Criminal Law

509. Justifiable Homicide: Non-Peace Officer Preserving the Peace

The defendant is not guilty of (murder/ [or] manslaughter/ attempted murder/ [or] attempted voluntary manslaughter) if (he/ she) (killed/attempted to kill) someone while preserving the peace. Such (a/an) [attempted] killing is justified, and therefore not unlawful, if:

1. The defendant committed the [attempted] killing while lawfully (suppressing a riot/keeping and preserving the peace);

2. The defendant had probable cause to believe that <insert name of decedent> posed a threat of serious physical harm, either to the defendant or someone else;


3. The [attempted] killing was necessary to lawfully (suppress a riot/keep and preserve the peace).

A person has probable cause to believe that someone poses a threat of serious physical harm when facts known to the person would persuade someone of reasonable caution that the other person is going to cause serious physical harm to another.

[A riot occurs when two or more people, acting together and without legal authority, disturb the public peace by use of force or violence or by threat to use force or violence with the immediate ability to carry out those threats.]

[A disturbance of the public peace may happen in any place of confinement. <insert name of detention facility> is a place of confinement.]

The People have the burden of proving beyond a reasonable doubt that the [attempted] killing was not justified. If the People have not met this burden, you must find the defendant not guilty of [attempted] (murder/ [or] manslaughter).

Bench Notes

Instructional Duty

The court has a sua sponte duty to instruct on justifiable homicide when "it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case." (See People v. Breverman (1998) 19 Cal.4th 142, 156 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [addressing sua sponte duty to instruct on self-defense].)

Related Instructions

CALCRIM No. 507, Justifiable Homicide: By Public Officer.

CALCRIM No. 508, Justifiable Homicide: Citizen Arrest (Non-Peace Officer).


Justifiable Homicide to Preserve the Peace. Pen. Code, §§ 197, subd. 4, 199.

Lawful Resistance to the Commission of an Offense. Pen. Code, §§ 692-694.

Riot Defined. Pen. Code, § 404(a).

Burden of Proof. Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th 1148, 1154-1155 [10 Cal.Rptr. 217].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, §§ 80-86.

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, § 73.14 (Matthew Bender).

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.01[1][b] (Matthew Bender).

Related Issues

Person Using Force Must Fear Imminent Death or Bodily Injury

"Deadly force may not be used to prevent the escape of an apparently unarmed suspected felon unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." (Tennessee v. Garner (1985) 471 U.S. 1, 3, 11 [105 S.Ct. 1694, 85 L.Ed.2d 1].) "Garner necessarily limits the scope of justification for homicide under section 197, subdivision 4, and other similar statutes from the date of that decision." (People v. Martin (1985) 168 Cal.App.3d 1111, 1124 [214 Cal.Rptr. 873].)

(New January 2006)