As I understand it, an “assault” is a credible threat of harming another, and “battery” is making contact. If someone explicitly threatens me, or swings a fist at me but misses, I’ve been assaulted. If they swing and hit me, they’ve committed assault and battery. I read that some jurisdictions combine A&B and call them “assault”.
Let’s say person X and person Y are conversing in a public place in the USA. Their talk is heated. Person X disparages person Y and turns to move away. Person Y grabs person X’s arm. Has person Y committed assault and battery? Person X reacts by striking person Y. Is that legitimate self-defense?
I am not considering my own involvement in a physical fray. I’m merely curious.
You’ve got the basic concepts. Going much further relies heavily on the law of the jurisdiction, the facts, the charging officer’s discretion, and the ability to persuade.
I don’t agree that common law assault is “attempted battery.” I could assault you by threatening you with a gun even if I happen to know that it is unloaded. And if I attempt to batter you and you aren’t aware of it, it’s not an assault.
This is certainly correct. Paradoxically, most states define common law battery as some form of “assault”. (Here in Colorado, a common law assault is rendered “menacing” under applicable statute).
You can typically only use as much force as is reasonably necessary to defend yourself, and can only use deadly force in response to a credible threat of deadly force.
Note that this transfers to another person, too, in that you can only defend somebody with as much force as they are legally allowed to use.
In Florida, “A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.” [s.s. 776.012(1)] (emphasis added).
For deadly force, a person is justified when, “using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.” [s.s. 776.012(2)]
I’d bet that most jurisdictions have vague concepts like “reasonably believes”, “reasonable person”, “necessary”, etc. There’s not going to be a matrix that lists the proper, specific response to various unlawful contact. It’s always going to depend. Ultimately, it may be up to a jury to decide.
IANAL, but – as I understand it, assault and battery has to have an element of perceived threat. If I pat you on the back, or poke you in the shoulder with an outstretched finger, that does not necessarily rise to the point of a crime. It depends on the heat of the discussion, circumstances, etc. If I try to walk away in a screaming match and you grab me, it’s pretty likely a reasonable fear that this is not the end of the physical contact.
But every such circumstance will end with the question - “sure, but what will the judge and jury think?”
The same applies with reasonable force to defend oneself. What is “reasonable”? Short answer - whatever the jury thinks is reasonable. It always (always!) depends on the circumstances. If you are 5’4" and the person confronting you is 6’4" and seems out of control, you might be justified in shooting them even if they are unarmed. The other way around, probably not. If you have been pushed to the ground and they are looming over you with steel-toed boots, maybe deadly force is appropriate.
Shooting someone in the back as they run away is very rarely acceptable self defence. that’s also another standard of self-defence - did you stop once the danger was passed? knocking someone to the ground might be self defence. Continuing to pummel then when they are curled up in a ball is simply a vicious assault (and battery) not defending yourself against aggression. Again, depending on what the jury believes.
IIRC, the special case of Treyvon Martin revolves around “Stand your ground” a feature of Florida law. The logical question to appropriate force for self defence is “why didn’t you just back off/run away?” With a stand-your-ground law, the aggrieved party is not obliged to run away or explain why they did not back off in order to invoke self-defense. Only two people know how the Trevon thing escalated, and only one of them is talking; but the upshot was apparently a cop-wannabe picked a argument/fight with an innocent teenager going home, and the upshot was that while (allegedly) on the losing end of the discussion on his back being punched he shot the guy. Logic tells me the stranger doing the following and confronting is not the one who is entitled to stand his ground, but then I wasn’t one of the jury.
but if you read the Wikipedia article, one comment sums it up - there is doubt who threw the first punch. I don’t know about your country, but in Canada I would hope if two people get into a fight, no matter who threw the first punch, the person who initiated the confrontation should not walk away free after shooting the other (unarmed) person.
It can depend on the individual being assaulted. I had an incident where a person grabbed my right hand, which is my only good hand. I responded by smacking her into a nearby building to make her let go of it. She responded by spitting on me, and I called her some choice words.
And she called the cops.
When I showed them my bad hand and said “My good hand was being assaulted and I was afraid it would be injured” they refused to file a report.
Most people have gotten it somewhat right. At common law a battery was a harmful or offensive touching. The test is what a reasonable person would consider offensive, absent knowledge that the individual at hand considers it offensive. So a pat on the back or a tap on the shoulder is not a battery even if it turns out that the person is hypersensitive, unless you had prior knowledge that the individual you patted on the back deems such pats to be offensive.
An assault is placing a person in reasonable fear of an imminent battery. So if I walk up to a person and punch them, I have committed both an assault and a battery because I committed a harmful touching and the person perceived that they were about to get punched, even if for a very short time.
As far as self-defense, a person is permitted to use force to repel an assault or battery, but may use only such force as is reasonably necessary.
All of this is an extremely fact intensive inquiry. A coach smacking a football player on the rear end while going into a game is different than a businessman smacking his secretary on the rear end.
Depending on the circumstances, what is reasonably necessary to repel a punch could vary from grabbing, punching back, or shooting the attacker. If a 95 year old feeble lady smacks me with her umbrella, a punch in return would be grossly disproportionate force. If Mike Tyson punched me, shooting him may very well be reasonable as anything less than that could have lethal consequences for me.
A Judge (or jury) could well find that the first ‘reasonable’ response from Person X would be to try to pull his arm out of Person Y’s grasp. But instead, he escalated the violence by striking Person Y. That may be going beyond the minimal self-defense response.
Any further discussion will depend on the actual details . Was one person significantly bigger or stronger than the other? Was one person much older than the other? And so forth. But just because the other person touched you first, doesn’t automatically make your response “legitimate self-defense”.
As others have said, that will be fact dependent. Are the attackers all first graders demanding ice cream? Are they escaped convicts grumbling about ripping your head off? Were you cornered, or in your car ready to drive off? Etc.
I had a recent case where a fight was caught on surveillance video. My client was the owner of a bar who had chased a belligerent drunk guy into the parking lot; the guy hadn’t paid and was too drunk to drive. The guy’s friend was about 6’10’ and 450 pounds. My guy was a slightly built Asian dude.
On the video, the big guy gets in my guy’s face and pushes him over. My guy then gets up, runs around the corner and grabs a brick, and throws it at big buy, resulting in a very bloody face and broken nose.
Self defense? We certainly raised it, and the size differential, coupled with the fact that my guy wasn’t an instigator, made it plausible. But running away to get the brick, and then coming back to throw it at the victim, potentially undermined the claim that he was acting defensively.
At the end of the day, it’s up to a jury to decide whether the conduct is reasonable, and that is going to be based on ambiguous criteria that the jurors are going to have to argue about.
Or, as in this case, it gets pled down to a misdemeanor with favorable probation terms.
There aren’t bright-line rules or safe harbors that will allow you to game the situation such that you can think “AHA, now that Person A had done X, I am free to do Y, regardless of the entirety of the situation.”
That’s what I find immoral about castle doctrine type rules—“AHA! Now that this person has entered my house, I may kill em with impunity!” That’s just wrong.
That’s not accurate. At common law prior to using deadly force a person was required to retreat, even in his own house. He must retreat “all the way to the back wall” of his house and only then may he use deadly force in self defense.
A castle doctrine law provides that you are not required to retreat in your own home, but it does not change the quantum of force that you may permissibly respond with. If deadly force is not reasonable under the circumstances you still cannot use it.
Closely related are “Stand Your Ground” laws which do not require a person to retreat from any place he has a lawful right to be. But once again, the force you use, deadly or otherwise, but remain reasonable to the threat imposed.
And the fact that Mr Zimmerman was armed and with the possibility of loosing this weapon weighed hugely in his defense when the Jury instructions “The Reasonable Man Rule” was read to the jury.
A terrible event and overshadowed by the POTUS and his VP adding their $0.02 through social media.
Then the special prosecuter bypassing the Grand Jury in a Stand Your Ground State!
This thread is not about the Treyvon Martin case. md2000, your bringing up the case was totally unnecessary, and the biased way in which you did it will earn you a Warning. Gbro, the fact that you were responding to another poster is a mitigating factor, and so you will not receive a Warning, but you should nonetheless not have continued the hijack. Any further discussion in this thread of the Treyvon Martin case will result in further Warnings.
