# CA Law: Can the State Charge you with Felony Murder for Defending Yourself with Brass Knuckles? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [December 19, 2017, 7:28pm UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877 "2017-12-19T19:28:36Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![madsircool](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/madsircool/32/3432_2.png) [@madsircool](https://boards.straightdope.com/u/madsircool)\ **Post date:** [December 19, 2017, 7:28pm UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/1 "2017-12-19T19:28:36Z")
Even if using them to defend yourself? In Ca, mere possession of brass knuckles is a felony. So, if you strike someone, even in self defense, can you be charged with felony murder? I ask not for myself because I am male and the system probably wouldn’t believe me anyway. But I have a friend who is 4 10 and weighs about 90lbs and she lives in a rough part of the barrio. I have tried to convince her that nothing good can come from possessing them. Maybe the chance of a 25-life prison sentence might convince her. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [December 19, 2017, 8:12pm UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/2 "2017-12-19T20:12:21Z")
You’d have to strike them and kill them, right? For felony murder someone has to be dead. ---
**Author:** ![Bear\_Nenno](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bear_nenno/32/3358_2.png) [@Bear\_Nenno](https://boards.straightdope.com/u/Bear_Nenno)\ **Post date:** [December 19, 2017, 8:29pm UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/3 "2017-12-19T20:29:02Z")
If California considers possession of brass knuckles to be an “inherently dangerous felony”, then yes, felony murder would apply if the friend kills someone while using the knuckles in self-defense. But “Penal Code section 21810is a “wobbler” – it can be either a felony or a misdemeanor” (Dane, 2010). I don’t think they could consider something to be an inherently dangerous felony, if the crime can also be a misdemeanor simply at the whim of the prosecutor. IANAL, though. [http://www.joedane.com/featured/california-law-on-brass-knuckles-metal-knuckles-and-composite-knuckles-orange-county-criminal-defense/](http://www.joedane.com/featured/california-law-on-brass-knuckles-metal-knuckles-and-composite-knuckles-orange-county-criminal-defense/) ---
**Author:** ![madsircool](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/madsircool/32/3432_2.png) [@madsircool](https://boards.straightdope.com/u/madsircool)\ **Post date:** [December 19, 2017, 9:17pm UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/4 "2017-12-19T21:17:01Z")
> [@Lemur866](#): > > You’d have to strike them and kill them, right? For felony murder someone has to be dead. Yes. I was wondering if it could be felony murder if you used the brass knuckles but solely for defensive purposes; but you managed to get a clean head shot and the aggressor died from bleeding from the brain? ---
**Author:** ![madsircool](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/madsircool/32/3432_2.png) [@madsircool](https://boards.straightdope.com/u/madsircool)\ **Post date:** [December 19, 2017, 9:18pm UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/5 "2017-12-19T21:18:22Z")
> [@Bear\_Nenno](#): > > If California considers possession of brass knuckles to be an “inherently dangerous felony”, then yes, felony murder would apply if the friend kills someone while using the knuckles in self-defense. But “Penal Code section 21810is a “wobbler” – it can be either a felony or a misdemeanor” (Dane, 2010). I don’t think they could consider something to be an inherently dangerous felony, if the crime can also be a misdemeanor simply at the whim of the prosecutor. > IANAL, though. > [http://www.joedane.com/featured/california-law-on-brass-knuckles-metal-knuckles-and-composite-knuckles-orange-county-criminal-defense/](http://www.joedane.com/featured/california-law-on-brass-knuckles-metal-knuckles-and-composite-knuckles-orange-county-criminal-defense/) Thank you for the response. It was my understanding that the wobbler status only applied to composite or hard wood knuckles? ---
**Author:** ![kayaker](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kayaker/32/441_2.png) [@kayaker](https://boards.straightdope.com/u/kayaker)\ **Post date:** [December 19, 2017, 9:30pm UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/6 "2017-12-19T21:30:45Z")
What if they aren’t brass knuckles, but are used as brass knuckles? [Like this bottle opener, for instance.](https://www.empiretactical.org/custom-us-made-tactical-gear/the-cnc-machined-brass-knuckle-bottle-opener) ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [December 19, 2017, 11:43pm UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/7 "2017-12-19T23:43:39Z")
As a juror, I’d have a hard time believing that getting out the brass knuckles and putting them on your hand is not clear evidence of premeditation, which would argue against a self-defense argument. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [December 20, 2017, 12:03am UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/8 "2017-12-20T00:03:08Z")
> [@t-bonham@scc.net](#): > > As a juror, I’d have a hard time believing that getting out the brass knuckles and putting them on your hand is not clear evidence of premeditation, which would argue against a self-defense argument. Aside from the illegality of brass knuckles, how is that different from any other weapon? ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [December 20, 2017, 12:10am UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/9 "2017-12-20T00:10:15Z")
If you put that bottle opener on your hand and hit someone with it, the court is going to call it a brass knucks. The law doesn’t actually care about “loopholes” like that. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [December 20, 2017, 12:12am UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/10 "2017-12-20T00:12:18Z")
> [@Chronos](#): > > If you put that bottle opener on your hand and hit someone with it, the court is going to call it a brass knucks. The law doesn’t actually care about “loopholes” like that. Doesn’t help that the manufacturer calls them brass knuckles themselves. ---
**Author:** ![samclem](https://avatars.discourse-cdn.com/v4/letter/s/a9a28c/32.png) [@samclem](https://boards.straightdope.com/u/samclem)\ **Post date:** [December 20, 2017, 12:57am UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/11 "2017-12-20T00:57:02Z")
Short of the California Supreme Court responding to this thread, we can move this to IMHO rather than General Questions. Let the amateurs roll! ---
**Author:** ![madsircool](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/madsircool/32/3432_2.png) [@madsircool](https://boards.straightdope.com/u/madsircool)\ **Post date:** [December 20, 2017, 1:36am UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/12 "2017-12-20T01:36:59Z")
> [@kayaker](#): > > What if they aren’t brass knuckles, but are used as brass knuckles? > > [Like this bottle opener, for instance.](https://www.empiretactical.org/custom-us-made-tactical-gear/the-cnc-machined-brass-knuckle-bottle-opener) I’d imagine a cop would see them as a weapon…if he was so inclined. ---
**Author:** ![Telemark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/telemark/32/372_2.png) [@Telemark](https://boards.straightdope.com/u/Telemark)\ **Post date:** [December 20, 2017, 2:03am UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/13 "2017-12-20T02:03:10Z")
> [@madsircool](#): > > In Ca, mere possession of brass knuckles is a felony. So, if you strike someone, even in self defense, can you be charged with felony murder? If you use them in self defense, it wouldn’t be murder, would it? The act of defending yourself should be legal, even and up to killing your attacker if the threat supports a violent response. You might be guilty of something else, but I can’t see how it would be felony murder. IANAL by any stretch, so let’s see if some lawyers can demolish that line of reasoning. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 20, 2017, 2:12am UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/14 "2017-12-20T02:12:13Z")
> [@Bear\_Nenno](#): > > If California considers possession of brass knuckles to be an “inherently dangerous felony”, then yes, felony murder would apply if the friend kills someone while using the knuckles in self-defense. But “Penal Code section 21810is a “wobbler” – it can be either a felony or a misdemeanor” (Dane, 2010). I don’t think they could consider something to be an inherently dangerous felony, if the crime can also be a misdemeanor simply at the whim of the prosecutor. > IANAL, though. > [http://www.joedane.com/featured/california-law-on-brass-knuckles-metal-knuckles-and-composite-knuckles-orange-county-criminal-defense/](http://www.joedane.com/featured/california-law-on-brass-knuckles-metal-knuckles-and-composite-knuckles-orange-county-criminal-defense/) I am also not a lawyer, but I would have a hard time seeing possession of a weapon to be inherently dangerous. Shooting a gun is inherently dangerous. Setting a fire is inherently dangerous. Wearing brass knuckles? No more inherently dangerous than possessing a gun or matches… until they are used. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [December 20, 2017, 2:23am UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/15 "2017-12-20T02:23:07Z")
Most states exclude criminal assault from the list of felonies that trigger the rule. It has to be a separate felony, whereas a beating just “merges” into the homicide. ---
**Author:** ![kayaker](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kayaker/32/441_2.png) [@kayaker](https://boards.straightdope.com/u/kayaker)\ **Post date:** [December 20, 2017, 12:19pm UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/16 "2017-12-20T12:19:51Z")
> [@running\_coach](#): > > Doesn’t help that the manufacturer calls them brass knuckles themselves. Shhhhh! This pipe for use with tobacco only! ---
**Author:** ![Bear\_Nenno](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bear_nenno/32/3358_2.png) [@Bear\_Nenno](https://boards.straightdope.com/u/Bear_Nenno)\ **Post date:** [December 20, 2017, 4:28pm UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/17 "2017-12-20T16:28:12Z")
> [@Tom\_Tildrum](#): > > Most states exclude criminal assault from the list of felonies that trigger the rule. It has to be a separate felony, whereas a beating just “merges” into the homicide. Correct. But in the case of the OP, the possession of the brass knuckles alone would be the separate felony. Of course, as I pointed out, in the case of California, brass knuckle possession is not always a felony. In a state where they are _always_ a felony to possess, it is very likely the scenario in the OP would result in felony murder. There are plenty of examples of case law throughout the country where someone is in felony possession of a firearm, and then accidentally kill a friend or other person. Such as a hunting accident, or a negligent discharge while cleaning it. Since the individual was committing a felony (unlawful possession of a firearm), the death from the accidental discharge results in a felony murder conviction. Usually the unlawful possession is due to the person being a convicted felon. Other times it is due to being unregistered in a city or state which requires registration. ---
**Author:** ![Bear\_Nenno](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bear_nenno/32/3358_2.png) [@Bear\_Nenno](https://boards.straightdope.com/u/Bear_Nenno)\ **Post date:** [December 20, 2017, 4:32pm UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/18 "2017-12-20T16:32:56Z")
> [@Telemark](#): > > If you use them in self defense, it wouldn’t be murder, would it? The act of defending yourself should be legal, even and up to killing your attacker if the threat supports a violent response. You might be guilty of something else, but I can’t see how it would be felony murder. > > IANAL by any stretch, so let’s see if some lawyers can demolish that line of reasoning. You need to understand the Felony Murder rule to get what the OP is talking about. A person who is engaging in an inherently dangerous felony can be charged with murder if a death results from the felonious act. It doesn’t matter if the death is in self-defense. And it almost always doesn’t matter if someone else actually did the killing. For example, if you rob a bank with your buddy, and the security guard shoots and kills your buddy during the robbery, you can be charged with felony murder even though you didn’t do the killing. Similarly, if you are in possession of a machinegun that is illegal in your state, and you use that machinegun in self-defense, you can be charged with felony murder. If you accidentally discharge your illegal machinegun into your best friend, you will be charged with felony murder, not negligent homicide or manslaughter. ---
**Author:** ![Telemark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/telemark/32/372_2.png) [@Telemark](https://boards.straightdope.com/u/Telemark)\ **Post date:** [December 20, 2017, 6:11pm UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/19 "2017-12-20T18:11:22Z")
> [@Bear\_Nenno](#): > > Similarly, if you are in possession of a machinegun that is illegal in your state, and you use that machinegun in self-defense, you can be charged with felony murder. Good thing IANAL, then, right? This would seem to exactly parallel the case in the OP. I assume there are actual cases like this; it’s not just a hypothetical? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [December 20, 2017, 8:17pm UTC](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877/20 "2017-12-20T20:17:24Z")
Felony murder in CA is only triggered in the commission of certain felonies, not all felonies. Mere possession of an illegal weapon is not one of those felonies, and therefore the felony murder rule wouldn’t come into play. From the [jury instructions:](https://www.justia.com/criminal/docs/calcrim/500/540a.html) > [@](#): > > 540A.Felony Murder: First Degree—Defendant AllegedlyCommitted Fatal Act (Pen. Code, § 189)The defendant is charged [in Count] with murder, under atheory of felony murder.To prove that the defendant is guilty of first degree murder under thistheory, the People must prove that:1. The defendant committed [or attempted to commit]\;2. The defendant intended to commit \;AND3. While committing [or attempting to commit] ,\ the defendantcaused the death of another person.A person may be guilty of felony murder even if the killing wasunintentional, accidental, or negligent.To decide whether the defendant committed [or attempted to commit]\, pleaserefer to the separate instructions that I (will give/have given) you on(that/those) crime[s]. You must apply those instructions when you decidewhether the People have proved first degree murder under a theory offelony murder. [Section 189](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=189.)that is referred to above says this: > [@](#): > > 1. > > All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree. So possession of brass knuckles are not a DD, explosive, WMD, armor piercing ammo, poison, lying in wait, etc. It is also not the other specific crimes listed. Even if that were not true, a successful defense against a murder charge based on self defense would not be contingent on legally possessing a weapon. The elements of self defense don’t contemplate how the self defense weapon was acquired. A person could be charged with illegal possession independent of the self defense defense. [Next page](https://boards.straightdope.com/t/ca-law-can-the-state-charge-you-with-felony-murder-for-defending-yourself-with-brass-knuckles/804877.md?page=2)