If you get in a fight and are the victor — meaning the other guy gets hurt worse — whether he started it or not, you’ll likely be the one to get arrested.
Generally speaking, prosecutors assume the one hurt the most, especially if the other person suffered minor or no injury, is the victim. The person hurt the least will be the one to get prosecuted. (Of course, this is only if all other factors are equal. If one guy is very old and the other in his 20s, the 20-year-old will likely be arrested. If one guy is white and the other black or Hispanic, the black or Hispanic guy will usually get busted, even if they were hurt worse.)
Fights happen all the time. Police often get there after the fact. Everybody’s upset, tempers are flaring, nobody’s neutral. That’s why if both parties suffer similar minor injuries — cuts, bruises, busted lips, bites — they’ll both get arrested. Cops would rather let the prosecutor figure out the details down the road.
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Once in custody, police will bring them to the precinct for fingerprinting and background checks, then either keep them in jail for bail to be set by a judge, or give them a Desk Appearance Ticket (“DAT”) if they have no criminal backgrounds. Orders of protection will be issued commanding the parties to stay away from each other.
I recently had a case where a woman, only 4’8″, was arrested in a laundromat in Queens. She was minding her own business but another patron, a woman closer to 6 feet, got annoyed when they bumped into each other taking out the laundry and started hitting her. My client ultimately had to bite her to get away. Police were called and both women were arrested.
We got the video from the scene, and while you can’t hear the choice words being exchanged before the fight started, it clearly shows my client being beaten up by this much larger woman. My client had no criminal record and neither did the other woman, so both were given desk appearance tickets to return to court in a month’s time. They were ordered to stay away from each other or face new charges.
The irony — they were both given the same court date in the same small DAT courtroom in Queens. Neither knew it. I didn’t even realize it until I showed up in court. Talk about prompting a scene that could erupt into violence.
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But apparently this happens frequently. When there are cross-complaints (each party blames the other), it’s common to bring both people to court together. Even though it seems illogical, the court figures either someone won’t show up or the parties will agree that neither will go forward and the cases will be dropped. (A lot of this stuff happens between family and acquaintances and a lot of the deal-making goes on behind the scenes.) Two different prosecutors, from the same office, are assigned to each case. They are not supposed to speak to each other about their cases, which further adds to delay any disposition, especially if one party is clearly at fault and the other not.
In my case, when I showed up with my client, the other woman did not. The case against my client did not get dismissed because of the bite. She will have to go back to court up to two more times even if the woman chooses not to go forward against her. (Every misdemeanor case has a 90-day shelf life between the date of the arraignment and when it gets dismissed if the complainant never signs what’s called the “supporting affidavit.”) In the meantime, I’ll get the video to the prosecutor in hopes of convincing him to dismiss the case against her before the 90 days are up.
In cases where the comparative severity of the injuries is way out of whack — one party loses an eye and the other merely bumps his head — prosecutors will indict the guy who suffered the lesser injury. They figure, how could he have been acting in self-defense if he didn’t even get hurt?
But what happens in real life is often trickier.
The person who doesn’t throw the first punch can assert a claim of justification, also known as self-defense. The charge states that you have the right to protect yourself in a fight provided you were not the person who provoked it. Either you had to have been hit first, or you reasonably believed you were about to be hit first. However, you are only legally allowed to use the amount of force necessary to get out of the situation, and you have to stop hitting once the initial danger has passed.
If somebody comes at you with his fists, you’re not allowed to shoot him. Similarly, if you knock a person on his back and he’s passed out on the floor, the fight has temporarily ceased; you can’t then keep hitting him just because you’re angry.
The law states that “a person may use physical force upon another individual when, and to the extent that, he/she reasonably believes it to be necessary to defend himself/herself [or someone else] from what he/she reasonably believes to be the use or imminent use of physical force by such individual.”
Defense counsel doesn’t have to prove the defendant was justified in using the force; rather, the prosecution must prove he was not.
The place this gets figured out is in front of a jury. No matter how reasonable the story, it’s always risky to do a bench trial when a serious injury is involved. It’s a rare judge who will rule in favor of a defendant when the injury to the complainant is severe and the defendant suffered no harm. Juries find this easier to understand. (They’ve probably been in more fights.)
Yet this does happen. I have a case where the complainant had a bone to pick with my client and started a fight with him. The complainant was so badly injured he almost lost his eye. He also slipped and fell during the incident, cracking his head against a metal rail, which caused more damage.
My client, being lighter and more nimble, got away with only minor injuries. He was arrested at his job two days after the fight. At trial it will come down to his word against the complainant’s, and who the jury believes more.
It won’t be an easy case to win, and the stakes are high. Charged with a D-violent felony, even a defendant with no criminal history is looking at spending up to seven years in jail.
In a case where what’s called “deadly force” is used in self-defense, the law requires that the person using the force have no safe way to retreat before justifying such force.
It’s always easy to sympathize with the guy who got hurt the worst. The photos at the scene look bad, the doctor’s testimony at trial is detailed, and the defendant, because of his lesser injury, is generally struggling against the presumption of guilt rather than that of innocence.
But the bottom line is — just because you suffered the worse injury, doesn’t mean you didn’t start the fight, and that your opponent (the defendant) didn’t have the right to defend himself.
Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at [email protected] or tonimessinalaw.com.