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Can Self-Defense Be Used to Defend Against Claims of Domestic Violence?

Self-Defense and Domestic Violence: Defending DV Abuse Claims and In re Marriage of Grissom

By: Michael C. Peterson, CFLS

A trend in California appellate courts over the past ten years in domestic violence litigation has been to flush out the meaning of the term “abuse,” as defined by the Domestic Violence Protection Act (“DVPA”; Fam.C. § 6200, et seq.), and particularly conduct constituting "harassment" and/or "disturbing the peace" of another within the setting of intimate relationships. Appellate decisions reflect an increasing awareness and sensitivity over the varietals of conduct that may constitute abuse, as grounds for a restraining order. Technological change and its impact on society’s methods of communication have challenged justices and family court judges to expand in tandem with the types of loathsome behaviors that a digitized world may facilitate. Appellate cases have recognized abuse as occurring in the following notable contexts:

► Unwanted, repeated contacts [Sabato v. Brooks (2015) 242 CA4th 715, 725, 195 CR3d 336, 344];

► Communicating inappropriate sexual innuendo by text messages [Burquet v. Brumbaugh (2014) 223 CA4th 1140, 1144, 167 CR3d 664, 668];

► Accessing, reading and publicly disclosing another’s confidential e-mails [Marriage of Nadkarni (2009) 173 CA4th 1483, 1496, 93 CR3d 723, 73].

More rare are appellate cases providing facts of what is not abuse under the DVPA. One example is found in S.M. v. E.P. (2010) 184 CA4th 1249, 1265-1266, 109 CR3d 792, 803-804 where an appellate court determined that, over the course of a single night, pulling covers off a sleeping romantic cohabitant, turning lights on and off in a room occupied by said sleeping cohabitant, and calling said cohabitant a “cold bitch” was not abuse. Another is that a person’s infidelity and seeking a restraining order against the other is not abuse [Altafulla v. Ervin (2015) 238 CA4th 571, 582, 189 CR3d 316, 324].

However, I had never reviewed a published case discussing the extent by which a person opposing a DVPA restraining order request might use a degree of physical force to defend themselves against the other party, in connection with the underlying events. This changed with the certification for publication of In re Marriage of Grissom, delivered by the Fourth Appellate District, Division One, appellate case number D070495.

In Grissom, the wife filed a DVRO request against her husband, alleging he had physically injured her on at least two recent occasions. The husband answered, alleging the wife had instigated each of the physical contacts resulting in injuries to her (and had repeatedly done so in the past by taking his work-related property and preventing him from accessing it until he acceded to her demands). The first incident in Grissom occurred in August, 2015 and involved the wife snatching the husband’s laptop, her hiding it, him finding it in a hidey-hole in the parties’ bedroom, and him taking it back. A physical struggle ensued over the laptop, with the wife simultaneously spit-ting in the husband’s face and then covering his mouth and nose with her hand, him biting her thumb to get her to release her grip, and them falling to the bed with the wife becoming injured (a scraped knee on the bedpost and a bruised, bitten thumb). Gosh, people behave like this? Oh, yes, yes, they do.

The second incident discussed in Grissom occurred in November, 2015 and involved the wife allegedly snatching the husband’s cell phone in their garage, her looking through it in his presence, him snatching it back when she came close, a physical struggle over the cell phone wherein he told her to stop and that she was hurting him, him attempting to wriggle away, and her falling and hitting her head on the car bumper and tail-bone on the ground when he did wriggle away causing her to lose her balance.

The third incident occurred the next day, when the husband began packing a bag to leave and the wife again snatched his cell phone from him, with the parties struggling into the kitchen whereupon the husband pinched a nerve in his back and collapsed, and the wife ran the cell phone under running water in the sink. Any of this sound familiar? It sure does to this author, in the course of his legal practice.

The Grissom trial court found there was no abuse by the husband, and the appellate court agreed that the husband did not commit an act of abuse merely by defending himself and his property. The courts found and upheld the defense that the wife’s aggressive conduct “triggered” the husband’s responses, and that the husband did not use excessive force in connection with his responses to the wife’s aggressive conduct.

The justices ruled: "Although section 6203 defines abuse to include an intentionally or recklessly caused bodily injury to the complainant, a finding of abuse is not mandated merely because the complainant shows he or she suffered an injury caused by the other party. Instead, fundamental and well-established principles allow a victim of physical aggression to employ reasonable force to defend his or her person or property against the aggressor, even when such reasonable force causes some bodily injury to the aggressor. The trial court properly recognized that a person who responds reasonably to an aggressor in this way does not commit abuse within the meaning of section 6203."

In holding that a person may use a reasonable amount of force to defense himself or herself from aggressive, triggering behavior, the appellate court rejected the wife’s argument that the DVPA provided no affirmative defense of self-defense, and therefore any intentional or reckless conduct on the part of a person defending in a DVRO proceeding required a restraining order result. The appellate court said that “the language of the statute coupled with long-standing and fundamental principles of responsibility and culpability” precluded it from over-turning the trial court’s decision.

The appellate court went on to discuss Fam. C. § 6305 and its language concerning the requirements for a mutual restraining order, that both parties acted as primary aggressors, reasoning that the “clear purpose of this requirement is to avoid restraining a party who is not culpable, and reflects the Legislature’s understanding that reasonable self-defense is a defense to a claim of abuse.”

The Grissom appellate court next went on to discuss codified and common law principles of self-defense as recognized by the California Supreme Court in Calvillo-Silva v. Home Grocery (1998) 19 CA4th 714, agreeing that in the domestic violence context, a person may use reasonable force, under the circumstances, to defend against injury to person or destruction of property, and to retake property obtained by force.

To a degree, the nomenclature used by both the trial court and the appellate court in Grissom seems imprecise by ruling that the husband committed no act of abuse, whereas to a practitioner of jurisprudence it would be more accurate to say that the self-defense and defense of property conduct which the husband employed, being reasonable under the circumstances, constituted an affirmative defense such that denial of the wife’s requested restraining order was appropriate. But a practitioner in the trenches of Family Law could also see the problematic nature of such a pronouncement, there being multiple other statutes and case law which turn on an abuse finding with no codified exception for new case law’s possible recognition of self-defense as an affirmative defense in certain domestic violence litigation.

Take Fam. C. § 3044, and its specific provisions that a finding of abuse creates a rebuttable presumption against the abuser’s having custody of children; the statute makes no mention of an exception for self-defense. How would CCRC mediators deal with a trial court’s finding of abuse and possibly justified self-defense, simultaneously in a prior hearing? Possibly it would lead to confusion. Thus, the Grissom appellate court made a cleaner pronouncement by characterizing the facts of the case, in total, as non-abuse and thereby avoided the sticky details such as requiring of a body of statutes to be revised to comport to new case law.

The Grissom justices saw fit to mention in a footnote, fn 5, the fact that the wife had sought sole legal and physical custody orders of the parties’ child in connection with the proceeding. As custody was not directly relevant to the issues before the Court, perhaps this was a signal that there is an ever-increasing awareness of the problem of using domestic violence to gain a custody advantage? I hope the answer is "yes, it does," because gaming the court, the other parent, or possibly deleting that parent from a child's life where what transpired is misrepresented or not the whole truth - so to speak - is awfully destructive. I have so much faith in the wisdom of all of our judges and Justices!

Nonetheless, I'd wager that there will be extreme pressure applied to de-certify or limit this opinion, because it is absolutely not politically correct. Unfortunately, the decision does track the realities of human nature, in the land of relationship-endia. DV claims are something of a social/political see-saw; but given their seriousness in a huge number of cases for the victims and the laudable social policy that penalizes violence and in particular violence against women, these issues are fraught for the judges and the judged. True DV cannot be tolerated in a civil, enlightened society. Some balance needs to be imposed on these cases and upon such litigants in recognition of the fact, not that anyone ever deserves to be hurt by another, but because in a certain small percentage of the cases, our legislators have incentivized people to provoke the other and lie to gain a custody or financial advantage. I see this gaming attempted from time to time in my child custody and domestic violence related practice. This case is a breath of fresh air.

Author: Michael C. Peterson


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