Imagine the following two scenarios: In the first scenario, you walk into a bar, see someone you don’t like, intentionally spill some beer on them, and get into a brawl. In the second scenario, you walk into the same bar and see the same person you don’t like. However, instead of antagonizing them, you go to another table and mind your own business. They then come to you, push you, and start a brawl. In the first scenario, you are guilty of assault. In the second, you can claim self-defense. What are the key differences between assault and self-defense that let you off the hook in one situation but not the other?
Assault
Assault covers a large number of specific crimes, ranging from menacing to assault in the first degree. The least serious examples of assault are threats to cause imminent physical harm. The most egregious examples of assault involve permanently disfiguring or disabling someone by intentionally injuring them. As a rule, assault laws are written to include any intentional act that injures or threatens to injure another party.
Self-Defense
The main difference between assault and self-defense is that assault is a type of criminal charge and self-defense is a potential affirmative defense against that charge. An affirmative defense is one where the actor admits to the principal facts of the criminal charge but claims that they had a legally sufficient reason to commit the crime. Effectively, when you claim self-defense, you are saying that you are guilty but that the law shouldn’t penalize you due to the circumstances of the case. The following are things you should know about claiming self-defense.
Self-Defense Can Be Claimed Only in Limited Circumstances
Typically, the laws don’t allow you to use physical force on another person without their permission, unless you have a legitimate self-defense claim. To make a legitimate self-defense claim, you must assert and be able to legally prove that the person you assaulted was about to use unlawful force against you or another individual. You may meet that aggression only with the amount of force that is necessary to protect yourself or the third party.
That last part is very important. You cross the line from self-defense to assault if you escalate. For example, if someone tries to punch you, it is okay to fight back to protect yourself or to mildly incapacitate them. However, if you knock them down and then stomp on their head or break their arm, you have escalated beyond the force needed to protect yourself.
Deadly Physical Force Is Further Limited
According to Colorado law, there are only three circumstances where a defendant can claim self-defense as a justification for using deadly physical force:
- The defendant believes that they or another person they are defending is in imminent danger of being killed or seriously injured.
- The defendant believes they are about to be assaulted by someone committing burglary of a home they occupy or a business they own.
- The defendant believes the other party is committing or about to commit kidnapping, robbery, or sexual assault.
If you are justified in using physical force but not justified in using deadly force, you are guilty of committing a crime (probably manslaughter) and will likely face felony charges.
If you have been charged with a felony and believe it is unjustified due to Colorado self-defense laws, contact the Law Office of Kevin Cahill at 720-445-9887 immediately to consult with a felony defense attorney.
Unjustified Uses of Self-Defense
Many people believe that as long as they don’t throw the first punch, they are justified in claiming self-defense. That is a mistaken belief. In the original scenario presented, you intentionally spilled your drink on the other party, provoking a fight. Even if the other person threw the first punch (which is likely in that scenario), you instigated the fight. If you provoke the other party in any way, you can’t claim self-defense. Similarly, self-defense claims aren’t available when both parties agree to an unlawful fight.
The law also explicitly prevents what is known as the “gay panic” defense. This means that if someone makes an unwanted advance toward you and they are not your preferred gender, you can’t “defend” yourself physically. Nor can you assault someone if you discover they aren’t the gender you thought they were after physical affection has started.
Expect to Have to Defend Yourself in Court
Self-defense is an affirmative defense. While a prosecutor may believe your story and choose not to press charges, that doesn’t mean you can’t be charged later. And there is a good chance when making a self-defense claim that you will be prosecuted and have to present your case to a jury.
If you find yourself in court, the judge will determine whether your case qualifies for a possible self-defense case. In cases that qualify, the judge gives jury instructions that explain self-defense laws and what the jurors need to believe to find you not guilty based on that defense.
But what happens if the judge determines that self-defense isn’t justified? You can still make a self-defense claim to mitigate the charges against you. However, the jury can’t use that claim to find you not guilty, and the prosecution doesn’t have to prove your claim is false.
While self-defense legally allows you to assault or even kill people in some circumstances, it is still an affirmative defense. If you make a self-defense claim, you should expect to be prosecuted and to have to prove your claim in a courtroom.
Contact the Law Office of Kevin Cahill Today
Self-defense is a legitimate defense against assault charges when the circumstances justify it. Our law firm will determine whether you have a legitimate self-defense claim during your initial consultation.
Don’t gamble with your future if you are facing assault charges in Colorado. Consult with an experienced criminal defense attorney right away to determine whether you have a legitimate defense and what you need to do to claim it. Contact the Law Office of Kevin Cahill at 720-445-9887 today.