The "Privilege" Defense to a Civil Battery Claim

There are a few situations where a defendant may escape liability for civil battery.

By , J.D. · University of San Francisco School of Law

The defense of "privilege" may be used to insulate a defendant from liability in a civil battery claim. Basically, in any successful use of the privilege defense, the person being accused of battery admits to having committed the act -- the intentional and offensive (or even harmful) touching of the claimant. But the offender also shows why he or she had the legal right (the "privilege") to do so, based on the circumstances. Below we'll take a look at specific examples of when a privilege defense may protect a defendant from liability for a civil battery.


In some situations, it is said that the claimant or plaintiff has given his or her consent to an act of battery, and so the claimant cannot then turn around and sue the defendant for civil battery. The most typical example of consent occurs in sports. A tackle or even an intentional foul in a particular sport may be seen as an expected part of the game, and not as an act of battery. Similarly, in authorized surgical and other medical procedures, consent will exist between the patient and the doctor, and a battery allegation will not stand as long as the contact occurred in the normal course of medical treatment.

Conduct of a Police Officer

A police officer has the legal privilege to use the threat of force, or use actual force if necessary and reasonable under the circumstances, in order to carry out a lawful arrest. Even when an arrestee suffers injury during the course of an arrest or struggle with a police officer, as long as the officer is attempting to make a lawful arrest and is using no more force than is reasonable given the circumstances, the arrestee will likely not have a valid battery claim against the arresting officer.

Use of Force in Self-Defense, and in Defending Others

If faced with a threat of imminent harm to him or herself or to other people, a person has the legal right (again, the "privilege" in the parlance of this article) to use reasonable force against the person who represents the threat. Whatever force that is used must be reasonable in light of the circumstances and in light of the threat. So, if someone threatens to "punch your lights out," even if they're standing right in front of you and shaking their fist in your face, you almost certainly don't have the legal right to pull out a gun and shoot them dead. That's not a reasonable use of force under the circumstances, no matter how certain you might have been that you were about to get punched.

On the other hand, a number of states have passed controversial so-called "stand your ground" laws, which don't require you to retreat in the face of a credible threat of harm, and in some cases you may be entitled to use deadly force in response to a reasonable threat.

Discipline or Act of Restraint

Some individuals and employees of businesses may be legally privileged to use force or physical restraint to discipline others. Parents are usually legally privileged to use reasonable physical restraint upon their child. Teachers may also have a similar privilege to use reasonable restraint on students. The staff at a mental health institution may have the same privilege over a patient. So, in these cases, a civil battery claim likely wouldn't be viable.

Defending Property

Most jurisdictions permit property owners to use a reasonable threat or reasonable force in order to defend their own property from vandalism or theft. However, there are limitations to this privilege, and a disproportionate use of force will not insulate you from a civil battery claim in most jurisdictions. In some states, there is a clear difference between the amount and nature of force you can use to defend your property when the trespasser is in your home versus when he or she has left your property. Of course, it's not always clear what kind of threat a trespasser poses: if someone is in your home, do they intend to steal your television, or harm you personally? So, again, this is where the "stand your ground" laws mentioned above might come into play.

Merchant's Privilege

In a number of states, store owners and other businesspersons ("merchants") have the right to use a reasonable amount of force to detain a shoplifter or any other person who the merchant reasonably believes is making an attempt to damage or steal store merchandise or other property. These situations can get dicey pretty quickly. So, in some cases, a privilege defense may be valid if a customer accuses a store owner or employee of battery. But in other cases, an inappropriate or unreasonably harsh response to a potential shoplifter can give rise to civil lawsuit for assault, battery, or false imprisonment.

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