This week’s case comes out of California’s Court of Appeal, in a decision filed just last Monday (People v. Gregory). It involves two particularly interesting facets of self-defense law: a speculative threat, and provocation with intent. This week we’ll address the speculative threat, and we’ll address provocation with intent next week.

Late Night Party, Booze, Loud Music, Angry Neighbors

The case revolves around a late-night party in an apartment building, loud music, and alcohol. The Victim was entertaining several lady friends in his downstairs apartment, and the Defendant, who lives in an apartment above him, complained about the music volume. (It appears this was a warm-weather type of apartment building, with apartment entrances facing outside and stairways open to outside view.)

The exchange escalated into a lengthy verbal dispute, with the Defendant throwing disparaging remarks at the Victim’s lady friends, the Victim threatening to call the police, and both parties challenging the other to come upstairs or downstairs to settle matters, depending on their locations.

Bringing A Machete to a Mere Words Fight

The Victim decided to walk up to the Defendant’s apartment, and when he was a few steps short of the upper landing, the Defendant, standing on that landing, cut the Victim in the shoulder with a machete. The Victim would survive and testify at the Defendant’s trial. The Defendant would ultimately be convicted of assault with a deadly weapon, and would appeal that conviction on several grounds.

A Merely Speculative Threat is not an Actionable Threat

Clearly, cutting somebody with a machete constitutes a use of deadly force, which under California law can only be justified by a deadly force threat.

Importantly, the threat being defended against can’t be merely speculative. Too often I hear folks discussing a self-defense scenario and concluding to the effect of, “Well, I’d use deadly force against that guy, because for all I know he has a gun, for all I know he has a knife.” In other words, the other person’s possession of a gun or knife is not based on evidence. It’s speculation or imagination.

Narrative of Self-Defense Must be Evidence-Based

This, however, will not fly in court. At trial, every legal argument must be based on some evidentiary foundation, and every decision made in self-defense must also be based on some evidentiary foundation in order for that decision to be objectively reasonable (a mandatory requirement for a use-of-force to be lawful). A hypothetical or imagined or speculative threat will never be sufficient to justify force, and especially not deadly force.

Evidence in the Light Most Favorable to the Defendant

Unfortunately for the Defendant, the threat against which he defended himself is entirely speculative. The appellate court recites the evidence from trial on this issue as follows:

Defendant did not see anything in the victim’s hands or any weapons. He did not see the victim reach for anything or put his hands in his pockets. … [The Defendant told responding officers that he] was not sure whether the victim would hurt him, but that he could have a gun and probably had a weapon even though defendant did not see a gun and had not seen the victim with a weapon in the past. Defendant did not report the victim doing or saying anything that would cause him to fear for his life.

Defendant worried the victim could hurt him and might kill him. The victim was bigger than defendant and was wearing pants with pockets that puffed out, like he might have had a pistol holder in his front pocket. Defendant thought he might have a gun. … The victim did not speak as he approached. Defendant hit the victim with the machete when the victim was still on the stairs and within reach because he feared for his life, and it looked like the victim had a pistol in his pocket. … [The Defendant] never saw a gun, but did see an abnormal bulge that did not wrinkle, which he suspected was a gun.

Subjective Fear? Sure. Objectively Reasonable Fear? Not So Much

There’s probably little doubt that the Defendant here had a genuine, subjective fear of a deadly attack … but where’s the objective reasonableness? Where’s the evidence, from which a reasonable inference of a deadly force attack could be made?

The Defendant was “worried” about a deadly force attack. The Victim had puffy pockets in which he “might have had a pistol.” The Defendant believed the Victim “probably had a weapon,” even though the Defendant didn’t see a weapon then or earlier. Defendant “never saw a gun” but merely “suspected a gun.” The Victim did not even make threatening remarks as he approached the Victim. These facts support the probability of a likely verbal confrontation far more than they do a deadly force attack.

“For All I Knew He Could Have Had a Gun” Is Never Enough

This is a classic example of a case with no evidence capable of reasonably inferring a deadly force threat, even when that evidence is looked at in the light most favorable to the Defendant.

“Well, for all I know he could have a gun, he could have a knife,” is never going to be the basis for a lawful use of deadly defensive force. You need to be able to articulate an evidence-based rationale for why your inference of a gun or knife or other deadly threat was a reasonable inference under the circumstances. If your subjective belief, however genuine and held in good faith, is evidence free, it’s worthless in a court of law.

The Defendant’s conviction was affirmed.

In next week’s Case of the Week we’ll address the provocation with intent issues of this case.

To read this decision in its entirety, simply click here: People v. Gregory.


Learn more about self-defense law from Attorney Andrew F. Branca and Law of Self Defense LLC by visiting the Law of Self Defense Patreon page for both free and paid-access content, and by viewing his free weekly Law of Self Defense Show.