Attorneys Marc Lopez and Zac Bailey recently made time in their busy schedules for a little after hours, viral video legal analysis. What follows is a lightly edited transcript of their conversation.
Me and Zac are in the office working on cases. The other attorneys are running around, and I get a message from a good friend and he’s like, Have you seen this Twisted Tea video? What’s going on with that? Is that battery? Can you consent to battery?
So I was like, Zac, what is he talking about? Zac and I are so busy we are not even caught up on pop culture news. So we pulled up this Twisted Tea video.
I am blown away. This guy’s basically saying, Hit me, hit me, hit me. This is a wild video. Zac, had you seen this before today?
I’d seen snippets. I hadn’t seen the whole video. But we watched it today during lunch to get the whole thing.
So we’re actually after hours filming this, and we have some Twisted Tea here because we wanted to do our research. Zac, let’s walk through this video.
You have a gentleman saying, Hit me, hit me, hit me. He’s saying some vulgar things. For anybody watching this, Zac, is consent a defense to battery? Can you walk up to someone and be like, Punch me in the face. Give me some thoughts on that.
There are a few ways that consent can be a defense to battery, but it’s rare. It’s not a good defense. They’ve made it a defense because otherwise, you wouldn’t be able to play sports like football or boxing or anything like that where people are consenting to hit each other.
So there are a few ways where consent can be a defense. But generally, no. It’s not a good defense strategy.
It would be a horrible idea to hit someone and have your defense be like, Well, they told me to. The Court of Appeals has laid out that consent is a defense, but then they give six exceptions when it’s not.
Every single one of these exceptions is potentially problematic. If they consented, but you went overboard. If a death results, if it’s an aggravated battery—anything is an aggravated battery. If someone says, Aah, that really hurts!—that’s aggravated battery.
There’re so many exceptions here, but you’re exactly right. There has to be a defense for sports. The Court of Appeals—in a rather risqué opinion—says that consent is a defense when there are sexual overtones involved.
We’re not going to talk about that in this video because there might be kids watching, but you do not wanna rely on getting in a fight with someone and being able to say, Well, they consented to it. Terrible idea.
Zac, in this particular case, the gentleman is saying horrible things to the guy that ultimately hits him with the can. What does Indiana say about provocation?
It can be tricky. It can be a mitigating factor in a case, but it’s probably not going to be enough to claim self defense. A physical act may get us to self defense, and I think that’s what we’re seeing in this case right here.
Oh, absolutely. So when I show the video again, right here—you’ll see the man drops the can, and then this absolute jerk of a guy, he kicks at him and he doesn’t make contact with him. He hits the guard rail on the bottom floor or whatever.
Once that guy makes an overt act—along with his words—I think this gentleman is in the clear for claiming self defense. You and I both know that you have to be in a place where you have a right to be, and this looks like a convenience store. No problem with that.
The person exercising self defense can’t have provoked anything, and I think it’s clear that he wasn’t provoking—in fact, the other guy was provoking.
Now here’s the heart of it: The response has to be both objectively reasonable—meaning outside looking in—and subjectively reasonable—meaning putting yourself in that person’s shoes.
Zac, walk us through outside looking in on this particular case. How would we argue this if we were going to trial in Indiana?
So outside looking in, we see somebody’s acting aggressively towards him. Even the woman in the background—you can hear her talking about it. She’s amazed he didn’t act sooner. He’s got somebody acting aggressively towards him and then there’s an overt act with the kick. So there’s a couple of actions here that make it seem like he was justified in his behavior.
I totally agree. I mean, the atmosphere plus the overt kick—I think anybody is going to be like, Oh, objectively this is fine.
Now subjectively—Zac, how would we argue that at trial?
He may have to testify to say he felt threatened at the time. It’s probably going to come down to his testimony if he’s claiming self defense, saying he felt threatened based on the other person’s behavior.
If we find objectively that it’s that way and he says he felt subjectively threatened, I think it’s a good self defense case.
Absolutely. How exciting would it be if this happened in Indiana and they charged this guy? We would just be so happy. I mean, it’d be the funniest case in the world. This guy clearly is asking to get punched.
And I never would have thought Twisted Tea could be used like that. Did you see the splash?
Look at that! There is a splash off that guy’s face. I am blown away.
Even though we’re making light of all this, self defense is a serious issue, and you have to feel threatened. Words alone typically are not going to be enough. Before you act out and hit someone, just understand there can be serious ramifications.
In this case, I don’t think the gentlemen overreacted. Once the guy kicked at him, he hit him with the can. Then the guy started walking towards him, and once the guy was on the ground, I think there were a total of five punches.
The gentlemen showed incredible self-restraint. He stopped. He didn’t just pound him into oblivion. He didn’t do an elbow drop, didn’t kick him while he was down. He showed a lot of restraint.
That’s key too, because self defense can always start as self defense and then it can go overboard. We’ve seen that too, where someone goes way overboard and loses that right. The response has to be reasonable.
This guy didn’t pull a gun out. He didn’t shoot him. He didn’t grab a weapon and start bludgeoning him. He used his fists after the guy came at him with some fists. This is reasonable. I think we could win this case almost every single day.
Any parting thoughts, Zac?
I commend the self-control he showed the entire time because he showed a lot of restraint there.
All this guy wanted was a delicious Twisted Tea, and that guy’s making his life hell.
I can see why. These are great.
Remember—always plead the 5th!