Self-defense laws explicit in California

Last week, I spoke about a case that I was trying in Stockton regarding an unarmed, mentally ill man (who was having a manic episode and unable to understand his actions) who was shot in a bank by an armed courier who was making a delivery. Although my work is generally within the broad area of personal injury and employment discrimination, I also do some civil-rights and excessive use of force cases as I think that someone needs to keep those in power in check.

On the day in question, the security guard had decided to leave his bullet-proof vest in the truck and exit despite seeing a man and his wife arguing outside a car that was parked at an odd angle. His training in situations in which he felt there was anything odd or he felt uncomfortable called for him to just get back into the safety of the armored vehicle and drive away. He chose not to do so and instead got into a staring contest with the decedent, outside and inside the bank, because he thought the decedent was “staring at him, trying to belittle him, make him feel small and scare him.”

The guard, who admitted that he saw in the decedent's eyes that “something was wrong with him,” stated that he did not leave, as trained, because he did not want the decedent to “think he was a punk.” After seeing and hearing the decedent ask for money and walk away when he was not given it — and despite there being no threat of violence ever made — the guard shot the decedent when he asked the guard for his money. At the time, the decedent was shot he was reaching for the money bag that the courier was holding out in his hand, toward the decedent, as he was saying, “Stop, get back.” The decedent was bent over at the waist at more than 45 degrees when he was shot. The decedent left behind a wife who was 4 months pregnant with their only child.

The theory of liability is negligent wrongful death, the killing of a mentally disabled man who had made no threat of violence and only was asking for money. The defense is self-defense. This issue raised is similar to the Trayvon Martin-George Zimmerman case in that it begs the question: “What is California's law regarding self-defense? Is there a Stand Your Ground law?”

The answer is there is no statutory Stand Your Ground law in California. There are sections of the penal code, case law and a criminal jury instructions that outline elements of a self-defense defense. First, if you are in your home and someone breaks in, Penal Code Section 198.5 states: “Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.”

If you are not in your home, the law is less clear and, in essence, the law looks to see if you acted reasonably in your assessment of the situation. Deadly force can only be used in situations where: 1) the defendant reasonably believed that he, or someone else, was in imminent danger of being killed or suffering great bodily injury; 2) the defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; and 3) the defendant used no more force than was reasonably necessary to defend against that danger. Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. If the defendant used more force than was reasonable, the killing was not justified.

Factored into that analysis in this case is the failure of the guard to throw the money away from himself, as he was trained, or to surrender it if he felt his life was in danger and he could. Our argument is that if he had followed his training, instead of creating a showdown with an unarmed man, the decedent would be alive, but because he did not “want to look like a punk,” he let his ego drive his actions.

It was a very emotional trial and raised many significant issues such as the failure of the armed transport company (Guarda) to provide any training to its couriers on how to deal with the mentally ill were raised. If nothing else, our work in this case will I'm sure to lead to training in that area so hopefully no one else will senselessly be shot. We will get a decision in about six weeks.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to

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