You are here

8.66 Firearms—Unlawful Possession—Defense of Justification

Printer-friendly version


The defendant claims that [he] [she] was justified in committing the crime of [specify unlawful possession offense charged]. Justification is a defense to that charge. The defendant is justified in committing the crime of [specify unlawful possession offense charged] if:

First, the defendant was under unlawful and present threat of death or serious bodily injury;

Second, the defendant did not recklessly place [himself] [herself] in a situation where he would be forced to engage in criminal conduct;

Third, the defendant had no reasonable legal alternative; and

Fourth, there was a direct causal relationship between the criminal activity and the avoidance of the threatened harm.

The defendant has the burden of proving each of the elements of this defense by a preponderance of the evidence.


The defense usually arises when a defendant is charged as a felon in possession of a firearm. It is based on the theory that criminal conduct may be justified if necessary to prevent a greater wrong. The defendant is entitled to the instruction when there is any foundation in the evidence. However, a mere scintilla of evidence supporting a theory of justification is not sufficient. United States v. Wofford, 122 F.3d 787, 789 (9th Cir.1997). The justification instruction should be given only in exceptional circumstances. United States v. Gomez, 92 F.3d 770, 774-75 (9th Cir.1996).

The burden is on the defendant to prove the elements of the defense. United States v. Beasley, 346 F3d 930, 935 (9th Cir.2003), cert. denied, 542 U.S. 921 (2004). Where the defendant is involved in illegal activities and his or her fear is a result of engaging in those activities, the justification defense is not permitted. United States v. Phillips, 149 F.3d 1026, 1030 (9th Cir.1998). 

Approved 5/2020