My eldest son, who's 16, was hanging out with a couple of friends in the evening a week or so ago (yes, I know that violates the quarantine rules; I'm a terrible parent) when I received a call from the group. They were in the midst of a vituperative argument about under what circumstances it was permissible to shoot someone in defense of your property, and wanted to know from a "lawyer" the correct answer. On the theory that teenagers arguing about deadly force was better than teenagers hitting a crack pipe, I took the call and explained the answer (at least in California) as best I could.
Now I can tell them to just read today's opinion.
Justice Raphael is technically talking about when it's permissible to brandish a weapon (rather than use it), but it's basically the same rule, since if you can't permissibly use a weapon, you're not allowed to brandish it either. He does an outstanding job of both articulating the rule as well as explaining why that particular rule exists. He hits the same themes that I explained to my son: that you can use deadly force to prevent death or serious personal injury to yourself or others, but you generally can't use it solely to protect property. Even if that property's yours and even if the other party is doing something unlawful. Both because we (1) value lives more than property, and (2) fear that pulling a gun in a property dispute risks escalating the matter and putting the lives of both parties at risk (e.g., the other side pulls their gun too).
Today's case is a prototypical example (albeit, fortunately, one that doesn't escalate). Neighbors are fighting over a common fence. One neighbor wants to tear it down and replace it; the other doesn't. The police are called, and tell 'em it's a civil matter, and that they should mellow out an resolve it informally, or, if not, in civil court. The police then leave, but before the officer even gets a block away, one of the neighbors pulls a shotgun and brandishes it at the other neighbor.
The jury convicts of misdemeanor brandishing. And the Court of Appeal affirms, holding that even if the one neighbor was doing something wrong in tearing down a fence he shouldn't, that doesn't allow the display of deadly force.
Which is a pretty accurate assessment of the relative values, I think.
Justice Raphael indicates that there may be an exception for "home invasion" situations, but he doesn't articulate the scope of that exception much -- which is not surprising, because that's not at issue on these facts. Anyway, remember the general rule: No deadly force just to protect your (or others') property. Even against improper or criminal destruction or theft of that property.
There's also a neat little portion of the opinion at the end about a very tangential matter; whether the shotgun at issue contained birdshot or buckshot. Didn't matter to the result, but it was interesting to see that matter addressed by individuals (and I include myself in this category) more familiar with legal doctrine than with the intricacies of how shotgun pellets work.
The issue arose because "In the morning after the
People rested its case, but before Chen began his, the People sought to reopen to clear up
a point of potential confusion. [Police Officer] Weber had originally testified that she believed the
ammunition retrieved from Chen’s shotgun was birdshot, even though the prosecutor
personally believed it was buckshot based on personal experience and the information
printed on the shells. The People wanted to reopen to allow Weber to clarify because
they believed there was “a good chance that one juror or more . . . will know the difference and it will be this funky thing where the evidence says one thing and they
think it’s something else.” The trial court allowed the People to reopen and Weber
testified that, since her prior testimony, she had come to believe the ammunition could
potentially be buckshot. Weber also testified that she refers to ammunition as birdshot
whenever it contained pellets, even if doing so may be inaccurate."
None of this matters to a brandishing charge, since it doesn't matter what pellets the shotgun contains for such a crime (or even whether the shotgun is loaded or not). The opinion said that the parties seemed to agree that "buckshot . . . is more dangerous than birdshot." Which I suspect is true, but there's apparently a huge debate as to whether buckshot or birdshot is more dangerous (or better) in a home defense scenario.
Though I doubt this topic is unlikely to be the next conversation piece of my teenage sons and his friends. Though perhaps it would have been had he grown up in Virginia (like me) or North Carolina (like my wife).
