Assault and Self Defense

The Best Defense is Self-Defense When Defending Assault Allegations

Whether you are accused of Assault in the first, second, third or fourth degree, self-defense[1] is your best defense against the allegation. For most accused crimes, general denial of the crime is best because the burden remains on the the prosecutor to prove each element beyond a reasonable doubt. When a defendant claims an affirmative defense, like alibi, duress or unwitting possession, the defense attorney must now prove to the jury, usually by a standard of more likely than not, that the affirmative defense applies. However, when the defense puts forth “any evidence” of self defense than the burden shifts to the prosecutor to disprove the self defense beyond a reasonable doubt. Add to this the “castle doctrine,” or No Duty to Retreat legal standard, that exists in Washington and this may very well be the strongest legal position that exists in Washington law. Further, if the State is bringing the charge and the jury does find the defendant not guilty by virtue of self defense than the defendant can receive reimbursement for the cost of his legal defense[2]. Thus, self defense is the best defense when defending against assault allegations.

Assault law in the State of Washington derived from the common law for assault and battery. Traditionally assault was putting someone in fear and battery was actually striking them. Now the two crimes, along with attempted battery (trying or intending to strike another but missing) have been merged into assault. WPIC 35.50 [3]. So assault is, at a minimum for battery, any harmful or offensive touching, but also can be as little as putting someone in apprehension (fear) of bodily harm.

The degree of the Assault is usually attributable to the degree of bodily harm. Assault 4[4] is the most common as we think of the usual punch, push or even spit (offensive). However, some punches, particularly strikes to the head, risk substantial bodily harm and can be charged by a prosecuting authority much more aggressively. Assault 4 is the most common basis for a domestic violence allegation. Even the fairly socially acceptable grabbing, holding, restraining and slapping we see in our movies and television would be a domestic violence allegation of assault 4.

Assault 3[5] usually has to do with the class of the victim, most commonly law enforcement. It should be noted that you do not even need to know that you are striking law enforcement. An undercover cop who gets hit still makes his assailant liable for an assault 3 charge. Firemen, bus drivers, other transit workers including ferry workers, judicial officers, pretty much anyone in a courthouse, doctors and nurses while performing their duties are also some of the other specially protected classes. Shooting a peace officer with a stun gun is Assault 3. Assault 3 can also be based on criminal negligence depending on the injury.

Assault 2 is of special note because it is a strike offense[6] as in 3 strikes and you are out—a life sentence without possibility of parole. The most common bases for an assault 2 is strangulation (any time someone’s breathing is temporarily cut off. Obviously if you finished strangling them than that would be murder). Also, any broken bone will likely be charged as assault 2[7]. I have two cases right now, one with a broken finger and the other with a broken bone in the hand. I have never had an assault 2 based on a broken toe but I am sure there are plenty of prosecutors out there who would charge it if they get the chance. Assault 2 is also using a deadly weapon (think club or knife as a firearm usually gets you assault 1). Poison or other noxious substances also can be charged as Assault 2. I had a case where a woman supposedly threw bleach on another woman and was charged with assault 2. Assault with the intent to commit a felony is assault 2. Waterboarding would be an assault 2 but I have not yet had the privilege of defending our CIA operatives.

That leaves us with our most serious of assaults, assault in the first degree[8], effectively attempted murder, usually reserved for when someone shoots (non-fatally) or attempts to shoot another person. Aggressive prosecutors have charged merely brandishing a firearm as assault 1. This can done because assault 1 is defined as assaulting another while having the intent of causing great bodily injury. If you were paying attention you recall that assaulting another can arise just from placing them in fear. So brandish a firearm can place them in fear. A gun can cause great bodily injury. The prosecutor leaves it to the jury to infer the intent to cause harm.

Self-defense can defend against all degrees of assault. That said, the use of force must be reasonable. One cannot pull out a gun and fire because someone merely pushed you. Generally, reasonable force is defined as force equivalent to the force with which you were threatened. So if someone threatens you with a gun then you can pull out a gun. But if they push you then all you can do is push back. There is a little leeway here in interpretation. If someone pushes or punches you then you could likely restrain them. However, you should refrain from restraining them in a choke hold. Most of us saw ConAir where he (Nicholas Cage’s character) was convicted because, even though all he did was fight back, his degree of training was determined to be an escalation of the degree of force. It may well come down to the jury deciding if the use of force was reasonable. All the more reason to get an excellent defense attorney.

It should be noted that Self-Defense can also include defense of others and/or property. You are allowed to defend your spouse, children and even complete strangers. You can defend pets, technically property under the statute, although pets are virtually people in many peoples’ lives these days. As noted above, a jury is often deciding these issues. Needless to say, the greater the emotional connection and vulnerability of the person you are defending (children and the elderly being examples) the more likely the jury is to find that your use of force was justified.

Procedurally, you are entitled to a self defense (or defense of others/property) legal instruction to the jury if any evidence is presented of self defense. This means the accused does not even need to testify, the decision to testify or not is reserved to the accused, to present this defense. If a witness or even the alleged victim puts forward information that the accused was legally using force, the accused can be spared cross-examination. Sometimes it is best to tell your side of the story through others.

Lastly, a legal defense, especially to the more serious classes of assault, can be quite costly. Reimbursement can be ordered if you are found not guilty by virtue of self defense to an assault allegation. This includes all the costs of your defense. At a minimum this includes all reasonable legal costs. You would think this potential might act as a deterrent for prosecutors in cases that are not clear cut. However, my experience is that most government employees behave as if cost is never an issue. An unfortunate attitude since it is our tax dollars inevitably at stake here. That said, at least you might not be stuck with the cost of defending yourself from an assault and an assault allegation.

So, while assault is a serious allegation (and we did not even discuss the added consequences if your assault is designated as domestic violence) there are certainly steps that can be taken to defend against assault charges. Self defense and defense of others and/or property is certainly the best of these. However, there are other possible defenses or proof problems for the prosecution even if these defenses are not available to you. Like self defense being the best legal defense available against your assault allegation, Smith & White, PLLC is the best legal defense firm available to you. Call or email right away for a free consultation.

[1] Self Defense WPIC 17.02.

[2] RCW 9A.16.110 Defending against violent crime—Reimbursement.

(1) No person in the state shall be placed in legal jeopardy of any kind whatsoever for protecting by any reasonable means necessary, himself or herself, his or her family, or his or her real or personal property, or for coming to the aid of another who is in imminent danger of or the victim of assault, robbery, kidnapping, arson, burglary, rape, murder, or any other violent crime as defined in RCW 9.94A.030.

(2) When a person charged with a crime listed in subsection (1) of this section is found not guilty by reason of self-defense, the state of Washington shall reimburse the defendant for all reasonable costs, including loss of time, legal fees incurred, and other expenses involved in his or her defense. This reimbursement is not an independent cause of action. To award these reasonable costs the trier of fact must find that the defendant's claim of self-defense was sustained by a preponderance of the evidence. If the trier of fact makes a determination of self-defense, the judge shall determine the amount of the award.

[3] Assault Definition.

[4] RCW 9A.36.041. WPIC 35.25.

[5] WPIC 35.20. Assault 3.

Assault 3 RCW 9a.36.031.

[6] Persistent Offender.

[7] RCW 9A.36.021 for Assault 2nd Degree.

WPIC 35.10 Assault 2.

[8] RCW 9A.36.011 Assault 1.

WPIC 35.03 Assault 1st Degree.