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)

up vote 14 down vote accepted

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.

  • 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 1 '15 at 6:37

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.

  • 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 2 '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 2 '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 2 '15 at 16:03
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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 2 '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 2 '15 at 16:27

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