An assault (which in some jurisdictions is called a battery) is the intentional unwanted touching of another. The range of conduct that is covered by that definition is enormous; it can include annoying conduct such as someone poking your chest while they are yelling at you or can include sexual misconduct that does not rise to the level of an actual sex crime such as grabbing a woman’s breasts on the subway. The most common assault charges, though, result from a fight, and not every fight is a crime. Understand when striking someone not a criminal assault in San Diego.
Two officers are driving by a park when they see Mary push John causing him to fall. The officers immediately stop to separate them. A bystander named Max says she saw Mary push John from about 40 feet away but did not see what occurred just beforehand. Is someone going to be arrested? If so, who?
There are a number of situations that could have occurred which would not warrant an arrest, and certainly not a conviction, for the above incident. What if it was an accident? If Mary had been jogging in the park with John and her foot got caught on a branch, what very well could have looked like an intentional push may have been accidental. Just because there was a witness, doesn’t mean the witness saw what she thinks she saw. If the touching was accidental, an assault charge cannot be sustained because the requirement that the touching be intentional is not satisfied.
What if Mary and John take kickboxing classes together and were merely practicing in the park? Consent is a complete defense to the crime of assault because the requirement that the touching be unwanted cannot be sustained. Consent can come in the form of verbal consent (“Let’s box!”) or implied consent which is judged by one’s actions (such as the two squaring off, getting into position to have a sparring match, and choosing to engage in the conduct). An even more common example of consent would be a bar fight where two patrons decide to take it outside and engage in a physical altercation over a dispute. Keep in mind in that situation though, while the conduct cannot be assault, some states do have a prohibition against fighting in public which is referred to as the crime of mutual combat or disorderly conduct.
Even if Mary had intentionally pushed John against his will, she could still be protected from prosecution. Self-defense is a complete defense to the crime of assault. Merely pushing someone is non-deadly force. Non-deadly force can be used to protect oneself or another or even to protect property whenever a reasonable person would believe that the non-deadly force was necessary to defend against another’s imminent use of unlawful force or wrongful behavior. So, if John were about to grab Mary or try to harm her, Mary would be within her right to push him away in order to protect herself.
Though our example deals with Mary simply pushing John, in limited circumstances, even deadly force can lawfully be used for self-defense. Deadly force can be used when a reasonable person would believe that deadly force was necessary to prevent imminent death or great bodily harm to oneself or another. What if Mary was jogging in the park and John ran up to her with a knife in his hand screaming that he would kill her if she did not get into his van? If Mary had a gun in her pocket and was able to pull it out, point it at John and while Mary was trying to back away John charged her and she shot him, wouldn’t any reasonable person believe that her use of deadly force was necessary to prevent her from suffering great bodily harm?
Similarly, what if Mary was jogging in the park and saw John run up behind Max, hold a knife to Max’s throat, and demand Max to get in his van? If Mary had a gun in her pocket and was able to pull it out, point it at John and demand John let Max go but John instead tried to force Max into his van causing Mary to shoot him, wouldn’t any reasonable person believe that her use of deadly force was necessary to prevent Max from suffering great bodily harm? Both scenarios are examples where deadly force could lawfully be used. Keep in mind though, that with traditional self-defense a person who could retreat and safely run away would be required to do so before deadly force could lawfully be used. (Which is why in each example Mary did not immediately shoot, but tried to either back away or in the other example to demand John let Max go prior to using any deadly force.) Some jurisdictions are starting to do away with the traditional “duty to retreat” in favor of laws such as Florida’s Stand Your Ground law which has no such duty. However, the vast majority of jurisdictions still follow the traditional model.
The consequences of being accused of any act of violence can be devastating. Not every push, punch or even shooting is a crime. If you or someone you know has been charged with assault, contact an experienced San Diego assault lawyer who can determine whether your actions were unintentional, invited, or entirely excusable.
Title: When is Striking Someone Not a Criminal Assault? / Ashby Sorensen
Meta description: Criminal assault requires intent, and both consent and self-defense are valid defenses. Here are detailed examples of assault that is not criminal.