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Can Assault and Battery Be Considered Self Defense in California?

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A Discussion of Constitutional Rights & Criminal Defense in San Diego, California

Under the U.S. Constitution and state law, you are afforded very specific constitutional and civil rights, such as the right to have an attorney present, the right to a speedy trial, free speech, etc. However, you might be surprised at how frequently these rights are violated—hence ensuring that you demand to work with an assault and battery attorney right away—before saying anything if you have been arrested.

Protests have captured many headlines of late, with some individuals being arrested by law enforcement for activities that the law claims go beyond free speech and freedom of expression, and into damaging property and/or assault. Below, we discuss more of these cases around the country, and how individuals charged with crimes will want to ensure that their rights are protected throughout the course of their legal representation.

Police Violating Civil & Constitutional Rights

One of the main purposes of providing citizens with civil rights is so that they are protected from the abuse of government. This includes police misconduct: Under the Civil Rights Act, it is unlawful for a police officer to deprive you of your Constitutional and federal rights.

Some of the more common accusations against police alleged by individuals claiming that their rights were violated include false arrest, use of excessive force, and malicious prosecution. These charges fall under your Fourth Amendment right against unreasonable search and seizure and your Fourteenth Amendment right to liberty.

The Right to Protest & the “Necessity” Defense

Drawing the line between crime and free speech/the right to assemble can be challenging—both for law enforcement and in the courts. The right to protest is arguably a manifestation out of the freedom to assemble, the freedom of association, and the right to freedom of speech.

In November 2017, the news in Bismarck, North Dakota, covered the pipeline protesters involving the issue of what is known as the “necessity defense” of late. In response to charges related to misdemeanor counts of criminal trespass in association with their protests, some of these activists—as members of Native American tribes—have responded that the perceived threat of the pipeline construction effectively gave them no choice but to engage in civil disobedience.  

Forced Into Crime

California courts have recognized the defense of necessity in several contexts, clarifying that it can be distinguished from duress in that an individual must engage in illegal conduct in order to avoid a greater harm, or a lesser of two evils (versus duress, which forces particular action when faced with death or serious bodily injury).

In California, defense of necessity must include the following six items, which must be proven by a preponderance of evidence. An individual charged is not considered guilty if the following things are true:


  1. The individual  reacted in an emergency to prevent a significant bodily harm to himself/herself or another person;
  1. There was no adequate legal alternative;
  2. The individual did not create a larger danger than the danger that was avoided;
  1. When the individual  acted, (he/she) actually believed that the act was necessary to prevent a perceivable harm;
  1. A reasonable person also would consider the act was necessary under the circumstance;


  1. The defendant did not substantially add to the condition creating the emergency.

California Arrest Warrants Reviewed: Your Right to an Experienced Assault and Battery Attorney Violated

Your right to have an experienced assault and battery defense attorney present during questioning and counsel during a trial are an integral part of your constitutional rights. Yet, in an example in the news in South Carolina that shocked the nation, Chief Justice Judge Donald Beatty announced that thousands of people in York County who faced the possibility of doing jail time due to lower-level convictions were convicted without first going before a judge, and were thus uninformed of their constitutional right to an attorney if they were charged with a crime that carries jail time or a fine. As a result, they will no longer do jail time.

With the announcement, Judge Beatty ultimately sent a memorandum to all summary judges in the state, reminding them that it is illegal to jail someone if they have not waived the right to an attorney or ever had access to an attorney. As a result, several York County, SC  judges are now no longer jailing offenders who have already been convicted even though they never appeared in court.

If you are arrested and charged with assault and battery in San Diego, California, you have the right to have an experienced assault and battery attorney present and have your case heard in front of a judge or a jury of your peers. Contact a skilled assault and battery attorney today if you are facing charges of assault and battery in San Diego, California.

Experienced Assault and Battery Attorney in San Diego, California

Facing criminal charges, regardless of what they are, can leave you feeling frightened and unsure of what to do.  The experienced criminal defense attorneys at 1-800-Hurt-Now are well-versed in helping those who have been arrested in San Diego. California, and the surrounding area. Contact us today and find out how we can help you.

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