California: An Overview of Self-Defense Laws
The purchase, sale, storage, possession and use of certain weapons for self-defense in California is governed by California Code of Regulations Title XI, § 5470, et seq ("Weapons Regulations"). Specific California Penal Code sections apply to specific types of weapons ("Weapons restrictions"), including Penal Code § 12020 (knives), Penal Code § 12025 (firearms), Penal Code § 12026.1 (pepper spray), and California Penal Code § 12076 (chemical dispensing nozzles). California law permits the manufacture, sale, storage, possession and use of certain weapons for self-defense, under the self-defense laws. California civil law recognizes the right of an individual to act to defend oneself from harm, using reasonable force in response to certain imminent threats of injury or death, with a few caveats that will be enumerated in this paper.
It is important to keep in mind, however, that California is generally a "duty to retreat" state and, before exercising self-defense rights, it must be made with the intent to protect one’s life or the life of another from imminent harm (i.e. unjustified physical harm or serious injury/death) and not used as the first means of defense against potential harm. Instead, the individual must make reasonable efforts to remove himself from the situation that gives rise to the need for self-defense. So , the key elements of self-defense under California law are: (1) the belief of imminent harm/death/injury must be objectively reasonable; (2) the use of defensive action must be reasonable (i.e. one may not use more violent weapons than are necessary); and (3) one must retreat as far as reasonably possible from the threatening party.
These basic elements of self-defense are codified in California Penal Code § 197, which provides (in relevant part) the following: 1. Homicide is justifiable when committed by any person in any of the following cases: (a) When resisting any attempt to murder any person, or to commit a felony, or to perpetrate any crime, against any person in his presence or or in the presence of his immediate family; or (b) When committed in the attempt unlawfully to dispossess the person of his property, except in cases of domestic violence, by removing or attempting to remove the person from the premises or residence without the consent of the person, any member of his family, or any individual who is residing lawfully in the premises or residence. It is irrelevant then whether the property is ownership- or occupancy- related, as long as the circumstances involve a person’s home or living quarters, and not his place of employment or business. (2) A person is not required to retreat before using deadly force in self-defense; but this presumption is not available if the individual is at fault in provoking the altercation that allegedly warranted the use of self-defense. See generally People v. Ceballos, 42 Cal.3d 960 (1986) (involving person who shot alleged assailant in the back after assailant attempted to flee altercation; court held use of deadly force was not justified under § 197).
Legal Tools for Self-Defense in California
California law permits the use of certain weapons in the context of self-defense and other reasonable defense of self, others, and property related incidents. That said, California law does not have a "stand your ground law" as it is often referred to in other states’ laws.
Rather, California laws on self-defense allow an actor to use reasonable force if (1) the person reasonably believes that he or she is in imminent danger of being killed without use of force to stop the other party and (2) the force used to prevent the harm is reasonable under the circumstances.
The rights to use self-defense weapons increases when the actor is in a place he or she has a right to be. In such instances, the actor may use reasonable force to defend himself or herself even if the actor’s own conduct justified or entitles the actor to use self-defense weapons. If the actor is engaged in criminal conduct, however, he or she may not use self-defense weapons.
For the lawful use of a weapon such as a firearm to defend yourself, you need to be legally in a place to defend yourself. In other words, if you do not have the right to be where you are when you use deadly force—including firearms—you cannot raise the issue of justified self-defense.
Bodily injury to another as a meant of protecting one’s own cell is lawful only if, when viewed by a reasonable person, the threat of bodily injury to your cell was genuine. A person may use nondeadly force to protect himself or herself if the person reasonably believes such force is necessary to protect himself or herself against the immediate use of unlawful force.
Although individuals have the right to protect themselves from a real threat, he or she must still act as a reasonable person would act under the circumstances. While this standard gives a lot of leeway to those engaged in self-defense, grand juries have been known to return "not true bills" or an indictment failing to charge in instances where the jury thinks a defendant who asserted a self-defense justification was not acting reasonably or that the evidence did not establish the alleged offense was committed with intent to kill, among other things.
One key to whether a weapon is classified as a "self-defense weapon" is whether the weapon is on the list of weapons approved by the attorney general. The list varies from firearms to tasers to knives.
A taser, for instance, is a lawful self-defense weapon in California so long as its use does not violate any other law. To wit, a taser is prohibited in certain sensitive areas under California Penal Code § 171b. Elsewhere tasers fall under the definition of "stun gun" but does not include a taser in the types of prohibited weapons under California Penal Code § 626.10.
Certain knives, however, are prohibited under various other California criminal statutes depending on the knife’s function and its potential for injury regardless of an individual’s assertion of same as a self-defense weapon. Knives may not be on the above-mentioned list and inherently function as a self-defense weapon.
Firearms: Requirements and Restrictions
The requirements for firearms under California law are typically more exhaustive and burdensome than the requirements governing other forms of weaponry, but for the owner of a firearm, this is just part and parcel of owning a firearm in California. Even a person who is lawfully in possession of a firearm cannot use it for purposes of self-defense unless the law has carved out a particular exception to the general legal prohibition on the discharge of a gun.
California law essentially prohibits handgun owners from carrying their firearms on their person or in their vehicles. (The legal term for such a gun is a "concealed firearm.") The owner of a legally obtained handgun who wishes to carry a weapon in public to defend himself will need to obtain a concealed carry permit (also known as a "CCW"). This involves criminal background checks and an "in good moral character" evaluation that considers the applicant’s need for a concealed weapon. There is no guarantee that the application will be granted, even if the applicant has a clean criminal record and a veritable arsenal of guns. And even gun owners who have concealed weapons permits may only carry their gun under the conditions specified by the permit.
Currently, only the counties of Los Angeles, Orange, San Bernardino, Santa Barbara, Solano, Ventura, and the cities of San Antonio, Pasadena, and Los Angeles issue CCWs. In LA County, only the sheriff has the power to grant a CCW. Citizens must have a "substantial" reason for possessing an unlicensed weapon in public, and those applying must demonstrate all of the following: (1) good moral character, (2) good cause, (3) a residency that is either a permanent residence, place of business, or principal land within the area of the specific Sheriff’s Department the applicant applied to for a CCW, and (4) show that the weapon is not prohibited in public by statute and is of a kind allowed in public per statute.
Because of the severe restrictions placed on the issuance of a CCW, to avoid detection and prosecution, many Californians choose to carry their handguns openly, though with the passage of AB 4, on January 1, 2013, California is now a "shall issue" state — meaning that all counties must issue open carry permits unless the applicant poses a threat to society. To legally possess a firearm on your person in public, at this time, requires only that the gun be carried in a belt holster that is "completely visible" and "not propelling a projectile." However, an exception for this open carry rule also exists: it is illegal to carry an open gun on your person in a vehicle. The penalty for doing so is generally a misdemeanor punishable by imprisonment of up to six months and/or a fine of up to $1,000.
Also note that California firearms statute prohibits a gun owner from storing a gun in a way that could normally lead to access to the weapon by a child under age 18. Those convicted of the violation may be sentenced to up to one year in county jail and fined up to $1000. If a firearm is stolen because of a gun owner’s failure to store it properly, the owner may be subject to the same penalties.
While resistant to the idea of letting citizens own guns, the state of California is pragmatic about the use of deadly force in self-defense. Even though criminal defense lawyers often find they need to challenge the assertion of self-defense by their clients, California law does permit the use of lethal force in the protection of one’s person and property. A person may justifiably use lethal force — even against an intruder in his or her home — if the actor has a reasonable belief that the use of force is necessary to prevent death or great bodily injury to his or her assailant. This kind of self-defense is not permitted where the assailant is one who has entered the property with the intent to commit grand theft.
Gun enthusiasts should also remember that there are major limitations placed on the types of weapons that may legally be owned in the state. Restricted weapons include automatic weapons, sawed-off shotguns, and certain concealed weapons that lack serial numbers. Penalties for the illegal ownership of these weapons are steep — including minimum fines of $25,000.
Non-Lethal Self-Defense Weapons
There are several options for self-defense weapons that are not considered "lethal" weapons under the law. Everything from pepper spray to a stun gun may not be subject to the same type of restrictions as knives or guns.
Pepper Spray
California law allows the use and carrying of a small amount of pepper spray by non-peace officers. The entire package, including any dispensers, tank, or nozzle, cannot contain more than 2.5 ounces of pepper spray that cannot be propelled with a force of over 2.5 pounds. The only exception to the 2.5-ounce rule is for people who work in security or law enforcement who are allowed 36 grams of pepper spray. A person may not purchase more than one unit of tear gas in a 48-hour period.
Stun Guns
Stun guns have been legal in California since 1998. A stun gun is a device that delivers electrical energy to a person for the purpose of self-defense through the use of a small electronic device. Stun guns come in many shapes and styles including small flashlights with a stun function, similar looking units to cigarette lighters, and even animal control stun guns for dogs and cats. There are no restrictions on size and they do not need safety measures to restrict care to a certain location. However, it is illegal to sell a stun gun to anyone under the age of 16 years old. It is unclear if this includes mail order purchases.
Self-Defense Weapons & Legal Disputes
As stated in our introduction for the "Understanding California’s Self Defense Weapons Laws" article, California law has its own definitions of terms associated with weapons, such as self-defense weapons. One has to be careful about not only what one says as a response to a 911 call, but also when using a self-defense weapon. For instance, in the case of People v. Humphrey (1996) 13 Cal.4th 1073 the defense argued for a definitive definition of "imperfect self defense" as that term applies to self-defense weapons cases. In holding the defense to that argument, the California Supreme Court stated: "we hold here that a failure to perceive the danger of a violent attack by a third person does not negate the self-defense claim – at least in a case where the convincing basis for the failure of perception is a psychiatric disorder such as post traumatic stress syndrome suffered by the victim of a prior battery." The implication of this statement is that the use of a weapon will only be excused if the defendant proves he or she thought the use was necessary to protect themselves from harm.
The example of Humphrey is especially poignant because even though the defendant was successful, it showed how hard the state can try to prove its determination that someone committed a crime when using a weapon but claiming it was in self-defense. Care should be taken to speak carefully and in a very measured way while remaining calm when talking to police after a potential self-defense action; this will avoid any misinterpretation if that case ends up in the court system . The use of weapons in California that are deemed approved for self-defense should also be discussed with an attorney.
The potential legal challenges of using a weapon for self-defense reasons can be myriad. One thing that California law focuses on is if the defendant truly believed he or she was in danger of "imminent death or great bodily injury" according to California Penal Code Section 198. In 2016, for example, there was a famous case of a veteran who shot and killed a burglar in his home in San Mateo County. California authorities refused to call it self-defense, instead calling it "vigilante justice" because the man shot the burglar in the back. He did not call the police before or after the shooting, which led to a long investigation before the shooting was declared justifiable.
What the example showed was that even if a homeowner shoots and kills a burglar in his or her home, the burden of proof to prove it is self-defense will still remain with the homeowner. Therefore, each case should always be examined for its merits and if the homeowner has a proper defense.
It will also help the defense if the citizens and homeowners of California pay attention to gun safety laws and programs. Shooting and training of weapon use, including firearms and other potential self-defense weapons (the list is approved by Californian authorities), should be explored by the citizen. That will make the citizen far more aware of the law and if he or she truly believes their action was intentional versus if they are acting in a careless or reactive manner when they resort to self-defense.
Changes to California’s Self-Defense Laws in 2019
California recently implemented changes to the laws regarding self-defense weapons that are most significant and should be noted by all residents. For the purposes of this blog, the term "self-defense weapon" refers to firearms, knives, electric weapons, and all other dangerous weapons. The new laws were adopted by the California Legislature when they established the latest California state budget.
The most significant change relates to firearms. Individuals purchasing or transferring firearms, which would normally face a ten-day waiting period, are now facing a thirty-day waiting period. In some circumstances, the waiting period could be even longer. The reason for the law is due to the State of California changing its background check policies. California officials are now conducting a more thorough review of individuals and their history prior to purchasing or transferring guns. In addition to ordinary background checks, the program also screens an individual’s mental state to ensure that they do not suffer from psychological issues.
Other changes occurred as well. Under the laws passed by the State Legislature, adults no longer need a permit to buy and own a knife in California. The laws also more clearly define what an "innocent bystand" is, since there were many cases where individuals were arrested for carrying dangerous weapons when simply passing through an area where pro-gun and anti-gun protests were taking place. Under the current laws, if an innocent bystand witnesses a protest or public demonstration that involves weapons, they are permitted to leave the area they are in without having to abandon their personal property.
California officials stated that the new laws were passed to ensure that the state can better detect individuals who have the ability and the willingness to commit violent crimes, especially against law enforcement. Another purpose of the laws is to discourage criminals from obtaining self-defense weapons to avoid being arrested.
The more time an individual spends in waiting for their background check to be completed, the less likely they are to purchase self-defense weapons illegally, something that officials in California are hoping will be reflected by their latest legislation. Officials also hope that individuals will spend the waiting time more wisely by developing new methods and technology to keep themselves and their families safe from violent individuals.
How to Stay Up-To-Date With Self-Defense Laws
Information on upcoming laws may come from different sources including: legislators, news media or from private sources. However, one of the best sources is a weekly publication called "California Legislative Information" that comes out every Friday. The website is: www.leginfo.ca.gov. The website shows all the bills that are currently being considered by the legislature and then it breaks down whether it is being supported by various organizations. You can even link to another website where you can see if a bill has been voted on that day. Once the status is in the system it continues even after it becomes a law. You can follow particular bills on the website by signing up for a newsletter that notifies you if there is any movement on that bill. You should never assume that once a bill is passed it can’t be amended. If you want to be aware of all the amendments to a bill once it is passed , you can link to that particular bill and check a box that says you want to be notified if there are any changes to that bill. However, that will come at a subscription cost of $25 a year.