense Self-Defense Condensed

Claims of self-defense often arises in cases involving assault, battery, or homicide. In fact, many of the jury trials that I’ve handled involved claims of self-defense. When can you use it? When can you not? Here’s a general overview of how it works. In California, self-defense is a legal justification that allows an individual to use force to protect themselves (or others) from harm or imminent danger. Below are some key principles.

Reasonableness: The person claiming self-defense must reasonably believe they are in imminent danger of harm. The belief must be reasonable under the circumstances. Who judges what is reasonable? A trier of fact, of course.

Imminence: Imminent danger means that the threat of harm is immediate, not a future or distant threat. Prospective fear doesn’t cut it. But what about self-defense in cases involving intimate partner or gang violence? If self-defense is being claimed, expert testimony can help explain why a threat of harm appeared imminent to a defendant but remote or prospective to an ordinary person.

Proportionality: The amount of force used must be proportional to the threat faced. An example that I use in class is if someone is coming to pinch you on St. Patrick’s Day because you didn’t wear green, responding with deadly force (e.g., shooting them) would not proportional. You could probably get away with smacking their hand away. Anything beyond that would not be proportional.

Retreat: Some people believe that a defendant facing an imminent threat has a duty to retreat if they can do so safely. Not so! A defendant in California is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger has passed. This is so even if safety could have been achieved by retreating.

Homicide vs. Non-Homicide: The difference between self-defense in a homicide case and self-defense in a non-homicide case lies in the type of threat the defendant believed they faced. Homicide self-defense generally requires a reasonable belief in imminent danger of death or great bodily harm, whereas self-defense in a non-homicide case (e.g., assault) requires a reasonable fear of any imminent bodily injury, or even unlawful touching.

Imperfect Self-Defense: This applies in homicide cases and reduces what would otherwise be murder to a lesser offense of voluntary manslaughter. See People v. Booker (2011) 51 Cal.4th 141, 182. I explain imperfect self-defense as a defendant having a subjectively reasonable belief in the need to kill, but that belief is objectively unreasonable. Not the other way around. That would be silly. Just silly.

Necessity: And no man, by his own lawless acts, can create a necessity for acting in self-defense, and thereupon, killing the person with whom he seeks the difficulty, interpose the plea of self-defense. The plea of necessity is a shield for those only who are without fault in occasioning it and acting under it. Disclaimer: this isn’t always true but I won’t get into it here.

There it is. Self-defense condensed. Make sense?