Legally Speaking - with Bob Mionske: Deliverance of the bird man
By Robert Mionske JD
Filed: September 13, 2007
I thought you might like to address this in your column. We were on a group ride in deepest darkest West Virginia and a car passed with oncoming traffic, mere inches from our handlebars.
This yahoo move was obviously for the purpose of aggression in that there was a stop sign only 100 yards ahead. Our fearless leader took offense and let loose the bird. The clan from Deliverance slid their vehicle across the road and in front of our group. When the enraged and rather large passenger tried to get out of the car our man, the bird man, pushed him back in. As the passenger fell back he struck the bird man, breaking his helmet. All the while his teen age son was punching from the back window and the probable true cause of the passenger's latent hostilities, his unfortunate wife, spewed profanities from the driver's seat.
There are two issues here. First, although unwise, isn't it one's constitutionally protected right of free speech to flip the bird? Second, was the bicyclist within his rights to push the man back into the car for fear of receiving a beating? Who assaulted whom?
Morgantown, West Virginia
Dear C. W.,
No subject attracts as much attention in bicycle law as the subject of confrontation with motorists. What happens when a car buzzes you? What about if the driver cuts across your path and the enraged occupant leaps out to confront you? Can you beat the tar out of the guy? Do you have to wait until he says he is going to "kick your ass"? Must you let the other guy swing first? What we need is a nice handy rule that's easy to remember in the heat of the moment.
We also need to consider whether it's worth the risk to your life. Is the other guy packing heat? What about you? In this day and age, those questions need to be added to the mix as well. With all of these questions in mind, let's try to figure out "who assaulted whom."
So, your group was riding along peacefully, when it was buzzed by the clan from Deliverance. Your fearless leader made a hand gesture signifying, perhaps, your club's "Number One" standing at the race track. The driver then slid the car across your group's path and cut you off. The enraged driver started to get out of the car....
Let's stop right there and talk a bit about assault, battery, and self-defense. We all probably know that if somebody punches you, they can be arrested for assault and battery. It's a criminal offense, but it's also the grounds for a lawsuit. Here's the thing, though-you don't have to be physically injured to sue somebody for battery. All that's required is that the other person made some sort of unwanted physical contact with you that either caused a physical injury, or was offensive to your sense of dignity.
But what does that mean, "offensive to your sense of dignity"? Basically, it means that if the average, reasonable person would have felt their sense of dignity was offended, then it's battery. Of course, physical contact is only battery if it was intentional.
Now here's something interesting: I said that battery is unwanted harmful or offensive physical contact with you; however, battery can also include offensive physical contact with something so closely related to your person that the offensive contact is equivalent to offensively touching you. For that reason, in my new book, Bicycling & the Law, I argue that intentional offensive physical contact with your bicycle while you are astride it is battery.
Now what about assault? Isn't that the same thing as battery? Well, people often use the word "assault" in that sense, but no, assault is not the same thing as battery. Think back to the guy who punches you-that's battery, right? Now, suppose instead that he threatens to punch you out right now as he's cocking his fist back. That's assault-the intentional creation of an apprehension of an imminent harmful or offensive physical contact. Now, assault and battery are criminal acts, and the person committing assault or battery can be arrested, prosecuted, and incarcerated. But they're also what we call "civil wrongs" or more commonly, "torts," which means you can sue somebody for assault and battery.
And that brings us to self-defense. If you're involved in a fight, you can be arrested and prosecuted, and you can also be sued. However, "self-defense" is a legal defense to a charge of assault and battery. Remember that I said we need a nice, handy rule to remember in the heat of the moment? The rule is this: You have the right to defend yourself, but it must be in response to an imminent threat, and your response must be proportional to the threat.
That means that if there's an imminent threat of battery-in other words, "assault"-you can defend yourself; you don't have to wait for the other person to actually make contact. However, the threat must be real-if what the law calls "a reasonable person" would believe that an attack is imminent, you can defend yourself. That's not a subjective standard; it doesn't matter what you personally think is reasonable. Instead, it's an objective standard of whether a theoretical "reasonable person," as determined by a jury, would believe that an attack is imminent. Of course, you can also defend yourself once the other person has actually hit you.
Now, if you're defending yourself, your defense must also be proportional to the threat. Generally, you are allowed to use the force that a "reasonable person" would believe to be necessary to stop the threatened, imminent, or actual attack. If a guy is threatening to punch you, for example, and a reasonable person would believe that the threatened attack is imminent, you are allowed to defend yourself with a force that is proportional to repel that threat-for example, by punching him before he can punch you. You're not allowed to respond by pulling out a gun and shooting him. However, self-defense can include lethal force, as long as you're facing an imminent threat of lethal force and there's no reasonable possibility of retreat. The key thing to remember is that you can only use the force necessary to repel the attack. And once the other person breaks off his attack, and effectively communicates to you that he's broken off the attack, you can't continue, you must also break off your defense. So what does "effectively communicates" mean? Well, it could mean the guy stops punching and, in the immortal words of Roberto Duran, says "no more." It could mean the guy stops punching and starts running from you. It could mean that you've knocked him unconscious. Once the other person communicates that the attack is over, in a way that would make a reasonable person believe that the attack was over, you must also break off your defense. If you don't, it's no longer self-defense, it's battery. You are allowed to use reasonable force, however, to hold the person while waiting for law enforcement to arrive.
There's one more limitation to self-defense that we should consider: You can't provoke somebody into attacking you so that you can retaliate and call it "self-defense." Well, what does that mean? What exactly is "provocation"? Generally, provocation would be an act or words that provoke the other person into fighting. So does that mean that any act or word could be provocation, no matter how sensitive the other person? No-it would all depend on whether a jury considers the act or words to be provocation. Obviously, provocation would include an assault or battery; if you provoke somebody into fighting by assaulting them, you would be the aggressor, and you would therefore be unable to claim "self-defense" if you subsequently respond to the other person's act of self-defense. It could also include other words or acts that provoke a fight, including words or acts intended to provoke a fight.
What about flipping the bird? Could that be a provocation? It appears so-indecent gestures are considered to be the equivalent of indecent or offensive language-what the Supreme Court has called "fighting words." If the person uttering the fighting words or the making the indecent gesture provokes a fight, and a jury considers the fighting words or indecent gesture to be a provocation, the person can't then fight back and claim self-defense. What about that buzzing-could that be provocation? Yes, if that's how a jury sees it.
Now that we've sorted those issues out, let's return to the scene of the altercation to answer your question. Who assaulted whom? You know, there really isn't a clear-cut answer. It's a complex question, with complex facts, and the answer would really depend on how a jury would view the evidence and testimony. But let's see if we can at least discern some of the possibilities.
First, your group ride is riding peacefully on a country road in deepest darkest West Virginia, when it's buzzed by the clan from Deliverance. Is the buzzing an assault? That would depend on whether the driver buzzed your group in order to create an apprehension of imminent harmful contact. If that was the driver's intent, then the driver assaulted everybody she buzzed. Of course, in order to prove assault, the driver's intent would have to be proved to a jury. Alternatively, the buzzing may be an act of provocation, whether it was intended to provoke a fight, or if it was simply provocative enough that a jury would find it to be an act of provocation.
So, after being buzzed, your group leader responded to this aggression by flipping the bird. Was that constitutionally-protected free speech, or was it a provocation? Because an indecent gesture is equivalent to indecent speech, it falls under the Supreme Court's "fighting words" doctrine, first put forth in a 1942 case, Chaplinsky v. New Hampshire, which holds that indecent speech and fighting words are unprotected speech. Thus, for example, state law may prohibit the use of indecent speech and fighting words without violating the first amendment right to freedom of speech. And in fact, West Virginia law does exactly that in its disorderly conduct statute:
Any person who, in a public place ...disturbs the peace of others by violent, profane, indecent or boisterous conduct or language...and who persists in such conduct after being requested to desist by a law-enforcement officer acting in his lawful capacity, is guilty of disorderly conduct, a misdemeanor...
Fortunately for birdman, while his "we're number one" gesture was not protected speech, it didn't violate the disorderly conduct statute, because a law enforcement officer never requested that he desist.
But was his gesture "provocation"? It could be, depending on how a jury would view the act. Was flipping the bird sufficient provocation to fight? Was flipping the bird intended to start a fight? Suppose he had made the gesture and shouted something like "come back here and fight if you think you're a man"? While proving intent is not necessary to prove that an act was provocation, and is often difficult to prove, if intent to provoke a fight were proved, it is virtually certain that birdman would not be able to claim self-defense if he was subsequently attacked and fought back.
So, after your group was buzzed, birdman flipped the driver off, and the driver responded by sliding the car across your group's path, cutting you off. As your group approached, the driver was spewing profanities, the teenage passenger in the back was punching the air, and the "enraged and rather large passenger" leapt out of the car towards your group leader. Was that assault? As with the buzzing, that would depend on whether they intended to create an apprehension of imminent harmful contact. Would a reasonable person, as determined by a jury, believe that under the circumstances a harmful or physical contact was imminent? If so, birdman was assaulted. Alternatively, a jury may view this act on the part of the driver and passenger as a provocation to fight.
At this point, birdman pushed the passenger back into the car, and as he fell back, he struck birdman, shattering his helmet. Who assaulted whom? That would depend on the answers to the previous questions. If birdman was assaulted by the passenger as he exited the car, then pushing the passenger back into the car would be an act of self-defense, if:
Birdman did not provoke the assault with his gesture;
The threat of harmful physical contact was imminent; and
Birdman only used that force necessary to repel the threat;
If a jury were to find those three factors, then pushing the passenger back into the car would be an act of self-defense. If the jury did not find these three factors were present, then pushing the passenger back into the vehicle would be an act of battery, unless the jury found that birdman had been provoked in such a way that it could be assumed he would retaliate physically.
Now what about the passenger? As he was pushed back into the car, he struck birdman, shattering his helmet. Was that battery, or self-defense? If the passenger was battered by birdman as he exited the car, then striking birdman would be an act of self-defense, if:
The passenger and driver did not act in concert to provoke a fight by buzzing the group;
The passenger was not the initial aggressor. This means that jury would find that when he got out of the car to confront birdman, it was not an act of assault;
He was subjected to unwanted harmful or offensive physical contact;
He used only the force necessary to repel the attack.
If a jury were to find those four factors, then striking birdman would be an act of self-defense. If the jury did not find these four factors were present, then striking birdman would be an act of battery.
It's only possible for one of the combatants to be engaged in self-defense; the other combatant would be committing an act of battery. However, an interesting twist to all of this centers on whether there was an act of provocation, and the intent behind that act. If an act of provocation is made with the assumption that the other person would attempt to retaliate physically, the person retaliating in response to the provocation may have a defense against battery. For example, if the driver and passenger assumed that they would provoke a fight by buzzing the group and then confronting them, birdman's push may not be an act of battery, even if the passenger did not commit assault by getting out of the car. Similarly, if birdman assumed that he would provoke a fight by flipping the bird, the passenger's response may not be an act of assault. As with self-defense, only one of the combatants can be a provocateur.
So, who assaulted whom? As you can see, there really isn't a clear-cut answer. It would all depend on how a jury would view the evidence and testimony. There's one sure lesson we can take from this for our next ride: You have the right to defend yourself, but it must be in response to an imminent threat, and your response must be proportional to the threat.