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Crime & Justice

Explainer: How hard do you have to hit someone to get charged with assault?

Last baseball season, San Francisco Giants fan Bryan Stow was beaten outside Dodger Stadium, leaving him with a traumatic brain injury and, over a year later, still recuperating. 

Last week, a fight outside Dodger Stadium sent one man to the hospital (he was soon after released). Four were arrested on suspicion of assault with a deadly weapon.

In the Stow case, attackers were charged with felony assault and, more recently after police raided their home, federal weapons charges. In the second case, though originally arrested for assault, the assailants will not face felony charges. As of Tuesday, attorneys in the City Attorney's Office are still reviewing the case to see if the assailants can be charged with misdemeanor battery. What's the difference?

According to Loyola Law Professor Stan Goldman, who specializes in criminal law and procedure, it's pretty much a judgment call on the part of the prosecutor. But the choice generally comes down to how much damage was done and how much damage could have been done.

For instance, Goldman says a broken bone will more often than not spark a felony assault charge, whereas cuts and bruises are more likely to draw a misdemeanor. And there's also the question of intent. If someone fires a gun at another person, but doesn't hit them, the case would likely still be charged as a felony—like attempted murder, or assault with attempt to commit great bodily harm. Similarly, in a fight, the aggressor's arsenal might come into play.

"If Mike Tyson punches someone in the face, that's probably a felony," Goldman says. "I'm 126 pounds. If I punch someone in the face, I might bust their lip, but I'm probably not going to do much damage," he says. "If I do it, it's probably battery."

If there's a fight and more than one party throws a punch, it's the person who hit the hardest—not the person who started the fight—who'll more likely get charged. 

"If you slap someone in the face, and they come back with a baseball bat, that's no longer self-defense," Goldman says. In fact, in that instance, the person who started the fight may be able to claim self-defense if the other person came back with a gun. 

Goldman says it's also fairly common for charges from a scuffle to change from arrest to actual prosecution. One case he remembers involved a woman accused of biting a taxi driver. She had said she bit the man in self-defense after he grabbed her following an argument over payment. Initially, the woman was booked by police on suspicion of felony assault. The District Attorney then decined to file charges and the case was passed to the City Attorney to consider a lesser charge. The City Attorney passed on the case and it was dropped altogether. So what started as a serious charge, and the possible threat of prison time, ended in a dismissed case.