January 11, 2019

A Cup of Joe | Combat by Agreement? Erases Justification Defense and Gets Brawling Neighbor Arrested

Combat by Agreement?  Erases Justification Defense and Gets Brawling Neighbor Arrested

We got a call one day from a gentleman who wanted to know if we would be able to draft up an agreement between him and his enemy. The agreement would state that they were going to fight each other without weapons, and they wanted to agree to not sue each other in the event of injury or death. What they wanted to do was to engage in….Combat by Agreement. Is that legal? And if someone called the police, would they get arrested?

This week’s case introduces us to 3 neighbors who live up in the Finger Lakes – Nancy,  Jack, and Norwood.  One evening up in Wayne County, NY, Norwood and his friends were shooting off fireworks – no permit. Nancy, fed up with the loud noise, called the police. A cruiser pulled up to Nancy’s house and Nancy came out to the car. As Nancy was telling the officer through the open passenger side window of the cruiser about the fireworks, Jack came from around the corner of his house and started yelling at Norwood to "knock it off there's a police officer coming."  Norwood then stormed towards Jack and started yelling that he was "sick of this shit" and that he was "gonna knock somebody out."  Jack replied, "go ahead, do it, knock me out," and "bring it on," saying it three times. Closing in, Jack pushed Norwood.

The officer, who had exited the cruiser during the heated argument, saw the push and asked Norwood if he wanted to press charges. Norwood said yes. Jack was arrested.

At the criminal trial, the judge faulted Norwood for making "that comment" and by marching towards Jack; and, faulted Jack for taking "matters into your own hands and to do so while the police are right there." Ruling from the bench, the judge viewed the matter of Jack's guilt as "close," but with enough doubt on the intent issue to find him not guilty.

And then Jack sued the police officer and the Department for wrongful arrest.

The court had this question to decide: Did Jack’s statement to “go ahead, do it,” in response to Norwood saying, “gonna knock someone out,” create Combat by Agreement?  The court answered YES; therefore, Jack could not claim that he was acting in self-defense. The case against the police officer and the Department was DISMISSED.

Now, what about the gentleman who asked about drafting the Combat Agreement for the fight with his enemy? The answer was that the agreement could be drafted but there was still exposure to criminal and civil liability. An individual may consent to be forcefully struck and so waive their legal right to sue for the tort of battery committed against them, an individual's consent cannot eliminate the crime which has been committed.

Since the 19th century, dueling has been outlawed in all states even though both parties consent to the activity, in recognition of society's interest in preventing the infliction of death or serious bodily harm upon its citizenry. In this state, only The New York State Athletic Commission licenses and regulates combative sports like boxing and MMA. Although the parties consent to the activity, the criminality of the act does not go away.

Here is the case: http://www.courts.state.ny.us/reporter/pdfs/2019/2019_30000.pdf

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