Can my buddy go to jail for head-butting a bouncer at a bar he was banned from?

"We asked you to leave the bar nicely, sir."

"We asked you to leave the bar nicely, sir." Getty Images/iStockphoto

The Door Guy is a veteran of countless clubs around town. People say they've seen it all, but he's seen more, and he's got all the advice your life can handle.

Dear Door Guy:

I know you’re not a lawyer, but I’ve searched online everywhere for my answer to no avail. My friend was banned from one of our local bars. A while later, he returned and was served alcohol and food. He was there for quite some time before a bouncer told him he was banned and had to leave. The bouncer shoved him and told him to get out. My friend was drunk and head-butted him. The police were called, but the bouncer stated that he didn’t want to press charges and my friend was free to go.

Months later, my friend learned there was a warrant for his arrest due to injuries sustained from the head-butt. 

My question is, wouldn't the bar be at fault, since a) they served him when he was barred and b) their bouncer put their hands on him first?

I know this is a shot in the dark, but my friend is facing many years in prison for this. And yes, it was a single head-butt that did some major damage.

--Shot in the Dark

Hey Shot:

You’re right, I’m not a lawyer. But I have friends who are!

After reading your question, I hollered at my good friend Danned in D.C., who’s a public defender in—you guessed it—Washington, D.C., used to play in a bunch of bands, and has way more tattoos than you. Danned was good enough to take a look at your e-mail and give me his expert response. Disclaimer first:

“As an attorney, I cannot give legal advice based on a letter to the Door Guy, but I can tell you some general things that may help you understand what’s going on. Your friend should ABSOLUTELY get a lawyer in this case and not take anything in this response as actual legal advice.”

If you’re nervously googling about bar fights, I’m guessing your friend doesn’t have a lawyer. So do what Danned says and get one. OK, Danned in D.C., drop some knowledge:

“First of all, there’s a major difference between liabilities in criminal and civil law. In civil law, if your friend were being sued for medical bills for the bouncer’s injuries, he could argue that the bar or bartender were partly responsible for the bouncer’s injuries because they negligently allowed your friend into the bar and served him despite his ‘banned’ status. Even if the facts supported this, though, it would not absolve your friend of his own liability, it would just help the bouncer collect damages (money) from multiple sources.”

(I’m just going to take a minute to remind Shot, Danned in D.C., and all my readers that we at the Door Guy Guild object to the term “bouncer.” We’re Customer Relations and Safety Specialists. Or Worker Bees. Sorry, Danned, please continue.)

“However, in criminal law, a criminal complaint is based on actions taken by an individual and the trial is the government’s opportunity to prove to a jury or judge that the defendant (your friend) engaged in prohibited conduct (head-butt) without justification (e.g., self-defense) or excuse (e.g., mistake).”

In other words, Shot, it seems like the headbuttee (to use what probably isn’t Danned in D.C.-approved legalese) decided to press charges later, possibly because his injuries were a lot worse than he originally realized. That’s perfectly reasonable.

Even if the headbuttee was suing the headbutter in civil court, the fact that the bar could be liable doesn’t make your friend less liable. And since it’s a criminal, not civil, charge, the responsibility falls squarely on your friend, the headbutter. The only way the bar could be considered criminally liable is if it had actively participated in the crime. Here, Danned says it better than me:

“For example, if the bartender had said to your friend, ‘This bouncer is a problem, come in to the bar even though you're banned and head-butt the motherfucker,’ then an argument could be made that there was a conspiracy, or even accomplice liability, for the bartender in the assault. Still, the participation of others in a crime would not absolve your friend of his own liability.”

But what about the fact that your friend was served after being banned? Doesn’t that make it the bar’s fault too? Well, no. If there’s one area of law I am good at, it’s dram shop law, which I wrote a bit about here. In virtually every state in the U.S., if a bar overserves someone and they leave the premises and cause injury to someone, the bar can be held liable. That’s why bartenders and servers and yes, us Door Guys are expected to keep an eye on folks who look like they’re getting too fucked up and cut them off.

But that’s not what happened here. Although the bar staff made an error by not catching that your friend was banned right away, they only fucked up their own policy, not the law. In fact, according to Danned in D.C., “The only real legal effect to being ‘banned’ from a bar or club is that it serves as a trespass notice that you are not welcome on this (or that) private property.  Therefore, in addition to the assault and battery charges, your friend could actually also be charged with trespass for going to the bar after being put on notice that he was ‘banned.’ 

Lastly, Shot, for your specific questions, here’s what Danned in D.C. has to say:

Wouldn't the bar be at fault since they served him when he was barred?

“No, absolutely not.”

Wouldn't the bar be at fault since their bouncer put their hands on him first?

“Again, no. Your friend may have a valid self-defense theory (he NEEDS a lawyer) but that would not put the bar at fault.”

I understand how stressed your friend is, Shot, and I don’t want to be a total prick about this, but the situation you laid out really strikes a chord with me. Your friend made two mistakes that weren’t only stupid and terrible, but were actually, really, truly illegal, and I wonder if he realizes that he really does bear a lot of fault here.

I ask, because in my experience, people never accept responsibility for themselves. I’ve seen it literally hundreds of times over the years, but it never ceases to amaze me. While kicking people out, I’ve had people attack me, question my sexuality, threaten to kill me, swear they’re going to sue me, wave money in my face to show how much more rich and successful than me they are, scream at me that I’m a loser who’s never going to make anything of myself. Hell, I had a guy once try to rip my balls off. And you know what, Shot? None of that ever changed the outcome: They got kicked the fuck out.

Sure, the “bouncer” might have been a dick and shoved your friend while kicking him out. (Not everyone practices the Zen of Swayze the way I do.) But he had no obligation to not be a dick. Nobody working at that bar owed your friend anything, because by being there he was fucking up. Your friend was not entitled to be treated politely because he was fucking up. And when things got hot, your friend—drunk or sober—chose to head-butt the “bouncer.” Which is just fucking up worse.

Violence is a funny thing, Shot. Even in the best situations, with the best intentions, it comes with consequences. In the moment your friend hit the old “head-butt” switch in his brain, he was inviting consequences. If he didn’t want consequences, he should have done the smart thing, known he was busted, and left. I don’t know if he’s ever done anything like this before, but I hope he understands that he fucked up pretty bad. If not, after you follow Danned in D.C.’s advice—get him a lawyer—follow mine and get him some professional help.

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