Do You Know the Difference Between Assault and Battery? - Part 3

Robert Ingalls: Sure. Now, I don't want to put you on the spot, but a question that I have is, let's say you're in a bar, and somebody slugs you. In that moment, do you have the ability to defend yourself inside the law?

Bill Powers: Well, you have a limited ability to defend yourself and prevent further injury. Unfortunately, what happens, I see as a practical matter, is that it escalates or goes something further. And there may be times where you have a duty to retreat, even though that doesn't seem particularly fair. So do you get a free punch back, meaning, "Well, he started it"? Not necessarily, because even if you're not charged with assault, you may be charged with willfully engaging, and I promise you, they don't just look ... when I say "they", the courts and the district attorney's office in deciding whether to prosecute a matter or indict a matter, take it to a grand jury ... they are not just going to look at who threw the first punch. They're going to look at the background that got you to that point.

So for example, let's say that you used a fighting word ... and these are terms of art, comes from common law ... you use a certain word that is meant to evoke, in a common parlance, people know that that's going to evoke a visceral or physical response, and I punch you. Now, this is something you don't see as much anymore. I mean, we're not dueling one another, but this is the logic, where it came from. And I punch you in the nose, as an example, and the jury may say, "Well, he kind of deserved it," or-

Robert Ingalls: He's asking for it.

Bill Powers: "That was a normal, customary reaction." We get into these more normally, not in insults of character or honor, but defending someone else.

Robert Ingalls: Yeah, and that was a question I had as well. Let's go back to that same club, and you're walking through with your wife, and somebody reaches out and puts their hands on her.

Bill Powers: Right, then that may be more of a justification, and legal justifications as defenses work as long as the jury says it was necessary and proper, and you used the force in extent necessary to effectuate that defense. And you have to be right.

Robert Ingalls: So there's a good chance you're still going to find yourself in court?

Bill Powers: Well, you may.

Robert Ingalls: But you may have good defenses.

Bill Powers: Right, and what I see as a practical matter happen is that several people get cuffed, and then we're pointing fingers at one another in court.

Robert Ingalls: We sort it out later.

Bill Powers: Right, right.

Robert Ingalls: And that brings me to my last question, is ... We talked about a couple defenses just now. Are there other defenses to assault and battery?

Bill Powers: Sure. Well, let's assume, the biggest one is you didn't do it, so that's always-

Robert Ingalls: The Shaggy defense, "Wasn't me."

Bill Powers: Yeah, "It wasn't me." Or "Are you going to believe me or your lying eyes?" kind of deal. Yes, there are defenses, but they're hyper-technical in nature, and frankly, a lot of these assault and battery cases are heat of passion, heat of the moment, you know, I didn't really have time to think. And so when you're engaged in one of these circumstances ... and we oftentimes see them made even more serious and complicated by the consumption of alcohol or drugs, people aren't acting as they normally would ... are you really taking the time to think, "Well, I'm going to use the force reasonably necessary to defend somebody," or "You grab my significant other, do I get to punch you in the face?"

My experience has been that law enforcement try to do a couple things right off the bat. One, they will respond quickly, to make sure it doesn't escalate. Two, they want to make sure that other people in the area don't get hurt, because you've got these uncontrolled people flailing around. And third, they don't want to get injured in the process of subduing people, and so you want to put a stop to the situation. You want to get it calm, and sometimes that necessitates taking people out of the circumstances, handcuffing them, maybe put them in the back of a patrol car, maybe, if they think it's appropriate, arresting them. And that is the best way to separate or defuse the situation.

I want to be fair about this. I have seen in my 25-year career now a major difference in attitude of law enforcement for defusing situations, as opposed to escalating situations, especially in the Charlotte-Mecklenburg area. I have to compliment law enforcement in training, whether it's CMPD, Charlotte-Mecklenburg Police, or the sheriff's department. They have really become quite good at calming things down, getting control of the situation, enforcing the law. But I really have not seen near as much of escalation by law enforcement, and I think people say, "Oh, that never happened." Yeah, it did. Years ago, you used to see it. I don't see that anymore. I'm really kind of proud of that. I'm sure there are circumstances, I'm sure ... People are human, as well, that wear badges. But it's really changed a lot.

<< Part 2 | Part 4 >>