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According to California Penal Code Section 197

197. Homicide is also justifiable when committed by any person in any of the following cases:
  1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or,

I thought that only a very few instances of grave personal threat justified lethal force. This section of law seems to say that it can be used to "resist" any felony. There are many felonies, but non-violent ones such as forgery I wouldn't think justified lethal force. Does this clause apply to nonviolent felonies?

(Inspired by an uneducated reading of this question: Am I allowed to kill a person threatening me? CA, USA)

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wedstrom
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3 Answers3

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No. The language in question dates from when "felony" denoted a much more serious class of crimes than it does today; traditionally, "felony" essentially meant "capital crime." Since then, California courts have narrowed the clause's meaning through caselaw. Incidentally, the provision in question appears in multiple state penal codes (it was a traditional common-law rule), and they have all restricted its meaning.

In 1961, a California appeals court considered this issue in People v. Jones (191 Call. App. 2d 478). The court ruled that

It is true that Penal Code, section 197, subdivision 1, does provide that homicide is justifiable when resisting an attempt to commit a felony. But the section does no more than codify the common law and should be read in the light of it. Taken at face value, and without qualification, it represents an oversimplification of the law today.

The authorities generally rely on Blackstone for the earliest expression of the rule. He rationalized it in terms of no killing being justified to prevent crime unless the offense was punishable by death. (4 Blackstone's Commentaries, pp. 180-182.) But in those days all felonies were capital offenses.

Perhaps the leading American case on the point is Storey v. State, 71 Ala. 329, 336-341, where the early law is reviewed and rejected, and the application of the rule limited to the commission of felonies that involve a danger of great personal harm, or "some atrocious crime attempted to be committed by force." This limitation is today generally recognized.

This case involved a violent felony (wife-beating), but it was a felony because the legislature wanted to punish what would otherwise be misdemeanor assault more seriously in a domestic setting. As such,

The punishment provided by a statute is not necessarily an adequate test as to whether life may be taken for in some situations it is too artificial and unrealistic. We must look further into the character of the crime, and the manner of its perpetration (see Storey v. State, supra). When these do not reasonably create a fear of great bodily harm, as they could not if defendant apprehended only a misdemeanor assault, there is no cause for the exaction of a human life.

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cpast
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    Taken at face value, and without qualification, it represents an oversimplification of the law today. - That's what I thought. Thanks for the very thorough answer! I will leave it unaccepted for now, so as not to discourage further input but this is very informative. Historical perspective of the term felon lends a lot more to the why of the thing. – wedstrom Aug 31 '15 at 21:12
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    The Supreme Court's decision in Tennessee v. Garner may also be of interest here insofar as it restricts the ability for the police, rather than "any person," to use deadly force against a fleeing felon. The opinion specifically discuses some of the history around historical vs. modern-day felonies. – Zach Lipton Sep 01 '15 at 06:37
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    FWIW, the failure of the legislature to redraft the statute with more accurate language to reflect the judicial gloss on that section of the statute after decades of discord between the plain language and the true meaning is a common and problematic feature of how legislatures tend to interact with statutes that is particularly dangerous now that more and more people have access to statutory texts over the Internet and aren't aware of the possibility of judicial narrowing of the meaning of words in statute. No good when someone relies on the plain language harming victim and the perp alike. – ohwilleke Dec 26 '18 at 23:05
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Not at all. First, the statute does not make it legal, nor does it mean that you can justifiably kill someone to prevent a felony. Rather, it is merely negates the clear and present danger, or direct self-defense prong if a felony is being committed and the criminal is killed. More simply put, a homicide (may be) found excusable if it occurs when someone kills another person during the commission of a felony, but it still must be proven that it was reasonable under the circumstances. So, by way of a non-violent crime example, consider drug dealing. Say I see John Doe in the process of a major drug transaction, exchanging (for example) a large amount of cash for bricks of cocaine, and he decides to approach me to ask me not to go to the police because it was the first time he'd ever done such a thing and he thought I looked like the understanding type. But,I freak out, think he is going to kill me and end I up killing him. That statute will afford me the ability to mount a defense for excusable homicide. The fact that I killed John Doe while he was committing a felony, in direct relation to the fact that I oversaw the criminal act, it will be part of the necessary prima facie showing needed to mount the defense of excusable homicide. It may be that it turns out the person is not guilty of murder, but the statute itself does not make murder during a felony legal.

gracey209
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  • Your answer answers half the question, that it is not "legal" per say to kill someone during a felony, but the main thrust of the question was how the law applies to nonviolent felonies (IE forgery). Could you reasonably mount a legal defense of lethal force against nonviolent felonies? – wedstrom Sep 02 '15 at 15:51
  • It can include any felony... Even non-violent ones if your killing of another person is seen as justifiable under the circumstances and a felony is being committed. – gracey209 Sep 02 '15 at 15:58
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    I would love to see a case where this defense was raised to justify homicide during a non-violent felony. E.g., "Look, he was halfway through forging my name on that document. If I hadn't killed him he might have finished it!" – feetwet Sep 02 '15 at 16:03
  • There are many scenarios that you could make up, envision, or that have happened-even if the crime was nonviolent ( more likely if violent), whereby someone ends up getting killed during the commission of a felony,. You would simply get the opportunity to claim justifiability. That's different than "is it legal". That is the point of my answer. It's not that it's legal... it's that a lawful defense to the act exists if a felony is being committed. It's not an absolute get out of jail free card. He is just a defense for justifiability – gracey209 Sep 02 '15 at 16:08
  • How about felony drug trafficking? Non-violent crime. You encounter me exchanging cash for bricks of cocaine. Absolutely no weapons present.. I drive after you to simply "ask" you not to tell on me. You think I'm going to kill you so you kill me. You have a defense for justifiable homicide even though the felony was a nonviolent. – gracey209 Sep 02 '15 at 16:13
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    It's really just an extension on self-defense, for situations when an overt act of aggression was not actually taking place but it was perceived due to the fact that there was a felony occurring. – gracey209 Sep 02 '15 at 16:15
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    You should extend your answer to include this example, and explain how it relates to the clause in 197.1. Would the legal defense relate to the fact it it was a felony, or that one had a reasonable fear of great personal harm, which is different. The difference between legal and potentially excusable is really important but to fully answer the question you need do explain how homicides in relation to nonviolent felonies are interpreted under the law. – wedstrom Sep 02 '15 at 16:27
  • I can do that. It's not that you can justifiably kill someone to prevent a felony, it's just it negates the clear and present danger, or direct self defense prong if a felony is being committed. I am walking into a meeting now, but I will edit it when I get back, or if someone else wants to they can edit it for me I am fine with that. While I was getting in my car just now, another non-violent felony where I can see homicide occurring is a prison break. Citizen aids guard, prisoner gets killed.... – gracey209 Sep 02 '15 at 16:33
  • It's not clear to me your examples apply to the highlighted clause: "Homicide is also justifiable ... when resisting any attempt ... to commit a felony...." If the felony has been committed (having seen a drug deal example) this doesn't seem to apply. And the question was about non-violent felonies, so a prison break or something involving potentially violent action isn't as interesting as, say, counterfeiting, forgery, or tax evasion. E.g., I find someone printing out counterfeit currency: Does this justify my homicide of them in that instant? What about when they're "attempting" to? – feetwet Sep 02 '15 at 21:48
  • Ok, so change it to as they jump in the car I shoot them... A prison break, or a drug deal are not violent crimes. They can involve violence, Gina, etc... But don't need to. It spelt illustrative. The point is, that is the intent of the statute, to give potential shelter to a person who kills another in the course of the felony. The question is where the non-violent component comes into play. I can think of tons of examples where this could occur. – gracey209 Sep 02 '15 at 21:53
  • That section cannot be read in isolation either, which is part of the problem with the question. If you are resisting a felony, it means as perpetrated upon you, or that you reasonably thought would be... Which implies the element of danger on resisting – gracey209 Sep 02 '15 at 21:56
  • I only amended my answer because the individual inquiring asked me to include the example from comments. – gracey209 Sep 02 '15 at 22:00
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The language of the law is clear and the circumstances around resisting "any felony", generally, justify the use of lethal force;

A felony is defined in PC 17 as punishable by death.

PC 196 and 197 both codify instances in which felonious behavior can be legally punished with death.

You can also look no further than article 1 section 1 of the CA constitution for the expressed right to protect property; for instance in the case of FELONY forgery.

A resistor is a victim and witness to an offense that carries substantial penalty (a felony is clearly defined, to this day, in the CA penal code as an offense punishable by death) therefore their life and property is endangered by the criminal actor in both an immediate and sustained condition, if the criminal is allowed to carry out the felony and continue felonious behavior, because the felonious actor risks death in the face of opposition and/or apprehension for the felony.

This argument might not be congruent with the other answers or the court decision the other response referenced, but those instances consist of homicide in resistance to acts that were questionable felonies, perhaps misdemeanors.

In your example, consider a person committing FELONY forgery and not heeding demands to cease the felonious behavior.

Forgery would be considered a felony and not a misdemeanor in instances in which the amount defrauded was greater than $950, or there was a pattern of organized criminal profiteering (for instance) but not necessarily in a single occurrence of petty coupon counterfeiting.

The expression of opposition to the felonious behavior makes the victim a threat to the criminal actor's freedom, interests, and life to the same extent any law enforcement officer would be, but without most of the protections and associations of law enforcement.

In fact, one could reasonably argue that merely being a witness to a felony endangers an individual enough to be justified in homicide, but THAT isn't codified in law.

Curtis Thornton
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    In future, please read other answers, especially those that cite relevant court decisions, and observe that this is not at all correct. –  Dec 24 '18 at 19:57
  • I updated the answer to point out that the other answers were examined and found faulty for you. – Curtis Thornton Dec 25 '18 at 14:20
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    By what means would the personal safety of a witness to a forgery be endangered? Can you provide any evidence that any judge in California has ever found that it is justifiable to kill someone to prevent a forgery? – phoog Dec 25 '18 at 18:44
  • I dont have immediate access to texts of historical cases, but the recent publicized cases all involve organized criminal profiteering, furthering the justification of homicide in resistance of felonious behavior and in protection of life, liberty, and property. In all practicality, opposition to organized criminal profiteering puts one in substantial danger, often witness protection is necessary. Note that homicide is justified in instances of felony forgery/fraud, not minor crimes – Curtis Thornton Dec 25 '18 at 22:20
  • Unfortunately, stories of witnesses being murdered are much more prevalent than criminal profiteers being killed by resistors. The point is made. – Curtis Thornton Dec 25 '18 at 22:32
  • On another note, justified homicide, for non violent felonies, is a defense used by law enforcement in instances too numerous to count. – Curtis Thornton Dec 25 '18 at 22:37
  • "found faulty" - well no, they haven't been. You make a totally unsubstantiated claim, arguing that the other answers are not correct because the cases they cite might will be were overturned, when they are referring to multiple distinct courts and jurisdictions all coming to the same conclusion: that "felony" is intended in the classic sense of direct violence only, and the provision in the law is only applicable to these types of crimes, making your answer plainly wrong. –  Dec 26 '18 at 01:05
  • Actually I deemed the first answer faulty because it referenced a case in which justified homicide was found to be an inappropriate defense in resistance to misdemeanor domestic violence and misdemeanor criminal threats. The question clearly asks whether homicide is justified in an instance of any felony. A felony is defined by california statute as punishable by death, that definition stands to this day. – Curtis Thornton Dec 26 '18 at 09:14
  • You can also look no further than article 1 section 1 of the CA constitution for the expressed right to defend property in the case of FELONY forgery. – Curtis Thornton Dec 26 '18 at 09:32
  • LOL, no, it isn't. The distinction between misdemeanor and felony in (almost all (?)) US jurisdictions is that the latter allows imprisonment for more than a year, or the death penalty. Individual laws are clear that not all felonies allow for the death penalty. Article 1 Section 1 has absolutely no such statement. Your answer is nonsense, based on either misunderstanding actual law or simply making it up. –  Dec 26 '18 at 20:02
  • ARTICLE 1 DECLARATION OF RIGHTS

    SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

     – Curtis Thornton Dec 26 '18 at 20:53
  • PENAL CODE - PEN PRELIMINARY PROVISIONS ( Preliminary Provisions enacted 1872. )
    17.
    (a) A felony is a crime that is punishable with death, by imprisonment in the state prison, or notwithstanding any other provision of law, by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.     – Curtis Thornton Dec 26 '18 at 20:55
  • CHAPTER 1. Homicide

    Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either—

    1. In obedience to any judgment of a competent Court; or,

    2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; or,

    3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest.

     – Curtis Thornton Dec 26 '18 at 20:58
  • Penal Code 197 PC - Justifiable homicide; any person. ("Homicide is also justifiable when committed by any person in any of the following cases: 1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; – Curtis Thornton Dec 26 '18 at 21:00
  • The law is clear, felonious behavior is punishable with death. Though other punishments may be administered when the criminal is held to answer in a court of law – Curtis Thornton Dec 26 '18 at 21:00
  • It should also be noted that the Clause any felony stands alone from resisting murder and or great bodily injury – Curtis Thornton Dec 26 '18 at 21:21
  • You realise that's an either-or-or statement, and definitely does not make all felonies have the death penalty, yes? I stand by my statement, your answer is based on a complete lack of comprehension of the law text. –  Dec 27 '18 at 06:02
  • You do realize that multiple statutes, already mentioned, codify circumstances in which it is permissible to execute a criminal engaged in felonious behavior, in accordance with the definition of felony. It seems youre not connecting the dots properly; statutes 196 and 197 both corroborate the first clause of the definition of felony; likewise the second clause of justified homicide is in accordance with section one of California's constitution. You havent made a valid counter argument. – Curtis Thornton Dec 27 '18 at 07:59
  • To spell it out plainly, a felony is defined as a crime punishable by death, (as detailed in pc 196::Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either.... When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest...and pc 197::homicide is also justifiable when committed by any person in any of the following cases: When resisting any attempt to...commit a felony) – Curtis Thornton Dec 27 '18 at 08:23