Case-by-Case: Defense of Self and Home

By C J Oakes

The defense of self and home has been considered for centuries to be common law deserving or respect and adherence. Spanning Continents and Nations, this common law concept that a person ought to be secure in their home or person has withstood many tests.

 English common law forms the basis for most common law in America (Lippman, 2010). This common law dates centuries, but in many cases, what is often referred to as common law finds a basis in the principles of common sense. Hence, these laws tend to withstand tests of time and are never abandoned; they may be adapted as circumstances dictate, but the underlying principles of the common law are maintained. 

Some have even referred to common law as a superior law (Lippman, 2010). Common law is the tool sometimes used by juries to nullify charges as happened with alcohol prohibition (Baum, 1996).  

English: Cover of the first edition of The Com...
 English: Cover of the first edition of The Common Law (Photo credit: Wikipedia)

However, because common law is based more on principle than on law, from time to time, common law may be modified to further serve the needs of society. Two cases in particular can provide a glimpse into how this occurs naturally. The two cases are PEOPLE V. CEBALLOS, 526 P. 2D 241 (CAL. 1974), OPINION BY: BURKE, J. and STATE V. HOBSON, 577 N.W. 2D 825 (WIS. 1998), OPINION BY: GESKE, J. Case-by-Case Defense

These two cases were selected because on the surface, the two appear similar; each case involves protection of self or property, valid from a common law perspective; but there are subtle differences that a codified law would fail to distinguish. Common law, by contrast, built upon principles can be flexible enough to distinguish between a common law defense and a crime. Notice first the defense of each. 

1. PEOPLE V. CEBALLOS – Defense of Home

The defense – Protection of property and home. Cebellos had been living in a garage and had noticed that someone had attempted to break into his home. He took steps to protect what little he possessed by rigging a .22 caliber pistol at the door.

When away, the vandals did return and this time managed to break in, only to find one shot in the face by the rigged device. The defense claim is that had Cebellos been home, he would have been within his right in shooting the intruder.

2. STATE V. HOBSON – Defense of Self

The defense – Protection of son/his rights. Shona Hobson was with her son when Beloit Police Officer Nathan Shoate arrived to interview her son regarding a stolen bike. The mother told him her son had nothing to do with the bike (in effect telling him that unless he had a warrant, he must leave) and when the officer demanded her arrest she fought, even striking another officer and was detained. Her defense was that the officer had no grounds on which to arrest and common law defends her right to resist. 

Just the Facts

The facts in each case allow a reasonable person the ability to determine the rightfulness of a judgment.


• Home had an attempted burglary the day before. • Cebellos was impoverished. • The device used was intended to protect home in the event Ceballos was not present. • The burglar that was killed had indeed been the one who made attempt the day earlier. • The burglars were teens looking for something to steal that they could fence to pay debts. • The California law that allows such a defense of the home only applies if there is danger to the lives of the dwellers from the burglary


• A bike was stolen. • A witness identified the Hobson child (age 5) as a rider of the bike recently. • Hobson parent refused police permission to interview her son. • Police arrested Shona Hobson for obstruction. • Hobson resisted and fought back. • Hobson made physical contact to one officer. • Police took both Shona Hobson and her five-year-old son into custody. • There was no legal basis for the initial arrest.

Excuses, Excuses

Whenever a law has been broken, the perpetrators certainly always come up with an excuse, whether one is presented or not. Courts however, do not have the convenience of simply listening to an excuse; the court must determine whether the story rendered is an excuse or a justification. The only difference between the two is intent, or mens rea, and the application of common sense. Looking first at the Cebellos case, the defendant in this case was Cebellos.

The court examined the facts and concluded that the law in California did not justify the use of a mechanized unit of home defense because such a device lacks the human element of judgment. In other word, the device will simply fire without concern for the reason someone is entering the dwelling. The person entering could just as easily be justified in being there such as a fire fighter or police officer entering in the line of duty.

In addition, the issues of Cebellos being poor; the burglars being young made no difference in the case. The only question in this case was whether life was in danger during the burglary; it was not. Therefore, the use of deadly force was excessive. Cebellos was offering an excuse. Looking at the Hobson case, the facts speak to a victory for Hobson. The police action of claiming an arrest based on obstruction was found to have no basis of authority. Police did not have such authority in this case.

Thus, the initial arrest was an illegal action by police. The initial attempted arrest led to resistance, which led to a subsequent arrest for resisting. Thus the court reasoned that had the first arrest not been illegally submitted, the second could not have resulted. Hobson’s actions in resisting were justified.

Further justification included the courts unwillingness to charge a mother with the natural act of defending her son. Indeed, the officers had no justification for taking her son and no good mother would have allowed the infringement. Thus, on this basis of common law or common sense, the court maintained justification.


Cebellos case revolved around a reasonable person’s conclusion that the device would and could cause bodily harm to a person as per California Penal Code and Cebellos himself was facing criminal charges. In the Case of Hobson, the court found that although common law does provide for the resisting of arrest when the arrest is invalid, common sense says that it is better today to simply allow the arrest. The background of that law reveals that when jail conditions were of the nature any time within could easily be a death sentence, resisting an unlawful arrest made sense.

Improvements and conditions in jails today coupled with the fact that police are better-equipped to stop resisters changes the act of resisting to one that makes little sense. Today, you simply bond out of jail (losing money in the process of course) and sort things out either with the District Attorney or in court. Finally, the same court admitted that although it has just stated that it would be best to allow the arrest, there may be times when to allow the arrest could be harmful, such as when the detention of a young child could cause psychological harm. In such a case, indeed, any parent would fight the unlawful arrest and rightfully so, according to the Wisconsin State High Court.  


  • Baum, D. (1996). Smoke and Mirrors: The War on Drugs and the Politics of Failure. : Brown Little.
  • Lippman, M. (2010). Contemporary Criminal Law: Concepts, cases, and controversies (2nd ed.). Thousand Oaks, CA: Sage Publications.