Arthur was walking through the parking lot to get to his car after work when suddenly a large man he’d never met before approached him, yelling angrily and waving his arms. Arthur, terrified and unsure what else to do, hit the threatening stranger and knocked him to the ground. A bystander called the police, who quickly arrived at the scene and charged Arthur with assault.
In the example above, it seems obvious that Arthur acted in self-defense and should not be penalized for protecting himself from an imminent threat. However, anyone facing an assault or battery charge for an act of self-defense will still need to prove that their actions were reasonable and that they had no other viable alternative.
Below are some potential steps you can take to argue that you acted in self-defense when charged with assault or battery. However, if you are planning to use this defense, you should contact an experienced assault lawyer who can help you prove that your actions were reasonable and justified by the level of the threat.
You Must Show That the Fear of Harm Was Reasonable
One of the first things you need to prove when you’re claiming self-defense is that any reasonable person in the same situation would have perceived an imminent threat of physical harm. If the person you allegedly assaulted was much smaller than you and wasn’t carrying any weapons, it might be hard to prove there was an immediate threat.
“Reasonable” is a somewhat vague, subjective term, but a good defense attorney should be able to make the court understand your perspective and your rationale for fearing harm. It may be possible to prove that you had reason to fear harm even if the other person claims they didn’t mean to hurt you—the defense hinges on your understanding of the situation, not the other person’s intent.
You Must Show There Was No Way to Retreat
Self-defense is supposed to be a last resort; that is, a judge and jury will want to see that you first made an attempt to avoid violence or call the police but determined that there was no way to safely escape. For example, if the threatening stranger from the original example placed himself directly in front of Arthur so that Arthur was trapped between the car and the stranger, self-defense may have been Arthur’s only reasonable way of protecting himself.
However, if there is a reasonable way for a person to escape harm, they have a “duty to retreat.” The exception to this is the Make My Day statute in Colorado, which is essentially an expansion of the common law “castle doctrine” that allows people to use physical force against an intruder on their property who is threatening harm.
You Must Show That Your Response Was Proportional
Another thing that you’ll have to be able to show was that your response was proportional to the level of the threat. For example, a judge would probably not look too favorably on someone who continued to punch someone after knocking them to the ground and removing the threat. However, you might be able to prove that this response was reasonable if the person continued to hit back after they were on the ground, or if they had threatened you with a deadly weapon. Essentially, you need to be able to show that you did not escalate the situation and that you did not continue causing the other person physical harm after they were no longer a threat. You will need to prove to the court why the other person remained a threat up until the point you stopped attacking them.
You May Still Have Acted in Self-Defense Even If You Struck First
One common misunderstanding about self-defense is that a person only truly acted in self-defense if they retaliated after someone else struck them. In reality, you have the right to defend yourself if there is good reason to believe that you are in immediate danger of serious physical harm. For example, if someone had their fists raised and was verbally threatening to hurt you, you would most likely be able to use self-defense as justification for hitting the person to eliminate the threat.
Work with your assault attorney to gather any concrete evidence that will help your case. If the altercation was caught on a security camera, that footage may be useful in showing exactly what happened. Eyewitness testimonies can also be valuable, if anyone saw the incident play out. Arguing self-defense can be successful, but only if you can provide solid proof that it was justified.
About the Author:
Kimberly Diego is a criminal defense attorney in Denver practicing at The Law Office of Kimberly Diego. She obtained her undergraduate degree from Georgetown University and her law degree at the University of Colorado. She was named one of Super Lawyers’ “Rising Stars of 2012” and “Top 100 Trial Lawyers in Colorado” for 2012 and 2013 by The National Trial Lawyers. Both honors are limited to a small percentage of practicing attorneys in each state. She has also been recognized for her work in domestic violence cases.
