In teaching torts, we often discuss the vague line between self-defense and retaliation in cases of assault and battery. That issue will now be at the heart of a criminal charge against former Broncos cornerback Brendan Langley who was charged with assault after hitting a United Airlines employee. A partial video of the incident shows how murky the line can be in the use of self-defense. Literally a few seconds can make the difference if this charge is any indication.
Langley was arrested Thursday after he allegedly got into a fight with a United Airlines employee at Newark Liberty International Airport.
The video, which does not show how the altercation began, seems to show the United employee throwing the first punch. The employee has been reportedly fired. Yet, it was Langley who was arrested.
If the video is the full record of the physical portion of the altercation, it would appear that the employee was the initial aggressor. When he is struck, Langley has a right to defend himself. However, there is a slight delay before Langley steps forward to hit the employee. The police may be basing the charge on the fact that Langley seemed to pursue the employee.
In New Jersey, assault is defined in the following way:
2C:12-1. Assault. a. Simple assault. A person is guilty of assault if he:
(1)Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or
(2)Negligently causes bodily injury to another with a deadly weapon; or
(3)Attempts by physical menace to put another in fear of imminent serious bodily injury.
Simple assault is a disorderly persons offense unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense.
There is no question that Langley causes bodily injury but how about self-defense or self-protection? That is defined below under New Jersey statute. Langley can clearly argue that he “reasonably believe[d] that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.”
Much of the exception to the use of protective force deals with home invasions or the use of deadly force. However, the law also states that, except for a couple of limiting provisions, “a person employing protective force may estimate the necessity of using force when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do or abstaining from any lawful action.”
Going back to the videotape, Langley may have been struck first and the employee repeatedly moves forward to reengage Langley. Clearly Langley could have retreated, but the Georgia law appears only to stipulate a duty to retreat in the use of deadly force.
The police may argue that, because of the separation before Langley responded, there was no reasonable belief that force was necessary. The fact that this was in an airport against an employee was also likely weighed heavily. However, it is hard to see why, if this video shows the first blow, the employee was not charged. Either way, this makes for a messy prosecution case if it were to go to a jury.
Section 2C:3-4 – Use of force in self-protection.Universal Citation: NJ Rev Stat § 2C:3-4 (2013)
2C:3-4 Use of force in self-protection.
2C:3-4. Use of Force in Self-Protection. a. Use of force justifiable for protection of the person. Subject to the provisions of this section and of section 2C:3-9, the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
b.Limitations on justifying necessity for use of force.
(1)The use of force is not justifiable under this section:
(a)To resist an arrest which the actor knows is being made by a peace officer in the performance of his duties, although the arrest is unlawful, unless the peace officer employs unlawful force to effect such arrest; or
(b)To resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:
(i)The actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest;
(ii)The actor has been unlawfully dispossessed of the property and is making a reentry or recaption justified by section 2C:3-6; or
(iii) The actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm.
(2)The use of deadly force is not justifiable under this section unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm; nor is it justifiable if:
(a)The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or
(b)The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:
(i)The actor is not obliged to retreat from his dwelling, unless he was the initial aggressor; and
(ii)A public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.
(3)Except as required by paragraphs (1) and (2) of this subsection, a person employing protective force may estimate the necessity of using force when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do or abstaining from any lawful action.
c. (1) Notwithstanding the provisions of N.J.S.2C:3-5, N.J.S.2C:3-9, or this section, the use of force or deadly force upon or toward an intruder who is unlawfully in a dwelling is justifiable when the actor reasonably believes that the force is immediately necessary for the purpose of protecting himself or other persons in the dwelling against the use of unlawful force by the intruder on the present occasion.
(2)A reasonable belief exists when the actor, to protect himself or a third person, was in his own dwelling at the time of the offense or was privileged to be thereon and the encounter between the actor and intruder was sudden and unexpected, compelling the actor to act instantly and:
(a)The actor reasonably believed that the intruder would inflict personal injury upon the actor or others in the dwelling; or
(b)The actor demanded that the intruder disarm, surrender or withdraw, and the intruder refused to do so.
(3)An actor employing protective force may estimate the necessity of using force when the force is used, without retreating, surrendering possession, withdrawing or doing any other act which he has no legal duty to do or abstaining from any lawful action.
L.1978, c.95; amended 1987, c.120, s.1; 1999, c.73.