Offensive Words Do Not Permit a Swing, says Fairfax Criminal Lawyer

Offensive words by themselves do not support a claim of self-defense against an assault prosecution, says Fairfax criminal lawyer

Offensive words by themselves do not support a claim of self-defense, nor does the act of someone getting in your face. As a Fairfax criminal lawyer, I was not surprised to read an unpublished opinion from the Virginia Court of Appeals that rejects a self-defense claim where a shouting and insult match escalated to a cohort of the alleged assault victim getting into the defendant's face and the defendant's ultimately throwing a beer can into the victim's chin. Cooley v. Commonwealth of Virginia, Record No. 1243-23-3 (Va. App. Oct. 1, 2024) (unpublished). In response to seeing vehicle A hit vehicle B in a public parking garage, Cooley exited the vehicle he was in and photographed the striking vehicle. The striking driver escalated the situation by challenging Cooley about why he was taking pictures, and he escalated matters by alleging that the striking driver was trying to get away. As described in the court opinion, the two of them continued acting like fools, at best, with Cooley asserting that he ultimately walked away, found the victim pursuing him, and stopped her obnoxious actions by throwing a beer can at her chin, which resulted in a mark thereon. Cooley lost his appeal for his assault conviction under Virginia Code § 18.2-57.

Reacting assaultively to offensive words alone loses both under Virginia theories of self-defense without fault and with fault.

"Virginia law recognizes two forms of self-defense: ‘"self-defense without fault," referred to as justifiable self-defense, and "self-defense with fault," known as excusable self-defense.'... Justifiable self-defense 'occurs when the accused is "without any fault on his part in provoking or bringing on the difficulty."’... By contrast, excusable self-defense “occurs when the accused is at "some fault in the first instance in provoking or bringing on the difficulty" but, when attacked, he "retreats as far as possible, announces his desire for peace," and acts "from a reasonably apparent necessity to preserve his own life or save himself from great bodily harm."'... Both types of self-defense constitute a complete defense." Cooley (citations omitted). Self defense claims get nowhere when the opponents' actions are no worse than offensive words and getting in one's face.

Watch out when a Virginia court rejects your self defense claim even when assuming the truth of your version of events

Cooley concludes that under "any version of the facts presented at trial, appellant did not conclusively establish that he threw a beer at [the victim] because he reasonably believed he was in danger of bodily harm. Throughout the encounter, he and [the victim] both were extremely angry and traded insults. Despite the heated nature of the encounter, nobody—including Short—made any threats of bodily harm." Cooley continues: "Although appellant claimed he saw an object in Short’s hand, he did not know whether it was a weapon. Considering the appellant’s behavior throughout the encounter—along with his intoxication— a factfinder could determine that he threw the beer out of anger, not reasonable fear of bodily harm".Cooley. As a Fairfax assault lawyer, I know that few self defense defenses are airtight -- and certainly are ineffective when only offensive words or vile words are involved -- but we get our clients where we find them, and Cooley's lawyer may have had no better an approach to take with Cooley's testimony than he took.

How do I avoid a Virginia assault prosecution in the first place?

How irritating and even angering are so many unexpected encounters and offensive words that we face during the year, to the point that it is challenging to deescalate the situation. What other choice do you have, though? Cooley was clearly not the model of elegance in the way he admittedly spoke to his victim and cohorts. He was wise if he ultimately walked away from the situation, as he testified to have done. He was unwise to have tried to shut up his victim by hurling a beer can at her. If we practice de-escalation techniques with the smaller annoyances in our lives (for instance not yelling at a restaurant manager who will not delete an ordered item for having been cooked wrong), we will be in a better posture to accept the insults and even vile words of others the way that the best politicians roll with the verbal punches. However, if you do find yourself taking a swing you should not have taken, beware of swinging any further -- rather than doing your best to walk away -- even if your opponent responds by assaulting you.

Fairfax criminal lawyer Jonathan Katz fully defends you regardless of your level of innocence or culpability, and regardless of how benign or vile your alleged crime. Jon Katz does not judge you, but instead completely takes on your cause as his own, out of his true belief in the plight of Virginia criminal and DUI defendants and their Constitutional and statutory rights. Secure your free in-person initial confidential consultation with Jon by calling 703-383-1100, emailing info@BeatTheProsecution.com, or texting us at 571-406-7268.