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Can a Bully Claim Self-Defense?

Posted by Neil Shouse | Sep 23, 2009 | 0 Comments

California self-defense laws allow people to use reasonable force (and even violence) to protect themselves against an attacker. The threat must be immediate and a person must use no more force than is reasonably necessary to thwart the attack.

But what if someone starts a fight? Can he claim self-defense as a legal defense against criminal charges?

For example, suppose Sam walks up and starts punching Robbie. Robbie starts punching back. Sam continues his attack, claiming now that he's defending himself. Can he do this?

Well, first of all, Sam's initial attack was clearly not self-defense…so for that he could get prosecuted for assault and battery at the least. But once Robbie starts fighting back, does the defense of self-defense kick in?

California law allows self-defense by an aggressor, but only if two conditions are met. First, Sam must actually and in good faith try to stop fighting. Second, he must communicate to Robbie that he wants to stop (or has stopped) fighting. If Sam does both of these and Robbie continues to fight, Sam can now fight back in lawful self-defense.

In a related principle, the law does not protect a person who contrives a plea of self-defense. California Jury Instruction 5.55 reads that “The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense.”

In the end, however, the system defers to prosecutors, judges and juries to determine whether a use of force or violence was justified. While California self-defense law provides guidance in the form of rules and conditions, common sense and moral judgment will ultimately be the deciding factors. (Also see our article, Is Cyber-harassment a crime in California?")

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.

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