Is deadly force legal if you HATE your attacker?

When we talk about using deadly force legally, we generally define it like this:

Deadly force is justified only to prevent the imminent danger of death or great bodily harm.

So, you're in your house minding your own business. A man bursts through the back door waving a machete. And you shoot him because you fear for your life. Pretty simple concept, right?

But what if in addition to fear you also feel "hatred" toward the person you shoot? Should that make any difference?

You'd think the answer would be no. But in a recent article in the Washington Post, Eugene Volokh considers a wrinkle in California law that could call into question the use of deadly force if you experience any emotions other than fear.

Are you guilty of murder, because you didn’t act based on your “fears alone,” but based on your reasonable fears plus some other motive? The conventional answer is no: The LaFave treatise, for instance, expressly says that if a defender “acts in proper self-defense, he does not lose the defense because he acts with some less admirable motive in addition to that of defending himself, as where he enjoys using force upon his adversary because he hates him.” The comment to Model Penal Code § 3.04, likewise states that self-defense “does not demand that [the belief of necessity of defensive action] be the sole motive of [the defendant's] action,” because “an inquiry into dominant and secondary purposes would inevitably be far too complex.” See State v. King (Ariz. 2010).

But in California (and apparently Idaho), it appears that you would be guilty of murder. California, like all states, allows people to use deadly force to resist an attempt to kill, inflict serious bodily injury, rape, or commit some other very serious crimes. But Cal. Penal Code § 198 provides that,

the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone.

That sounds a little crazy. So you might think that this is just a lone example of a poorly worded law. But California jury instructions say the same thing:

To justify taking the life of another in self-defense, the circumstances must be such as would excite the fears of a reasonable person placed in a similar position, and the party killing must act under the influence of those fears alone.

We can conjecture that the purpose of this law is to make sure that justifiable deadly force is limited to situations where someone is honestly defending themselves and can't be applied to "revenge" killings or other circumstances.

However, Volokh provides a realistic example of how the law as worded could turn self defense into murder.

He gives the example of a woman in a relationship with a man who has raped or beaten her. The first time it happens, the woman doesn't use deadly force even though she would have been justified in doing so. At a later time, the man admits that he has abused the woman's daughter. When the man again attempts to rape or beat the woman, she uses deadly force because now in addition to fear, she also feels hatred toward the man and even perhaps a desire for revenge.

Common sense would suggest that the added emotions shouldn't remove the justification for deadly force. However, according to Volokh, under California law, the woman would be guilty of murder because her emotions were no longer pure fear.

It's yet another example of the difference between what is right and what is legal. In law, the devil is always in the details. Being "in the right" doesn't always hold up in court.

Add to this the negative attitude many people have about firearms, and you can see why defending yourself with a gun poses tremendous risk that seems out of proportion. Defend yourself with a baseball bat and you probably won't get in trouble with the law even if death is a result. Defend yourself with a gun in the exact same situation, and it's a whole different ball game.

From our friends at Second Call Defense.