While much press has been given to “Stand Your Ground” laws in Florida and other states, did you know that California is also a stand your ground state? A little over half the states have formally legislated stand your ground laws in one form or another. California, along with a few other states, have stand your ground laws established through case law precedent, rather than legislation. Altogether, 34 states, including California, allow a person to stand his/her ground in self-defense, no matter the setting. The remaining states allow stand your ground defense only if he or she is in his vehicle and/or home, while Vermont and Washington D.C. require a person to flee from a criminal assault of any kind and even if that is within their own home.

Stand your ground laws among states vary, but essential to all is the right of person to use force to defend him-or herself without first trying to flee. Hence the sobriquet “Stand Your Ground.”

Stacy was sitting in her kitchen feeding her toddler when suddenly her ex-husband, who was under court orders to stay awayfrom Stacy, their child, and Stacy’s home, comes banging through the front door. Wild-eyed and apparently on drugs, he started waiving a pistol at Stacy, telling her that he is going to kill her and the child. Stacy had feared this day and she kept a gun in the kitchen drawer. She was able to grab the gun and shot her ex-husband, fatally wounding him. It was later discovered that her ex-husband’s pistol was not loaded.

In this hypothetical example, is Stacy guilty of homicide? While she could get arrested and charged with murder or manslaughter, in California she will have the defense of justifiable homicide, which is what the stand your ground defense is called in California. This defense is available whether the crime is an actual murder, attempted murder, or attempted voluntary manslaughter.

Stacy must prove that she (and/or her child) was imminent danger of being killed or suffering great bodily injury, that she had a reasonable belief that the use of deadly force was necessary to defend against that danger, and she used no more force than necessary.  It seems clear that Stacy can prove these elements. Even though in the end, her ex-husband did not have the means to harm her with the unloaded pistol, it was reasonable for her to believe he could have.

Now if we change it up a bit:

Kevin is in the kitchen feeding his one-year old. Suddenly his diminutive 5’1” girlfriend comes barging through the front door. Kevin had called the police several days earlier because his girlfriend had been going into rages, throwing things at him, and pounding on him. The police issued an emergency protective order, which barred the girlfriend from coming back to Kevin’s house or contacting Kevin. As the girlfriend comes through the door, she is wielding a large kitchen knife and yelling that she is going to kill Kevin. Kevin grabs his gun and shoots her in the arm. Kevin is charged with attempted manslaughter.

It is reasonable to conclude that Kevin, who is a well-built 5’11”, could have defended himself and his child without the use of deadly force. The defense of justifiableattempted manslaughter will probably fail because he had no reasonable belief that the immediate use of the gun was necessary to defend himself or his child. Kevin may have other defenses, such as involuntary manslaughter or voluntary manslaughter in the heat of passion, but Kevin’s act may not satisfy the complete defense of justifiable attempted murder.

The stand your ground defense also applies to the defense of one’s real or personal property in California. Even deadly force may be used to defend one’s property during the commission of a felony or violent offense (for example, a home invasion robbery). The force used to protect the property must be “reasonable.” Of course, shooting someone won’t always be reasonable but the use of any force, including assault, is justifiable if reasonable in light of the circumstances and necessary to protect the property from imminent harm.

The stand your ground defense can apply to any assault defense—it is not limited to the use of a gun. In the example of Kevin above, if he had grabbed his girlfriend, knocked her to the ground, and seized her knife, causing serious injury to his girlfriend in the process, the stand your ground defense would be more reasonably raised.

If you would believe you may have a “Stand Your Ground” defense on charges filed against you, Orange County criminal defense Attorney William Weinberg is available for a free consultation regarding the specifics of your case. You may contacthim at his Irvine office at 949-474-8008 or by emailing him at