The Fight Outside the Bar

Under the common law, a defendant may use reasonable force to defend against an imminent threat of unlawful force. However, the initial aggressor generally loses the right to claim self-defense unless he withdraws from the conflict and communicates that withdrawal. Here, Victor shoved Omar first, making him the initial aggressor. Omar responded with a shove, which is a proportional response to Victor's shove. Victor then escalated by punching Omar in the face, causing a broken nose. That punch was not in self-defense because Victor was the aggressor and Omar's shove did not constitute an imminent threat of serious bodily harm. Even if Victor felt threatened, he provoked the confrontation. The initial aggressor rule would bar his self-defense claim unless he withdrew. There is no evidence of withdrawal before the punch. Therefore, Victor cannot claim self-defense for the punch. The prosecution can argue that Victor committed battery. The fact that Omar shoved back does not revive Victor's right because Victor started the physical altercation. The jury would likely find Victor guilty of battery for the punch. The broken nose is sufficient injury to constitute battery. The defense might argue that Omar's shove was an escalation, but a shove is generally not deadly force, and Victor's punch was disproportionate. The initial aggressor doctrine is designed to prevent instigators from claiming self-defense. Thus, Victor's claim fails for the punch.

After the punch, Victor turned to walk away, which could be seen as a withdrawal from the initial confrontation. However, withdrawal for self-defense purposes requires that the aggressor communicate his withdrawal to the other party. Walking away without words may not be sufficient, but it is evidence of withdrawal. When Omar got up and swung a bottle at Victor's head, Omar escalated the conflict with deadly force. A bottle swung at the head can cause serious bodily harm or death, so it constitutes deadly force. Victor saw the bottle coming and ducked, then kicked Omar in the stomach. The kick was a response to an imminent threat of deadly force. Under the common law, a person may use deadly force in self-defense if he reasonably believes it is necessary to prevent imminent death or serious bodily harm. However, Victor's kick to the stomach is not deadly force; it is non-deadly force. The use of non-deadly force is permitted if the defendant reasonably believes it is necessary to defend against unlawful force. The proportionality requirement is satisfied because the kick was less severe than the bottle swing. The key issue is whether Victor's initial aggression still bars his claim. Because Victor had withdrawn (by walking away) and Omar then attacked with deadly force, Victor's right to self-defense was restored. Even if the withdrawal was not communicated, Omar's deadly attack created a new situation. The law generally allows a defendant to use force if he is no longer the aggressor and is faced with a new threat. The jury could find that Victor reasonably believed he needed to kick Omar to prevent the bottle from hitting him. The kick was proportional to the threat. Therefore, Victor has a strong claim of self-defense for the kick. The prosecution's argument that Victor was the initial aggressor is weakened by the withdrawal and Omar's escalation. The case would likely go to the jury on the reasonableness of Victor's belief.