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Chapter 4: Arrests:
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   Table Of Contents
      Chapter 4: Arrests:
         Use of Force:
            Reasonable Force
            Factors
            Examples
            Applicable Statutes
            Use of Deadly Force:
               Causing Death
               Deadly Force Defined
               Non-Criminal Homicides
               Applicable Statutes
               Limitations:
                  'Forcible and Atrocious' Crime
                  History
                  The Fourth Amendment
                  Forcible and Atrocious Crime, Defined
                  Burglary of a Residence
                  Self-Defense
                  Fleeing Felon
                  Transferred Intent
               Use of Deadly Force by Police Officers

Reasonable Force

Reasonable Force:  Only that amount of force that is reasonably necessary under the circumstances may be used to effect an arrest, prevent escape, or overcome resistance.  (Headwaters Forest Defense v. County of Humboldt (9th Cir. 2002) 276 F.3rd 1125.)

"The Fourth Amendment prohibition against unreasonable seizures permits law enforcement officers to use only such force to effect an arrest as is ‘objectively reasonable' under the circumstances."  (Emphasis added; Id., at p. 1198.)

"A police officer may use force, including blocking a vehicle and displaying his or her weapon, to accomplish an otherwise lawful stop or detention as long as the force used is reasonable under the circumstances to protect the officer or members of the public or to maintain the status quo."  (People v. McHugh (2004) 119 Cal.App.4th 202, 211.)

The use of force to effect an arrest is evaluated in light of the Fourth Amendment's prohibition on unreasonable seizures.  (Graham v. Connor (1989) 490 U.S. 386 [104 L.Ed.2nd 443].)

"(A)cts by which cruel and sadistic purpose to harm another would be manifest" may also be a violation of the Eighth Amendment's proscription on "cruel and unusual" punishment.  (Watts v. McKinney (9th Cir. 2005) 394 F.3rd 170; kicking a prisoner in the genitals.)

The reasonableness of the force used to effect a particular seizure is determined by a "careful balancing of ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interest at stake."  (Graham v. Connor, supra, at p. 396 [104 L.Ed.2nd at p. 455], quoting Tennessee v. Garner (1985) 471 U.S. 1, 8 [85 L.Ed.2nd 1, 7]; Jackson v. City of Bremerton (9th Cir. 2001) 268 F.3rd 646.)

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Factors

Factors to consider in determining the amount of force that may be used include:

  • The severity of the crime at issue;
  • Whether the suspect posed an immediate threat to the safety of the officers or others;
  • Whether the suspect was actively resisting arrest or attempting to evade arrest by flight; and
  • Any other exigent circumstances present at the time.

(Bell v. Wolfish (1979) 441 U.S. 520 [60 L.Ed.2nd 447]; Chew v. Gates (9th Cir. 1994) 27 F.3rd 1432, 1440-1441, fn. 5.)

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Examples

Examples:

Use of Pepper Spray or Other Chemical Irritants:

The use of pepper spray on non-violent demonstrators was determined to be excessive where there were less intrusive alternatives.  (Headwaters Forest Defense v. County of Humboldt (9th Cir. 2002) 276 F.3rd 1125.)

It has been held that squirting pepper spray randomly into a crowd of demonstrators where there was insufficient cause to believe the demonstrators posed an immediate threat to the safety of the officers or others might be excessive and expose the offending police officers to civil liability.  (Lamb v. Decatur (C.D.Ill. 1996) 947 F.Supp. 1261.)

However, the use of a "chemical irritant" against party-goers who are impeding a lawful arrest and fighting with law enforcement officers, particularly after a warning, was not improper, or excessive.  (Jackson v. City of Bremerton (9th Cir. 2001) 268 F.3rd 646, 651-653.)

The use of pepper spray on fighting prison inmates in a maximum security prison, in an attempt to stop the fight, was held to be reasonable, although the failure to provide medical attention to other inmates who might also have been affected by the pepper spray vapors, showing a "deliberate indifference" to their health, will subject correctional authorities to potential civil liability.  (Clement v. Gomez (9th Cir. 2002) 298 F.3rd 898.)

See also Forrester v. City of San Diego (9th Cir. 1994) 25 F.3rd 804; where the use of "pain compliance" to arrest passively resistant demonstrators was upheld as reasonable, in that it was used only after a warning, was not applied any more than necessary to gain compliance, and was something that could be ended instantaneously when the protestor submitted.

Use of "less-lethal" cloth-cased beanbag shot against an unarmed, mentally deranged suspect, particularly when not warned first, may be excessive.  (Deorle v. Rutherford (9th Cir. 2001) 242 F.3rd 1119.)

Pointing a gun at close range at an unarmed, unresisting suspect who is only being detained, is probably excessive, and could result in civil liability.  (Robinson v. Solano County (9th Cir. 2002) 278 F.3rd 1007.)

A SWAT team holding children at gunpoint after officers gained control of a situation is unreasonable, and could result in civil liability.  (Holland v. Harrington (10th Cir. 2001) 268 F.3rd 1179.)

The use of reasonable force in extracting blood, when done in a medically approved manner, is lawful.  (Ritschel v. City of Fountain Valley (2005) 137 Cal.App.4th 107; a misdemeanor case.)

See Tatum v. City and County of San Francisco (9th Cir. 2006) 441 F.3rd 1090, where the Ninth Circuit Court of Appeal meticulously discussed the issue of law enforcement's use of force:

When a court analyzes excessive force claims, the initial inquiry is whether the police officer's actions were objectively reasonable in light of the facts and circumstances confronting him.  A police officer had probable cause to arrest a suspect for being under the influence of a controlled substance or for disorderly conduct where the officer observed the suspect kicking the door to a police station for no apparent reason, the suspect disobeyed commands to stop, and when he was verbally unresponsive, perspiring heavily, and had bloodshot eyes.  Whether a particular use of force was objectively reasonable depends on several factors including the severity of the crime that prompted the use of force, the threat posed by a suspect to the police or to others, and whether the suspect was resisting arrest.  An arresting officer's use of a control hold on an arrestee in order to place him in handcuffs was objectively reasonable and thus did not support excessive force claim; the officer had probable cause to arrest, the arrestee was behaving erratically, and the arrestee spun away from the officer and continued to struggle after officer told him to calm down.  Detention of the arrestee after the arrest did not rise to the level of excessive force even though the officers positioned the arrestee on his stomach for approximately 90 seconds, then positioned him on his side, and failed to perform emergency resuscitation on the arrestee after the arrestee kicked and struggled so that the brief restraint on his stomach was necessary to protect the officers and the arrestee himself, the officers monitored the arrestee, and they called for an ambulance as soon as they noticed that arrestee was breathing heavily.  Just as the Fourth Amendment does not require a police officer to use the least intrusive method of arrest, neither does it require an officer to provide what hindsight reveals to be the most effective medical care for an arrested suspect. 

Five deputies holding down a resisting criminal defendant for the purpose of obtaining his fingerprints, in a courtroom (but out of the jury's presence), where there were found to be less violent alternatives to obtaining the same evidence, is force that "shocks the conscience" and a violation of the defendant's Fourteenth Amendment due process rights.  (People v. Herndon (2007) 149 Cal.App.4th 274; held to be "harmless error" in light of other evidence and because defendant created the situation causing the force to be used.)

See "Deadly Force," below.

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Applicable Statutes

Applicable Statutes:

P.C. § 692:  Lawful resistance to the commission of a public offense may be made:

1.                  By the party about to be injured;

2.                  By other parties.

See also CALCRIM, # 3470, "Self-Defense and Defense of Another."

P.C. § 693:  Party about to be injured; circumstances in which force is authorized:  By the party, in what cases and to what extent:

1.         To prevent an offense against his person, or his         family, or some member thereof.

2.         To prevent an illegal attempt by force to take or        injure property in his lawful possession.

See also CALCRIM, # 3470, "Self-Defense and Defense of Another."

P.C. § 694:     Other Parties; circumstances in which force is authorized:  Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense.

See also CALCRIM, # 3470, "Self-Defense and Defense of Another."

P.C. § 834a:  "If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest."

It is illegal to resist any arrest or detention by a peace officer, even if it is determined to be an illegal arrest or detention.  (Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321.)  The person illegally arrested or detained has a civil remedy against the offending officer(s).  (See 42 U.S.C. § 1983)

P.C. § 835:  "The person arrested may be subjected to such restraint as is reasonable for his arrest and detention."

P.C. § 835a:  "Any peace officer who has reasonable cause to believe a person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape, or to overcome resistance."

An officer is not required to desist in his or her efforts merely because the accused offers some resistance.  (People v. Hardwick (1928) 204 Cal. 582, 587.)

Use of excessive force by an officer gives the arrestee the right to use self-defense, and negates the element of "acting in the performance of his or her duties" for any potential charge where this element must be proved.  (E.g.; P.C. §§ 148(a), 243(b) & (c), and 245(c) & (d))

An officer who uses excessive force is subject to prosecution for a felony (P.C. § 149) and/or, if the victim is a prisoner and the officer is guilty of "willful inhumanity or oppression towards (the) prisoner," a $4,000 fine and removal from office (P.C. § 147), in addition to any other applicable assault or battery violations.

P.C. § 843:  "When the arrest is being made by an officer under the authority of a warrant, after information of the intention to make the arrest, if the person to be arrested either flees or forcibly resists, the officer may use all necessary means to effect the arrest."

P.C. § 844:  "To make an arrest, a private person, if the offense is a felony, and in all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing the person to be, after having demanded admittance and explained the purpose for which admittance is desired."

Note:  This is California's "knock and notice" statute, for making arrests.  (See "Knock and Notice," below)

P.C. § 845:  "Any person who has lawfully entered a house for the purpose of making an arrest, may break open the door or window thereof if detained therein, when necessary for the purpose of liberating himself, and an officer may do the same, when necessary for the purpose of liberating a person who, acting in his aid, lawfully entered for the purpose of making an arrest, and is detained therein."

P.C. § 846:  "Any person making an arrest may take from the person arrested all offensive weapons which he may have about his person, and must deliver them to the magistrate before whom he is taken."

P.C. § 490.5(f)(2):  A merchant, library employee or theater owner may use a reasonable amount of non-deadly force necessary to protect himself and to prevent escape or prevent loss of tangible or intangible property.

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Causing Death

Causing Death:  When the use of force results in the death of another person, a "homicide," or a "killing of a human being by another human being," has occurred.  (People v. Antick (1975) 15 Cal.3rd 79, 87.)

See CALCRIM, # 500, "Homicide: General Principles."

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Deadly Force Defined

"Deadly Force Defined:" "Force that the actor uses with the purpose of causing or that he knows to create a substantial risk of causing death or serious bodily injury."  (Emphasis added; See Model Penal Code § 3.11(2) (1962))

The Ninth Circuit Court of Appeal had previously held that "deadly force," when evaluating the use of force by a law enforcement agency through the use of a police dog, should be defined as: "Force which is reasonably likely to cause (or which ‘had a reasonable probability of causing') death."  (Vera Cruz v. City of Escondido (9th Cir. 1997) 139 F.3rd 659, 663; use of a police dog is not deadly force.)

E.g.:  Use of a police dog to bite and hold a potentially dangerous fleeing felon for up to a minute, until the arresting officer could insure that the situation was safe, did not constitute the use of "deadly force," and was therefore not a violation of the Fourth Amendment (seizure), despite the fact that the suspect's arm was severely injured by the dog.  (Miller v. Clark County (9th Cir. 2003) 340 F.3rd 959.)

The above, however, was a minority opinion.  As a result, the Ninth Circuit has recently changed its mind, adopting the majority rule, agreeing that even in the use of a police dog, "deadly force" should be defined as "force that creates a substantial risk of death or serious bodily injury."  (Smith v. City of Hemet (9th Cir. 2005) 394 F.3rd 689.)

However, the use of a police dog does not necessarily constitute the use of deadly force.  It depends upon the circumstances of the case in question.  In such a case, the issue for a civil jury is to merely determine whether the force used was reasonable under the circumstances.  (Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154.)

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Non-Criminal Homicides

Non-Criminal Homicides:  Not all homicides, however, are criminal.  The non-criminal homicides are commonly grouped into two general categories; "excusable" (P.C. § 195; when committed by "accident or misfortune") and "justifiable" (P.C. §§ 196 et seq.), when authorized by law. 

See People v. Velez (1983) 144 Cal.App.3rd 558, 566-568, People v. Frye (1992) 7 Cal.4th 1148, 1155; and CALCRIM # 505-509 (Justifiable) and # 510-511 (Excusable) Homicide

The use of deadly force, and the resulting killing of a human being, may be "justifiable" (i.e., not illegal) when committed as authorized by statute, and as limited by case law.

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Applicable Statutes

Applicable Statutes:

P.C. § 196:     Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, when:

1.      In obedience to any judgment of a competent court; or

2.      When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; or

3.      When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with a felony, and who are fleeing from justice or resisting such arrest.

See Kortum v. Alkire (1977) 69 Cal.App.3rd 325, 333; Foster v. City of Fresno (N.D. Cal. 2005) 392 F.Supp.2nd 1140, 1159; and CALCRIM # 507:  "Justifiable HomicideBy Public Officer."

P.C. § 197:      Homicide is also justifiable when committed by any person in any of the following situations:

1.      When resisting any attempt to murder, commit a felony, or to do great bodily injury upon any person; or

2.      When committed in defense of habitation, property or person, at least in cases of violent felonies; or

3.      When committed in defense of person, or of a wife or husband, parent, child, master, mistress, or servant of such person, at least in cases of violent felonies; or

4.      When necessarily committed in attempting to apprehend any person for any felony, or in suppressing any riot, or in keeping and preserving the peace.

See also CALCRIM # 508:  "Justifiable HomicideCitizen Arrest (Non-Peace Officer),"and # 509:  "Justifiable HomicideNon-Peace Officer Preserving the Peace."

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Limitations:

Limitations:  In reading these statutes (P.C. §§ 196 & 197), a literal interpretation would seem to indicate the conclusion that killing a suspect in any felony situation, even if only a property offense, to prevent the commission of a felony against a person, or to arrest or stop any fleeing felony suspect, nonviolent as well as violent, is lawful.

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'Forcible and Atrocious' Crime

Forcible and Atrocious Crime: Although maybe true at one time, modern case law no longer allows such a liberal application of the justifiable homicide defense. Today, the use of deadly force is specifically limited to defending against, or in the attempt to arrest someone, for "forcible and atrocious" crimes only. (People v. Ceballos (1974) 12 Cal.3rd 470, 478; Tennessee v. Garner (1985) 471 U.S. 1, 12-15 [85 L.Ed.2nd 1, 10-12]; People v. Martin (1985) 168 Cal.App.3rd 1111, 1124; and CALCRIM # 509: "Justifiable Homicide: Non-Peace Officer Preserving the Peace."

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History

History:  The wording in the statutes, referring to felonies seemingly without limitation, comes from the "Common Law" which, in its early history, made all felonies, of which there were only a few, capital offenses.

The Common Law justification for this rule has been quoted, for historical value only, by more recent cases:  "‘Ordinarily, an officer or private person, in making an arrest for a felony, may use whatever force is reasonably necessary to overcome a resisting felon or to stop a fleeing felon, even to the extent of taking his life; and, if deadly force is used, the homicide is justifiable.  The supportive theory is that "felons ought not to be at large, and that the life of a felon has been forfeited; for felonies at common law were punishable with death."'"  (See People v. Martin (1985) 168 Cal.App.3rd 1111, 1115.)

Today, with the law vastly expanded, there are many non-violent, non-capital felonies for which deadly force is not an appropriate response.  (People v. Ceballos, supra; Tennessee v. Garner, supra.)

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The Fourth Amendment

The Fourth Amendment:  The restrictions on the use of deadly force have their genesis in the United States Constitution.  A Fourth Amendment "seizure" occurs whenever "there is a governmental termination of freedom of movement through means intentionally applied."  (Brower v. Inyo (1989) 489 U.S. 593, 597 [103 L.Ed.2nd 628, 635].)

"The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable."   (Emphasis added; Tennessee v. Garner, supra, at p. 11 [85 L.Ed.2nd at p. 9].)

Similarly, the indiscriminate use of a "booby trap" (a felony, per P.C. § 12355) (or a "trap gun," a misdemeanor per Fish & Game Code, § 2007), set up in the house or elsewhere to ward off expected intruders, has been held to constitute an illegal use of force which, by its very nature, cannot be limited to those trespassers who constitute a threat of death or great bodily injury.  (People v. Ceballos, supra.)

See CALCRIM # 500 et seq.

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Forcible and Atrocious Crime, Defined

"Forcible and Atrocious Crime," Defined:   A "forcible and atrocious crime," warranting the use of deadly force; "is any felony that by its nature and the manner of its commission threatens, or is reasonably believed by the "defendant" (i.e., the victim of an assault who uses deadly force in response, and who is now being charged with a homicide) to threaten life or great bodily injury so as to instill in him or her a reasonable fear of death or great bodily injury."  (Tennessee v. Garner, supra.)

Forcible and atrocious crimes have been held to include murder, rape, robbery (at least, when the suspect is armed) and mayhem.  (People v. Ceballos, supra.)  

Depending upon the circumstances, they might also include the so-called "inherently dangerous felonies" (with the exception of burglary; discussed below) listed in the "felony murder" statute; i.e., arson, carjacking, kidnapping, train wrecking, torture, felony child molest and other forcible sex offenses, and murder perpetrated by means of discharging a firearm from a motor vehicle with the intent to inflict death.  (See P.C. § 189)

Viable arguments might be made to include other felonies as well, depending upon the circumstances of an individual case.

Similarly, contrary to a literal reading of the justifiable homicide statutes (e.g., P.C. § 197.2), killing someone in defense of property, even one's own home (but see P.C. § 198.5, below), when not provoked by a threat of death or serious bodily harm to any person, is probably not justifiable.  (People v. Ceballos, supra.)  (But, see P.C. § 198.5, below.)

Although a trespasser may be physically ejected, using whatever non-deadly force is reasonably necessary under the circumstances should he or she refuse to leave when requested, killing the nonviolent trespasser is only likely to leave the landowner, who thought he had a right to defend his property interests at all costs, facing possible civil and criminal penalties.  (People v. Corlett (1944) 67 Cal.App. 27, 35-36; CALCRIM # 506:  "Justifiable HomicideDefending Against Harm to Person with Home or on Property."

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Burglary of a Residence

Burglary of a Residence was considered at Common Law to be a dangerous felony.   Modernly, however, burglary is not normally considered a forcible and atrocious crime, at least where the character and manner of the burglary does not reasonably create a fear of death or great bodily harm to any person within the home.  (People v. Ceballos, supra, at p. 479.)

P.C. § 198.5:  However, California has enacted a statutory presumption that a resident of a home is in fact in reasonable fear of death or great bodily injury to himself, his family, or any member of the household, when someone, not a member of the family or household, has forcibly and unlawfully entered the residence, thus legalizing the resident's use of deadly force within the residence, absent evidence tending to rebut the presumption.  (People v. Owen (1991) 266 Cal.App.3rd 996, 1003-1004.)

This presumption, however, is rebuttable.  Should the homeowner have known under the circumstances that the burglar was not a threat, he might very well be criminally and civilly liable for using deadly force against the intruder.  (See People v. Owen, supra, at pp. 1003-1007; and CALCRIM # 506 ("Justifiable Homicide: Defending Against Harm to Person Within Home or on Property.")

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Self-Defense

Self-Defense:  A personal assault which itself is not sufficient to cause a reasonable apprehension of death or great bodily injury, even if the assault constitutes a felony, is insufficient to justify the use of deadly force against the assailant.  "(T)he felony contemplated by the (justifiable homicide) statute is one that is more dangerous than a personal assault."  (People v. Jones (1961) 191 Cal.App.2nd 478, 481-482; and see P.C. §§ 197.1, 197.3, above.)

See CALCRIM # 500 et seq.

Any person, including a peace officer, may use deadly force against another when the circumstances reasonably create a fear of imminent death or serious bodily harm to the person, and the use of deadly force reasonably appears necessary to resist the threat.  (People v. Humphrey (1996) 13 Cal.4th 1073, 1082; People v. Hardin (2000) 85 Cal.App.4th 625, 629-630; People v. Harris (1971) 20 Cal.App.3rd 534, 537.)

In defending oneself or another, deadly force may only be used in response to the illegal application of deadly force from the aggressor.  Thus, "a misdemeanor assault must be suffered without the privilege of retaliating with deadly force."  (People v. Jones, supra, at p. 482; People v. Clark (1982) 130 Cal.App.3rd 371, 380.)

In order for the defense of self-defense to apply, it must be shown that there existed:

  • A reasonable belief that the use of force was necessary to defend oneself against the immediate use of unlawful force; and
  • The use of no more force than was reasonably necessary in the circumstances. (People v. Minifie (1996) 13 Cal.4th 1055, 1065; and see United States v. Biggs (9th Cir. 2006) 441 F.3rd 1069; rejecting the argument that the defendant must also show that there were no reasonable alternatives to the use of force.)

E.g.:  An assault by fists does not justify the person being assaulted in using a deadly weapon in response unless that person reasonably believes that the assault is likely to result in the infliction of death or great bodily injury. 

Deadly force is justified only when the apparent peril is imminent; meaning at the very time of the deadly response.  A threat of future harm does not legally justify the application of deadly force in self-defense.  (But see "Fleeing Felon," below.)

"Imminent peril" refers to the situation which, from all reasonable appearances, must be instantly dealt with.  (People v. Aris (1989) 215 Cal.App.3rd 1178, 1187-1188; In re Christian S. (1994) 7 Cal.4th 768-783.)

The homicide of the defendant's grandfather was not mitigated (which would have reduced the offense to a voluntary manslaughter under a "heat of passion" theory) by the fact that the grandfather had been overly critical and "mean" to the defendant in the past.  (People v. Kanawyer (2003) 113 Cal.App.4th 1233.)

A person using a firearm to scare off attacking dogs may have a viable self-defense argument.  (People v. Lee (2005) 131 Cal.App.4th 1413; conviction for discharging a firearm with gross negligence reversed for failure of the court to allow a self-defense argument.)

A convicted felon, charged with being a felon in possession of a firearm (P.C. § 12021), may use the defense of self-defense where he grabbed a firearm when confronted with an imminent danger in those instances where "the firearm only became available during an emergency and was possessed temporarily in response to the emergency and there was no other means of avoiding the danger," and the firearm was then immediately thereafter transported or given to law enforcement.  (People v. King (1978) 22 Cal.3rd 12, 24; see also P.C. § 12021(h).)

Similarly, an inmate of a penal institution has a potential defense to a P.C. § 4502 (Inmate in Possession of a Weapon) charge when the possession was in response to an imminent danger, where there is no opportunity to seek the help of authorities, and the weapon is given to authorities as soon as the danger has passed.  (People v. Saavedra (2007) 156 Cal.App.4th 561, 568-570.)

But note that the danger has to be imminent.  A threat of some future harm is not justification for possessing a prohibited weapon in violation of P.C. § 4502.  (People v. Velasquez (1984) 158 Cal.App.3rd 418, 420.)

"Bare fear," or the killer's subjective fear, by itself, is not sufficient to justify self-defense or the defense of others. 

Not only must the person attempting to exercise the right to self-defense or defense of others honestly feel the need to use force, but the circumstances must be sufficient to excite the fears of a reasonable person as well.  (People v. Sonier (1952) 113 Cal.App.2nd 277, 278; People v. Lopez (1948) 32 Cal.2nd 673, 675; People v. Williams (1977) 75 Cal.App.3rd 731, 739; P.C. § 198; CALJIC # 5.14; "Homicide in Defense of Member of Family.")

"Apparent necessity" is all that is required.  As long as the person is acting reasonably, he may act on appearances even though it is later discovered that there in fact was no real need for self-defense.  (People v. Dawson (1948) 88 Cal.App.2nd 85, 96; People v. Pena (1984) 151 Cal.App.3rd 462, 475-478.)

For example, in using deadly force to prevent a residential burglary, whether or not the deceased actually had the intent to commit a burglary is irrelevant to the issue of whether the person who killed him could legally use deadly force.  (People v. Walker (1973) 32 Cal.App.3rd 897.)  The issue will be what the person who applied the force reasonably believed the circumstances to be.

However, an honest but unreasonable belief, while insufficient to establish a claim of self-defense in a murder case, might be enough to negate malice aforethought and thus reduce murder to a non-statutory voluntary manslaughter, sometimes referred to as "imperfect self-defense."  (People v. Flannel (1979) 25 Cal.3rd 688, 674; People v. Uriarte (1990) 223 Cal.App.3rd 192; see also People v. Saille (1991) 54 Cal.3rd 1103, 1107, fn. 1; McNeil v. Middleton (9th Cir. 2005) 402 F.3rd 920.)

The California Supreme Court has held that such an "honest, but unreasonable belief" theory applies to the commission of a homicide in the defense of a third person as well.  (See People v. Randle (2005) 35 Cal.4th 987.) 

However, the theory of an "imperfect self-defense" is not available where the defendant's acts are based only upon his own delusions.  (People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437.)

Original Aggressor, or One Engaged in Mutual Combat, Claiming Self-Defense:  Goading another into a deadly quarrel also imposes some restrictions on the use of self-defense.

The one who initiates a quarrel with the intention of forcing a deadly response in an attempt to justify the use of deadly force in return cannot claim self-defense when he kills his victim.  (People v. Garnier (1950) 95 Cal.App.2nd 489, 496.)

See CALCRIM # 3471:  "Right to Self-DefenseMutual Combat or Initial Aggressor," and CALCRIM # 3472:  "Right to Self-Defense:  "May Not Be Contrived."

Similarly, a person who starts the confrontation with an unjustifiable attack or who voluntarily engages in a fight or mutual combat, and suddenly finds himself losing, cannot claim self-defense unless he first attempts to withdraw from the affray and communicates that withdrawal to his adversary.  (People v. Bolton (1979) 23 Cal.3rd 51, 68; P.C. § 197.3.)

A jury instruction based upon this theory is erroneous when it infers that one engaged in mutual combat must be successful in communicating his intent to withdraw.  It need only be shown that the defendant "really and in good faith have endeavored to decline any further struggle . . . ."  (People v. Quach (2004) 116 Cal.App.4th 294, 300-303; see also P.C. § 197.3)

"Mutual Combat" has a legal definition.  It consists of fighting by mutual intention or consent, as most clearly reflected in an express or implied agreement to fight.  There must be evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose.  (People v. Ross (2007) 155 Cal.App.4th 1033, 1043-1047.)

Note, however, that a "public officer" does not lose his or her right of self-defense due to initiating a confrontation through the use of reasonable force to effect an arrest, prevent escape, or overcome resistance.  (P.C. § 836.5(b))

Once the aggressor makes a good faith attempt at withdrawal, and attempts to inform his opponent of this fact, he regains his right to claim self-defense should the original victim continue the attack.  (People v. Button (1895) 106 Cal. 628, 632-635; People v. Hecker (1895) 109 Cal. 451, 463-465.)

See CALCRIM # 3474:  "Danger No Longer Exists or Attacker Disabled."

An "original aggressor," or a person engaged in "mutual combat," may claim the right to self-defense if he first effectively communicates (or attempts to communicate) by words or conduct that he wants to both (1) stop the fighting and (2) is in fact stopping the fighting.  (People v. Hernandez (2003) 111 Cal.App.4th 582.)

See People v. Nem (2003) 114 Cal.App.4th 160, at pp. 166-167, disagreeing with Hernandez's conclusion that the word "inform," in former CALJIC 5.54, was misleading because it necessarily caused a jury to believe that the original aggressor's words were the only way to communicate an intent to withdraw. 

If the one who originally had a right to self-defense continues the altercation after the aggressor has broken off his assault and there is no longer imminent peril to the original victim, that victim cannot claim the defense when he catches and assaults the former aggressor.  (People v. Smith (1981) 122 Cal.App.3rd 581, 590; People v. Perez (1970) 12 Cal.App.3rd 232, 236.)

See also CALCRIM # 3474:  "Danger No Longer Exists or Attacker Disabled."

However, if the original victim reasonably and in good faith feels that he must pursue his attacker in order to effectively secure himself from further danger, then self-defense is still applicable.  (People v. Hatchett (1942) 56 Cal.App.2nd 20, 22.)

The pursuit, however, must not be motivated by revenge nor after the necessity for self-defense has ceased.  (People v. Finali (1916) 31 Cal.App. 479; People v. Conkling (1896) 11 Cal. 616, 626.)

Also, if the original aggressor used less than deadly force, his intended victim may not respond with deadly force, and if he does, then the original aggressor has the right to use deadly force in self-defense.  (People v. Hecker, supra, at p. 464.)

On the other hand, the one originally attacked has no duty to attempt to withdraw.  He may stand his ground and need not take advantage of an opportunity to escape from, or avoid another's attack or any attempt to use deadly force against him.  (People v. Dawson (1948) 88 Cal.App.2nd 85, 95; People v. Gonzales (1887) 71 Cal. 569, 578.)

Self-Defense is not available to a person charged with murder under the felony murder statute; i.e., one who kills another during the commission of one of the dangerous felonies listed in the murder statute; P.C. § 189.  The purpose of the "felony murder rule" is to deter even accidental killings by imposing strict liability on anyone who causes another's death while committing any one or more of the specified felonies.  (People v. Loustaunau (1986) 181 Cal.App.3rd 163, 170.)

Neither self-defense nor defense of property is available to one who uses force to resist a lawful arrest or to deter a lawful entry upon one's land.  (See P.C. § 693)

Burden of Proof:  Under federal law, it has been held that justification for possessing a firearm (otherwise illegal under 18 U.S.C. § 922(g)(1)) in self-defense is an affirmative defense for which the defendant must prove by a "preponderance of the evidence" the necessity for doing so.  (United States v. Beasley (9th Cir. 2003) 346 F.3rd 930.)

See also CALCRIM # 3471; "Right to Self-DefenseMutual Combat or Initial Aggressor."

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Fleeing Felon

Fleeing Felon:  The use of "deadly force" to stop a "dangerous person" fleeing from the scene of a "forcible and atrocious crime," or suspected of having committed such a crime, is legally justifiable.  (See Tennessee v. Garner, (1985) 471 U.S. 1 [85 L.Ed.2nd 1]; P.C. §§ 196.3, 197.4, above.)

See CALCRIM # 507:  "Justifiable HomicideBy Public Officer."

A "dangerous person" is one who "poses a significant threat of death or serious bodily injury to the person attempting the apprehension or to others, or has committed a forcible and atrocious felony."  (People v. Martin (1985) 168 Cal.App.3rd 1111, 1124.)

Police may use deadly force to stop an escaping violent felony suspect who would pose a substantial risk to others if apprehension is delayed.  (Forrett v. Richardson (9th Cir. 1997) 112 F.3rd 416; deadly force used to stop a "home invasion" suspect who had previously shot and wounded a victim.)

While the commission of a violent crime in the immediate past is an important factor, it is not justification for using deadly force "on sight."  (Harris v. Roderick (9th Cir. 1997) 126 F.3rd 1189, 1203.)

See also Hopkins v. Andaya (9th Cir. 1992) 958 F.2nd 881, 887; holding that an officer's second use of deadly force was unreasonable even though the suspect had violently assaulted the officer a few minutes before, but by the time of the second use of deadly force, although he was advancing towards the officer, he was wounded and unarmed.

The force used must still be no greater than necessary under the circumstances.  The use of so-called "less lethal" (e.g., bean bag ammunition) force may still be deadly, and not necessarily appropriate despite the fact that the suspect upon which it is used is threatening violence.  (Deorle v. Rutherford (9th Cir. 2001) 242 F.3rd 1119; imposing a duty to warn, where appropriate, before using potentially deadly force.)

Absent circumstances that elevate an incident into a dangerous felony assault, deadly force is not lawful in attempting to arrest a misdemeanor suspect.  (People v. Wild (1976) 60 Cal.App.3rd 829, 832-833.)

A high-speed pursuit may or may not allow for the use of deadly force, each case depending upon its individual circumstances.  (Brosseau v. Haugen (2004) 543 U.S. 194 [160 L.Ed.2nd 583]; finding that an officer who shot a suspect who was attempting to flee in his vehicle did not have "fair notice" based upon the conflicting case law as to whether the force she used was excessive.  She was therefore entitled to "qualified immunity" from civil suit.)

Other federal circuits have approved the use of deadly force to halt a dangerous high-speed vehicular police pursuit, although under circumstances which, arguably, were more aggravated than in HaugenSee:

Scott v. Clay County (6th Cir. 2000) 205 F.3rd 867, 877:  Shooting a fleeing felon whose reckless driving posed an immediate threat to the safety of officers and innocent civilians.

Smith v. Freland (6th Cir. 1992) 954 F.2nd 343, 347-348:  Shooting a fleeing misdemeanant who posed a danger to officers at a police roadblock when it appeared likely he would "do almost anything to avoid capture."

Cole v. Bone (8th Cir. 1993) 993 F.2nd 1328, 1330-1333:  Shooting a defendant fleeing in a truck when he posed a threat to travelers on a crowded highway.

Pace v. Capobrianco (11th Cir. 2002) 283 F.3rd 1275, 1281:  Shooting a fleeing felon in a vehicle when it appeared likely he would continue to use his car aggressively during a police pursuit.

Deadly force may not be justified, however, in a "nonchalant," or "rapid Sunday drive" speed pursuit where the driver was rammed twice (under circumstances that were contrary to CHP policy) and then shot six times without a prior warning and without a showing that the officer, or any other officer, was in immediate danger.  (Adams v. Speers (9th Cir. 2007) 473 F.3rd 989.)

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Transferred Intent

Transferred Intent:  In attempting to determine the legality of a claim of self-defense, and presumably the other legal justifications for committing a homicide, it is important to note that the doctrine of transferred intent applies.

E.g.:  Accidentally shooting an innocent person while lawfully attempting to defend oneself from someone else's use of deadly force is a "justifiable homicide," there being no criminal intent.  (People v. Mathews (1979) 91 Cal.App.3rd 1018, 1024; People v. Levitt (1984) 156 Cal.App.3rd 500, 507-508.)

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Use of Deadly Force by Police Officers

Use of Deadly Force by Police Officers:

Attacking a police officer with a deadly weapon justifies the officer's use of deadly force in response:

Where the suspect violently resisted arrest, physically attacked the officer, and grabbed the officer's gun.  (Billington v. Smith (9th Cir. 2002) 292 F.3rd 1177, 1185.)

Where a suspect, who had been behaving erratically, swung a knife at an officer.  (Reynolds v. County of San Diego (9th Cir. 1996) 84 F.3rd 1162, 1168.)

Pointing a gun at a police officer.  (See Scott v. Henrick (9th Cir. 1994) 39 F.3rd 912, 914.)

When the suspect attacked an officer with a rock and a stick.  (Garcia v. United States (9th Cir. 1987) 826 F.2nd 806, 812.)

However, the mere fact alone that a person possesses a deadly weapons does not justify the used of deadly force.  (Harris v. Roderick (9th Cir. 1997) 126 F.3rd 1189, 1202.)

See also Curnow v. Ridgecrest Police (9th Cir. 1991) 952 F.2nd 321, 324-325; holding that deadly force was unreasonable where the suspect possessed a gun but was not pointing it at the officers and was not facing the officers when they shot.

And Ting v. United States (9th Cir. 1991) 927 F.2nd 1504, 1508-1511; Use of deadly force unreasonable when the suspect had already dropped his gun.

The use of a police dog may be "deadly force."  (Smith v. City of Hemet (2005) 394 F.3rd 689; overruling prior authority to the contrary and defining deadly force as "force that creates a substantial risk of death or serious bodily injury.")  But it depends upon the circumstances.  (Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154.)

            See "Deadly Force, Defined," above.

When the fleeing felon was known to have shot a victim in the course of a burglary from which he was escaping, the use of deadly force to stop him is justified.  (Forrett v. Richardson (9th Cir. 1997) 112 F.3rd 416, 420.)

A high-speed pursuit may or may not allow for the use of deadly force, each case depending upon its individual circumstances.  (Brosseau v. Haugen (2004) 543 U.S. 194 [160 L.Ed.2nd 583]; finding that an officer who shot a suspect who was attempting to flee in his vehicle did not have "fair notice" based upon the conflicting case law as to whether the force she used was excessive.  She was therefore entitled to "qualified immunity" from civil suit.)

Pointing and "training" a firearm at a five-week-old infant while conducting a Fourth Waiver search is excessive, and a Fourth Amendment violation.  (Motley v. Parks (9th Cir. 2005) 432 F.3rd 1072, 1088-1089.)

Ending a dangerous high speed vehicle chase with speeds in excess of 85 miles per hour, where the suspect was driving recklessly and forcing other motorists off the road, by bumping the suspect's car and pushing him off the road severely injuring him, is reasonable force.  Also, there is no duty to break off the chase.  (Scott v. Harris (2007) __ U.S. __ [127 S.Ct. 1769; 167 L.Ed.2nd 686].)

See CALCRIM # 500 et seq.

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