Self-Defense and the Law

Wednesday, April 23rd, 2014

If you find yourself under attack, and you successfully protect yourself, what is the worst that can happen?

Steven Levine: The worst that can happen is that you go to prison for the rest of your life, especially if you kill somebody. In California, even if you have a valid self-defense claim, the DA’s office will typically still file charges on you. I recently had a client, a 50-year-old nurse, who was in her own home when her ex-boyfriend (for 26 years) came over. He’d moved out 7 months earlier. There was a small history of domestic violence. But in fact, he had recently assaulted their 22-year-old daughter by head-butting her. While they were discussing things downstairs in the living room, he picked up a sledgehammer. She grew worried, told him to leave, and retreated upstairs. He put down the hammer but followed her upstairs and told her he did not have to leave. Once upstairs, he was yelling at her. Finally, she grabbed her gun. She’s a cancer survivor. She’s had a double mastectomy. She’s half his size, and she told him to leave. He went for the gun, and she shot him. The bullet went through his rib cage and he died. She tried to save him by doing CPR.

The jury convicted her of murder despite the fact that she said that she was scared for her life. Again, the general principle is correct as far as the law is concerned: You can defend yourself as long as you’re scared of great bodily injury — and that’s not such a high standard. Great bodily injury could be pretty much anything. I was just at a preliminary hearing the other day where the complaining witness had been hit and received two bruises under the eye. This qualified as great bodily injury. But you have to realize there are standards that apply to the cops and to prosecutors, and there are standards that apply to ordinary defendants.

Most people do not succeed with self-defense claims in California, Levine says — but that’s not the whole story:

Rory Miller: In my experience, most of the people who claimed self-defense had been involved in a mutual fight and were rationalizing it as self-defense. One exception was a man who had shot two notorious dealers who broke into his home. When I got the story from him, he left out the part where he had robbed these guys at gunpoint a few hours earlier.

Some cases are unambiguous though:

Sam Harris: Steve, how do things change if a person is attempting to rob me? I haven’t been assaulted — but the other person is implicitly threatening me with the prospect of violence by saying that if I comply with his instructions, I won’t get hurt.

Steven Levine: If you’re being robbed, you can just kill the other person.

Sam Harris: Are you kidding?

Steven Levine: If you’re being robbed, you can take out your gun and shoot the person dead, and no one will prosecute you.

Sam Harris: There’s no requirement to drop your wallet and run, in the hopes of avoiding violence?

Steven Levine: None at all.

Sam Harris: Huh…

Steven Levine: The difference is, it’s clear: You are the victim of a crime. And people know that robberies often result in death.

Sam Harris: But are you assuming that the other person is armed?

Steven Levine: I don’t care if he’s just got his finger under his shirt.

Sam Harris: That is just… bizarre…. Let’s assume I can safely retreat, but I happen to be worried about other people in the area. Can I defend these people as I would myself?

Steven Levine: The defense of others is basically just an extension of your own right to self-defense, meaning that these people had better be in imminent danger of harm.

Sam Harris: So, I’m in a liquor store, and a man walks in and pulls out a gun and tells everyone to get down on the floor. As it happens, I’m standing near the door and can just run away. But I also have a gun — let’s leave aside the fact that we’re in California, and I shouldn’t have a gun on me in the first place. Can I legally shoot this person in the back of the head?

Steven Levine: Yes. Once somebody is engaged in felonious conduct, you can do whatever you do to stop him.

Sam Harris: I just find this astonishing — given the legal ambiguities that loom everywhere else. Threats of violence, or even an actual assault, seem open to endless caviling, but someone saying “Give me your wallet” magically clarifies everything and opens the door to lethal force.


Sam Harris: Steve, one final question: I know things get much clearer when we’re talking about home defense—leaving aside the case you mentioned at the beginning of the woman who shot her ex-boyfriend. If you confront a stranger in your home—a person who has no conceivable right to be there—the case for self-defense is much clearer, correct?

Steven Levine: Yes. If a stranger comes into your home, and you think he’s about to commit a felony against you, even if he is unarmed, you can shoot him.

Sam Harris: And that’s every bit as clear as it is for robbery?

Steven Levine: Yes, because it’s your home. Legally speaking, you don’t even have to warn the other person. I should say, however, that guns generally cause more problems than they’re worth. As an attorney, you don’t see that many good cases, and you see lots of bad ones. Kids get their hands on them, or criminals do. There are people who simply shouldn’t own guns. I’m speaking as a defense attorney who was a prosecutor for 13 years.

Sam Harris: No doubt. A person can talk about the Second Amendment all he wants, but keeping a gun in one’s home is a huge responsibility—which millions of people take far too lightly. And many people seem to believe that if you keep a gun for the purpose of home defense, there’s no way to store it safely and still have it available in an emergency. But the truth is that a gun stored in a combination safe or lockbox can be accessed nearly as quickly as one that is sitting unsecured in a drawer. We’re talking about a difference of less than a second. Anyone who buys a gun has a responsibility to get enough training to become truly competent with it. Otherwise, a person shouldn’t own a gun.


  1. Toddy Cat says:

    “should say, however, that guns generally cause more problems than they’re worth. As an attorney, you don’t see that many good cases, and you see lots of bad ones”

    Of course, as an attorney, this guy only sees the bad cases. Someone who frightens off an attacker without firing a shot, which is what almost always happens, never ends up in the court system, and this joker never sees it. Also, stay the Hell out of California…

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