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It seems to me that this post is really about the definition of assault being broader than many people expect. @Lance correctly raised this issue, but I'll just give a little bit more of an explanation.

In common law jurisdictions, the tort of "battery" is the causing of intentional harmful or offensive contact. (A tort is the breach of a civil duty you owe to another person for which you can be sued in court). The tort of assault is different from battery but related -- a person commits assault when they cause another person to have a "reasonable apprehension" of an immediate battery. In other words, assault is not so much about physical violence, but the apprehension violence( so long as its a reasonable and immediate apprehension). If I hit you with a baseball bat in the head, you can sue me for battery. If I swing the bat over your head and miss, I've made you apprehend a battery, and I am guilty of assault, but not battery. If I point a gun at you, I'm guilty of assault again. But if you know for a fact that the gun is unloaded, and you have no fear of getting shot, that is not assault, because you have no "reasonable" apprehension of the harmful contact.

Understanding the common law tort distinction helps explain why modern criminal statues define "assault" so broadly, and if people understood it they may be less outraged that the U Street man was charged. Criminal law is slightly different from torts, so its not an exact match, and it varies from jurisdiction to jurisdiction. Sometimes the crime of battery is included within "assault", so punching someone in the face (a common law battery) would be criminal assault, but criminal assault also encompasses actions that constitute common law assault.

The statute in this case defines assault against an officer in a way that includes both the common law definition of assault and actions that would be battery at common law. Section (a) of the statue simply defines who is a law enforcement officer for purposes of the section. Presumably there is another provision defining and proscribing punishments for assaults against civilians.

Section (b) is what defines the criminal act--its the key section in this provision. Under that section, as David quoted, assault includes any act where a person "assaults, resists, opposes, impedes, intimidates, or interferes" with a law enforcement officer. Note that they've defined "assault on a police officer" to mean "assault". Presumably, they are referring to common law assault--the reasonable apprehension of an immediate battery. The "resists, opposes, impedes, or intimidates" terms broaden the statute to include other actions that might that might give a police officer a reasonable apprehension that the person was about to commit a battery against them. Although you could write the statute to simply criminalize "assaulting a law enforcement officer," the DC Council likely chose to specify that actions like "impeding" or "intimidating" should also be construed as prohibited by the s statute, because a court might conclude that such actions fall outside traditional common law assault. Such a broadening may make sense given that unlike traditional assaults between civilians, police officers are routinely arresting people, meaning any kind of resistence could reasonably be interpreted as preparation for an actual battery against the officer. The Council likely wanted to protect officer against such behaviors even though they might fall outside traditional common law assault.

Section C, which David quoted first, simply raises the crime from a misdemeanor to a felony if you cause "substantial bodily injury" to the officer. That's all that section does.

Section D just makes sure Court's don't read in a "excusable cause" exception into the law. In other words, its not up to you to determine if your arrest is lawful - you'll have to get a court to do that for you.

I hope that background explains a little better why "assaulting a police officer" is broader than one might initially think. I don't mind criminalizing resistance to arrest, but I do think the officers at U Street crossed the line, and I would hope that minor resistance to arrest would not be interpreted as an excuse for the police to do what they did here.

by DY on May 27, 2011 3:18 pm • link • report