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Self Defense — Bringing A Gun To A Beer Bottle Fight?

Recently a man was convicted in Orange County California of murder. Essentially this Defendant was initially attacked by a group of gang members who chased him and threw beer bottles at him. In response the Defendant attacked the group who had initially assaulted him with a gun. He shot at the deceased and after wounding him, shot him again several times killing him. The issue for the jury became how far can one go in defending himself against an attack?

Self-defense is a right available to anyone in California. However, there are a few limitations. Usually, you can’t claim self-defense if you’re the one to start the fight. But, what if you don’t start the fight? In fact, what if you are simply attacked, but the person attacking you chose the wrong person to attack because it just so happens you have a gun. Can you shoot the attacker? The answer is probably not.

If attacked you don’t have to retreat. However, you have to use proportionate force to the assault being perpetrated on you. In other words you can only use the amount of force to defend yourself, that was used against you in the first place. If someone hits you with his fist you generally don’t have the right to use a gun in response. But, each case turns on its own facts. For example, if your attacker is much larger than you and you have a reasonable fear he is going to beat you to death or beat you until you are seriously injured you may very well be able to use deadly force to stop the attack.

In the case mentioned above, the defendant was a gang member. This may have played a role in the jury’s view of the situation. He also had a previous record of assault on a police officer. Make no mistake, depending on who you are and who represents you the end result may be very different. If a defendant doesn’t have a prior record, isn’t a gang member, and is one who the jury can identify with, the jury is much more likely to give that defendant the benefit of the doubt. It is the attorney’s job to make the facts come alive so that the jury feels the fear and understands the defendant did only what anyone would do to defend himself. That’s the challenge and the art of criminal defense.

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