Greater Greater Washington

"Assaulting a police officer" may not mean what you think

Recently, a horrifying video surfaced of Metro Transit Police slamming a man in a wheelchair to the ground where he began bleeding from the head. WMATA said the man fell out of his wheelchair while "resisting arrest" and was "arrested for assault on a police officer."


Image by chriswhite313 on YouTube.

But do you really know what "assaulting a police officer" in DC means?

Quick quiz: Which of the following would be considered "assaulting a police officer"?

  1. Punching a police officer in the face.
  2. Standing behind a gate holding it closed while an officer tries to push it open.
  3. Sitting in your car grabbing the steering wheel while an officer tries to drag you out of your car.
  4. Standing at a Metro station with your hands in your pockets, refusing to take them out of your pockets when an officer commands you to.

If you guessed just #1, you are wrong.

According to the DC Court of Appeals, #1, #2, and #3 all qualify. The US Attorney has argued that #4 does too, but the Court of Appeals said no.

#1 is obvious. If you do that you can be charged with the felony Assaulting a Police Officer (APO). DC law § 22-405, "Assault on member of police force, campus or university special police, or fire department," reads:

(c) A person who violates subsection (b) of this section and causes significant bodily injury to the law enforcement officer, or commits a violent act that creates a grave risk of causing significant bodily injury to the officer, shall be guilty of a felony and, upon conviction, shall be imprisoned not more than 10 years or fined not more than $10,000, or both.
But the law contains another kind of APO, a misdemeanor, which most of us would probably not consider "assaulting" a police officer. It's more like what we think of as "resisting arrest."
(b) Whoever without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer on account of, or while that law enforcement officer is engaged in the performance of his or her official duties shall be guilty of a misdemeanor and, upon conviction, shall be imprisoned not more than 180 days or fined not more than $1,000, or both.
To be guilty of misdemeanor APO, someone might need to only "oppose" a law enforcement officer without cause. Courts have drawn a distinction between "passive" resistance, like slumping to the ground when being arrested in a protest, versus "active" resistance against the officer's actions.

That was the issue in Ava Howard v. United States, 966 A.2d 854 (D.C. 2009). Ms. Howard was arrested by Metro Transit Police at Minnesota Avenue station after getting in an altercation with another passenger. The officer asked Howard to "sit down in the bus bay" and take her hands out of her pockets, which she refused to do.

The officer claims that when he tried to arrest Howard for disorderly conduct, she started "swinging her arms and her elbows" and struck him, but she denies this and the judge in the case did not make a factual finding about the swinging. Instead, he simply convicted her of misdemeanor APO based on not taking her hands out of her pockets. The Court of Appeals found this to be insufficient.

In other cases, the Court of Appeals has upheld APO convictions even without evidence of actions that the average person might consider "assault." In Dolson v. United States, 948 A.2d 1143 (D.C. 2008), Mr. Dolson ran from police and went to his own house, where he went inside a chain link fence. Dolson pushed the gate closed and the officer tried to push it open. The Court of Appeals upheld Dolson's conviction just based on this action, finding it constituted misdemeanor APO.

In Coghill v. United States, 982 A.2d 802 (D.C. 2009), the court upheld a conviction for misdemeanor APO. Mr. Coghill was stopped by police while driving a car, and refused to let police search his car. He then got out of the car at their instruction, but at some point got back in the car. Officers tried to drag him out of the car, but he braced himself against the floorboards and gripped the steering wheel.

Based on that action alone, the court upheld Coghill's conviction. They held that it counts as "assaulting a police officer" just to be "actively interposing some obstacle that precluded the officer from questioning him or attempting to arrest him."

Why does this matter? If someone is convicted of misdemeanor APO, a future employer might look at their record and think they're quite a violent person if they assaulted a police officer. But they might have just panicked and resisted, without even touching or hitting an officer.

If the police respond to someone's resisting arrest by savagely beating you while you lie on the ground, as has happened in a few places, it can be very difficult to file a civil rights lawsuit if you've been convicted of "assaulting a police officer," even if it's again not really what we consider "assaulting."

In one incident, New Jersey police beat a Rutgers student who was lying on the ground, all the while yelling "stop resisting." That led Carlos Miller to say, "I'm beginning to think cops are trained to yell 'stop resisting' when making arrests, even though the suspect might not necessarily be resisting."

It's important to keep in mind that some people really do assault police officers. Police claim, and might or might not be correct, that Ms. Howard was swinging her arms and struck the officers. Mr. Dolson ended up hitting an officer in the face and breaking his nose later on, after the chain link fence shoving match. Neighbors say this was self-defense and the officer was choking Dolson. Without video, we can't really know and that's not the point.

Certainly there are real assaults on police officers which should be prosecuted. But we have also seen many videos where police are the ones doing the beating and claim someone is "assaulting a police officer." It seems unfair to convict people of "assaulting" police officers in those cases where they didn't hit anyone or even try to.

We don't know everything that happened in this wheelchair case. Dwight Harris, the man in the wheelchair, might have been drunk, and might have hit the officers before the video started. Being a police officer is a dangerous job and requires dealing with a lot of potentially violent people.

But there seems to be little reason to grab a man in a wheelchair, slam him to the ground, have him bleed from the head, refuse to help him... and then potentially have a completely legal leg to stand on in criminally charging him for assault. The US Attorney has dropped the charges, likely because of the video. But had the bystander not been recording, Mr. Harris might still be facing charges of "assaulting" the very police officers that did this to him.

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David Alpert is the founder and editor-in-chief of Greater Greater Washington. He worked as a Product Manager for Google for six years and has lived in the Boston, San Francisco, and New York metro areas in addition to Washington, DC. He now lives with his wife and daughter in Dupont Circle. 

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Resist!

by Redline SOS on May 26, 2011 10:44 am • linkreport

You have no idea what this man had done, said, or if he was armed. Our police risk their lives to protect us every day and your presumption of guilt based on this video is pathetic. Why do you pick out the worst examples of police overstepping their boundaries and imply that it is a systemic abuse of power? That's like me finding three murderers named David and saying therefore you must be too! You give a basic disclaimer at the end of your article but your point is clearly somewhere else. How about you thank our officers for what they do rather than undermine their efforts by pointing out two that may or may not have gone a bit too far?

by Pat on May 26, 2011 10:53 am • linkreport

@Pat:
Ummm, did you read this post? David doesn't even talk about this case, other than to describe the incident.

A better comparison, using your example would be:
"I found 3 murders named David. Did you know that murder is when you kill someone? And it's also when you say something mean to them without killing them."

Of course, you can't be charged with murder for not murdering someone. But you can be charged with assaulting a police officer without assaulting one.

The post is about that. Not about the U Street incident.

by Matt Johnson on May 26, 2011 10:56 am • linkreport

It's not about the U Street incident? The article begins and ends talking about the U Street incident. It gives the entire context to the article. Hilarious that someone could think it's not about that.

by Lou on May 26, 2011 11:03 am • linkreport

Great Post. The law needs to be fixed. I'll remeber this when I get arrested in DC.

by mike on May 26, 2011 11:11 am • linkreport

It's tangential to the U Street incident, and worth discussing on its own.

by andrew on May 26, 2011 11:12 am • linkreport

@Matt
Ummm, yes I read the post. Did you? I understand the author spends some time trying to say that police officers are unaccountable for loose standards of whether or not people "assaulted" them. So on top of prefacing the discussion by assuming police brutality, he goes on to imply that people could easily be wrongfully charged with "assaulting" a police officer. If that wasn't the context you want to discuss the laws on "assaulting a police officer," than don't put your article in that context!

by Pat on May 26, 2011 11:15 am • linkreport

As a people, we have done too little scrutinzing of police TRAINING.

by Douglas Willinger on May 26, 2011 11:16 am • linkreport

Did GGW research the number of times polic have slammed people in wheelchairs to the ground but the person DID have a gun? Nooooooo. Think about if the man had a cane. It could have been a CANE GUN!

/sarcasm

by Cassidy on May 26, 2011 11:24 am • linkreport

Also, let's not forget this: http://youtu.be/TAPwyodTkYA

by Cassidy on May 26, 2011 11:26 am • linkreport

I think David touches on an important point: when you accuse someone of assault, the implication is violence against another. If the weaker cases are "assault" then the term looses its power.

by SJE on May 26, 2011 11:33 am • linkreport

"But there seems to be little reason to grab a man in a wheelchair, slam him to the ground, have him bleed from the head, refuse to help him... and then potentially have a completely legal leg to stand on in criminally charging him for assault. The US Attorney has dropped the charges, likely because of the video. But had the bystander not been recording, Mr. Harris might still be facing charges of "assaulting" the very police officers that did this to him."

1) The legal leg for placing an APO charge on him (that I would've charged him with) would be for him actively resisting being placed under arrest. The video shows the Officer taking out his handcuffs and Mr. Harris beginning to tense and bring his arms in. That's enough for an APO charge.

2) The frequency of which the USAO's office papers APO charges is rare. The only time I've seen APO charges papered is when there's a knock-down, drag out fight or when a weapon is involved.

3) I can only speak for MPD procedure, but generally officers are trained in CPR and that's it. We're not EMTs and aren't generally trained to render first aid. If we tried and something went wrong, we'd be on the hook legally for not knowing what we're doing. We're also not paid to potentially contract blood-borne illnesses. If the ambulance is called, that meets the standard for rendering aid.

"Why does this matter? If someone is convicted of misdemeanor APO, a future employer might look at their record and think they're quite a violent person if they assaulted a police officer. But they might have just panicked and resisted, without even touching or hitting an officer."

D.C. is not like other jurisdictions where APO is charged; it is rarely papered, much less prosecuted. There's a slim to no risk for the scenario of someone panicking and resisting and getting charged APO.

"#1 is obvious. If you do that you can be charged with the felony Assaulting a Police Officer (APO)."

Won't happen. A punch is a misdemeanor all day unless it produces unconsciousness. The same standards for assault, aggravated assault, etc. that apply to civilians in D.C. code also apply to us.

_________________________________________

I think David is making a mountain out of a mole hill by making it seem police in D.C. charge APO on everyone who resists. We don't (at least MPD doesn't). If I charged APO on everyone who resisted arrest, about 40% of my arrests would have the charge tacked on.

The question everyone should really be asking/debating is whether or not the force used meets the objective reasonableness test in Graham v. Conner, not "OMG EVERYTHING I MIGHT DO WITH A COP WILL GET ME AN IMAGINARY APO CHARGE IN DC".

by Officer Cicero on May 26, 2011 11:42 am • linkreport

Look, great point. The police all need to be taken down a notch. More than a few cops I'd like to throw a shoe at.

However, the flip side is 95% of police brutality complaints are BS.

It's not an easy balancing act.

by charlie on May 26, 2011 11:43 am • linkreport

Uhmm, Pat the article is titled, "Assaulting a police officer" may not mean what you think.

The ensuing discussion is about the same. David posted briefs of laws which describe how a person can be accused of "assault" w/o actually touching or physically threatening an officer. He adds real life examples of such to prove his point. While the video does not prove the story. It also doesn't prove the wheelchair-bound man had a can or a gun. What it shows is the man being slammed to the ground which I assume is what caused him to bleed.

It shouldn't matter how sympathetic you are to officers, the question really does boil down to an abuse of power. Did the wheelchair-bound man produce enough of a threat that he needed to be subdued by being slammed to the ground. He can't walk. So I can't imagine the officers saw him as much of a threat.

@Officer Cicero, Excuse me Mr Officer, but on point #1, you simply repeated and cosigned what David already said.

by HogWash on May 26, 2011 12:03 pm • linkreport

Officer Cicero,

It may be that most people aren't charged with APO when they were resisting but as David pointed out it does happen. Even if it is rare.

So it makes sense to rationilize the law and take away the possibility that someone could be charged with APO when they were resisting.

by John on May 26, 2011 12:07 pm • linkreport

"@Officer Cicero, Excuse me Mr Officer, but on point #1, you simply repeated and cosigned what David already said."

You're right...I haven't had my coffee yet this morning!

by Officer Cicero on May 26, 2011 12:07 pm • linkreport

Any news on what actions are being taken with respect to the officers who assaulted the guy in the wheelchair? Are they on suspension? Have charges been filed? No matter what the guy in the wheelchair said or did there can be no justification for what they did. They're dangerous and shouldn't be on our streets.

by Lance on May 26, 2011 12:08 pm • linkreport

@Lance

The officers in question has been reassigned to administrative duty pending an investigation:

http://www.washingtonpost.com/national/2-metro-officers-suspended-after-scuffle-with-man-in-wheelchair-mans-assault-charge-dropped/2011/05/25/AGHUFABH_story.html

by Dizzy on May 26, 2011 12:15 pm • linkreport

In terms of Officer Cicero's point, having the misdeameror charge also gives the option to plea bargain away some defendants.

by charlie on May 26, 2011 12:24 pm • linkreport

@Pat
The "he/she might have had a gun" argument is completely ridiculous because it can be used against anyone at any time effectively giving cops complete authority to assault anyone they please..Police are here to protect us, arbitrarily beating down people who may have a gun does not fit that description.

by Matt R on May 26, 2011 12:27 pm • linkreport

I'm perplexed by the commentors who seem to think there's something anti-police about this post. All David did was analyze a couple of sections of the DC Code with case law, and point out the fact that there's a potential for injustice there.

Having unjust statutory authority that isn't enforced doesn't really make the law itself any more just, and maintains a potential for a prosecutor and a court to do injustice. Having confusingly worded statutory authority increases the likelihood for individuals to misunderstand the laws to which they are accountable.

That is to say, I read David's post as plea for laws that better reflect the reality of policing, rather than some screed against a barrage of unjust policing made possible by this code section.

by Lucre on May 26, 2011 12:52 pm • linkreport

I was on a jury about 4 years ago hearing an assault case that dealt with this issue. We struggled with the language of the law because a literal reading would mean that just getting in the officer's way (i.e., "impeding") would be considered "assault." We debated this back and forth, with some saying that we didn't care what the language said, assault meant physically, intentionally hitting the officer; the other side took the literal reading and insisted that just "impeding" the officer was assault, and therefore our defendant was guilty.

We were so confused that we went back to the judge for clarification; he would not give it to us, merely re-read the statute (my case was apparently before the Court of Appeals decisions noted in the article, which might have provided the judge an opportunity to explain more).

In the end, we acquitted the defendant on one count of assault and were hung on the 2nd count (there were two correctional officers involved; the defendant was an inmate at the DC Jail, which apparently doesn't have any cameras because they were never submitted as evidence).

by drk on May 26, 2011 1:01 pm • linkreport

To be guilty of misdemeanor APO, someone might need to only "oppose" a law enforcement officer without cause.

Soo... basically any time someone refuses to follow an officer's order, whatever it is, that's assault. And then they can slam you to the ground and arrest you. Any cop can make up a story after the fact.

@ Officer Cicero:OMG EVERYTHING I MIGHT DO WITH A COP WILL GET ME AN IMAGINARY APO CHARGE IN DC

OMG EVERYTHING I MIGHT DO WITH A COP WILL GET ME AN IMAGINARY very real APO CHARGE IN DC.

The way I read this is that any officer can order someone around and get them for assault if they refuse.

Now, is that going to happen a lot? No. But should we trust the police to never abuse their power? No.

The police risk their lives. True. They should be able to protect themselves. True. But the main job of an officer is not to protect himself, but to protect the public. Right now, there seem to be many laws on the book protecting officers, but not the public. The police often treat every person they meet as a potential criminal. This is a wrong approach. The vast majority of the public is lawfully minding its own business, and should be respectfully treated as such.

I wonder what your trained opinion is on *what you can see in the clip*.

by Jasper on May 26, 2011 2:26 pm • linkreport

Jurors need to aquit regarding such abuses of the English language, and those forced to take such pleas or found 'guilty' are entitled to a cash settlement.

by Douglas Willinger on May 26, 2011 2:39 pm • linkreport

One issue here is that misdemeanor APO does not involve a jury trial (unless it goes with more serious charges). So while a jury might agree that this interpretation of the language is silly, a judge will apply the law strictly as written.

by David Alpert on May 26, 2011 2:41 pm • linkreport

The reason why the reasonableness of the legal definition can be stretched to such absurd lengths is that rarely do you see any ramifications to the officers indulging in these outrageous behaviors. For example, in the case, I bet we, the taxpayers, will end up footing the bill of a multi-million-dollar lawsuit, which the officers in question get a slap on the hand at best. That won't do anything to deter future actions like this. Now if an example instead were made of the officers with jail time and fines, then I bet we'd see a more reasonable definition of assault being more widely understood.

by Lance on May 26, 2011 2:42 pm • linkreport

Btw, what ever happened to the officer who killed the dog at the Adams Morgan festival? It seems like it was all in the news as it happened ... then we heard it was being investigated ... and then we heard that the head of the rescue place was going to sue ... and then ... nothing ....

by Lance on May 26, 2011 2:43 pm • linkreport

This debate is about whether the guy is guilty of a crime, which is fine.

However, it's completely irrelevant to whether he needed to be thrown to the ground.

From what I saw, the cops were also guilty of a crime.

by rider on May 26, 2011 2:46 pm • linkreport

Then the judge should be personally liable for allowing legislatures to twist language. Our courts are way too compliant with legislative assemblyies- marking the failure of the Republic.

by Douglas Willinger on May 26, 2011 2:46 pm • linkreport

+ 1 lance.

by charlie on May 26, 2011 2:53 pm • linkreport

To the officer's point -

I can easily see from the patrolman's position that if the law isn't charged often, it's not something to worry about. But from the citizen's position, if I see an unjust law that COULD be used against me by the state, then I want that law removed and it is a big deal. Not to overstate the point, but the country was founded on not trusting the state. Giving the police and/or prosecutors this power and then trusting them not to use it / abuse it? No thanks.

David - it sounds like you are assuming that judges have no leniency or are not willing to use it. Why? Frankly, I'd place more faith in the judge than I would in a jury in many cases. It's what they are trained to do - interpret the law.

by Josh S on May 26, 2011 3:17 pm • linkreport

@rider However, it's completely irrelevant to whether he needed to be thrown to the ground.

From what I saw, the cops were also guilty of a crime.

That's a good point. I think the cops would have a hard time claiming they had to smash an invalid's head to the ground tp protect themselves. I mean what was he going to do if they hadn't done that ... run them down with his wheel chair?

by Lance on May 26, 2011 3:24 pm • linkreport

@ douglas winger - Do you understand anything about government at all? Are you really saying that judges as individuals should be responsible for the actions of the legislatures? They aren't "allowing" anything. WE elect the legislators - the voters. If anyone is responsible for their twisting of the language, is the public that voted them into office - not judges who are required by their oaths of office to follow the law.

by jen on May 26, 2011 3:26 pm • linkreport

This article and subsequent discussion is about broader issues than the incident involving Dwight Harris and the Metro police officers. But, this incident was the trigger for the article and the discussion.

We obviously don't know all the facts, so I won't weigh in on whether or not Harris assaulted a police officer. I don't know if there were any weapons involved, although Metro's account and the accounts in the media make no reference to Harris having weapons or being suspected of having weapons.

My concern is not whether or not Harris should have been arrested. My concerns are (1) what appears to be an excessive use of force by two standing officers to arrest a man seated in a power wheelchair and (2) the fact that the officers did the two things that even the DOJ strongly advises against in its training materials for police officers interacting with people who use wheelchairs.

First, the officers removed Harris from his wheelchair, which they should never do unless it is absolutely necessary. I will let the facts sort out if it was necessary.

Second, they cuffed him from behind, which really can cause a person in a wheelchair to lose his or her balance and fall forward. The DOJ video recommends cuffing from the front for this reason.

Regardless of who is at fault for what, I don't want to see the police make these same seemingly unnecessary mistakes again when they need to arrest a person who uses a wheelchair.

People with disabilities sometimes break the law and should be held just as accountable as anyone else who breaks the law. No doubt. But, in addition to investigating this case, I think there needs to be some training for the force. I truly never want to see something like this happen again.

Here's the DOJ training resource I mention:
http://www.ada.gov/policevideo/sect2qtbb.htm

by Penny Everline on May 26, 2011 3:38 pm • linkreport

If people aren't reading Radley Balko, they should be.

by Kolohe on May 26, 2011 4:53 pm • linkreport

jen- do YOU know anything about the law- the supreme law being the Constitution.

Yes, many judges are guilty of violating the Constitution when they fail to strike down unconstitutional statues, such as that cigarette-protection scheme of the 'war on drugs', as well as sentence people in clear violation of the 8th amendment.

Think of how much $$ would have been saved if judges respected the Constitution rather then being rubber stamps for legislative bodies. Billions wasted which could better go to transport infrastructure.
You fail to understand the difference between 'democracy' and 'republic.'

by Douglas Willinger on May 26, 2011 4:55 pm • linkreport

Kolohe- Absolutely yes!

Balko is now at Huffington Post:

http://www.huffingtonpost.com/2011/05/25/jose-guerena-arizona-_n_867020.html

Also see his blog:

http://www.theagitator.com/

by Douglas Willinger on May 26, 2011 5:00 pm • linkreport

As a practical matter, it behooves each of us to be prepared to do exactly as any officer demands, or even suggests. The possible consequences of not doing so, regardless of any later redress in the courts, is frightening to most of the peaceable public. It is fine to be right, but it may be better to not bleed all over the place.

by geezer on May 26, 2011 5:34 pm • linkreport

Welcome to our official police state.

It behooves you to do exactly as any police officer demands, suggests or vaguely thinks about. You citizen have no rights not provided to you by your police. To date, police have provided you with none.

Now watch, as the valiant police shoot your dog, whilst giving free escorts to rich and famous visitors.

by greent on May 26, 2011 5:59 pm • linkreport

I think you're putting too much weight on the *title* of a section of the code, a title which basically has no legal significance. I'm sure there are lots of crimes that are contained within sections with titles that don't really fit everything in them.

by David desJardins on May 26, 2011 6:48 pm • linkreport

Actually, I do remember learning in Law101 that in 'assault and battery' it's the battery part that is the physical contact. The battery part, despite common usage, doesn't involve the actual physical part:

'At Common Law, an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact.

http://legal-dictionary.thefreedictionary.com/Assault+(crime)

So, technically, I guess they're correct in claiming battery ... provided they can prove there was 'an apprehension'. Problem here is that, like the Gays in the Military issue where it was claimed that disruption would be caused by integrating gays into the military, how can you control how another person feels? And why should you have to? If seeing someone in a wheelchair drunk makes you apprehensive, I'd say the problem lies with you and not with that person. In any case, if this thing ever manifests itself as a criminal case, it's going to be interesting watching these cops try to explain how they were apprehensive of a drunk guy in a wheelchair. Of course, we all know it'll never come to that. The District will be sued for $10 Million ... settle for $1.5 Million and everyone will go home happy ... except for the taxpayer who'll be left holding the short end of this.

by Lance on May 26, 2011 8:57 pm • linkreport

error:

should read:

Actually, I do remember learning in Law101 that in 'assault and battery' it's the battery part that is the physical contact. The ASSAULT part, despite common usage, doesn't involve the actual physical part:

by Lance on May 26, 2011 8:58 pm • linkreport

David D: It's not just the title of the section. This is what the charge is. The folks in the cited cases were charged with "misdemeanor APO," not "some misdemeanor in the chapter that happens to be called APO." If someone gets charged with it, the jury will be asked to hand down a verdict on "assaulting a police officer." If they're convicted, their record will record a conviction for "assaulting a police officer."

I have absolutely no problem with this if what they did is the sort of thing that the typical person would consider "assault"; the issue is that sometimes it's not and it's still legally called "assaulting a police officer."

by David Alpert on May 26, 2011 9:28 pm • linkreport

David D: It's not just the title of the section. This is what the charge is.

I am not a lawyer, but I don't think this is legally correct. People are charged with violating a particular statute, by number. The title is just a way of referring to it.

by David desJardins on May 26, 2011 9:30 pm • linkreport

My wife is a lawyer, and believe me, you are incorrect. Maybe it's different in California, but in DC, the court opinions and so forth list the criminal count by name as well as by number.

Furthermore, the news story in question said that Harris was arrested for assaulting a police officer. That is what WMATA officials told the press. The officials did not tell the press, and the press did not report, that Harris was arrested for "violations of D.C. Code § 22-405(a)."

by David Alpert on May 26, 2011 9:49 pm • linkreport

Thank you Penny for your post. It really irrated me to watch the news and hear people say that disabled individuals wouldn't hurt anybody. Not but a few days after the Harris case was Metro PD successful in locking up a different wheelchair bound individual who had stabbed a victim in their head with a knife. But the good lock ups are never displayed to the community.

by guest on May 26, 2011 10:03 pm • linkreport

Furthermore, the news story in question said that Harris was arrested for assaulting a police officer.

Of course, that doesn't imply anything about the law, just about the media.

I'll defer to your wife on DC law, though.

by David desJardins on May 26, 2011 10:27 pm • linkreport

Not but a few days after the Harris case was Metro PD successful in locking up a different wheelchair bound individual who had stabbed a victim in their head with a knife.

Can you give details? Honestly, on the surface this sounds like BS. I mean was the cop so old and so fat they couldn't outrun the wheelchair? Please, details or quit insulting our intelligence.

by Lance on May 26, 2011 10:32 pm • linkreport

The problem I see with the U Street case is that the man in a wheelchair is relatively easily subdued (by the time the officers lift him from the chair, its obvious that they have the upper hand) and, yet, they still insisted upon slamming him to the ground. Further, there seems to be little reason for that action, as the police could have just handcuffed him and placed him back in the wheelchair. Instead, they smacked him into the pavement and left him in a prone position. Whether he "assaulted" anyone or not is relatively immaterial to me. The problem I have is that the officers needed two steps to subdue this man and they took five.

As to the story as a whole, I think the cases show an interesting dilemma in the law. Certainly, re-working the law to eliminate the misdemeanor would solve some complaints about the current application of the law, but it could also invite actions that endanger police officers. As one poster said, its a fine line to walk, indeed.

by J on May 27, 2011 11:29 am • linkreport

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 • linkreport

I didn't bother to read most of the comments because it's easy to guess what they contain.

"Thank the police for doing what you won't","They put their lives at risk", Et Cetera.

The unifying point of all who support the police state is, IMO,:

Because they are keeping us safe, we should give them leeway. We shouldn't examine their use of power. We shouldn't question their judgement. We should basically let them break laws in the name of enforcing laws, i.e: Assault a man in a wheelchair, because he could have a weapon or be dangerous.

No matter the eqregious the behavior there is a huge part of the population that think the police are above reproach. Whether it is arresting people for taking photographs in public, Or Shooting teenagers for dining-and-dashing, or beating up a wheelchair bound person, or tazing a grandmother, or Killing the Mayor's dogs, or killing a Marine in Arizona this week and lying about the cicumstances, or pulling a firearm during a snowball fight, or gunning down an unarmed mental patient in their home or another of the zillion of instances you read about during the news.

And Laws like those quoted above are just the legislature following suit. It is a crime to "oppose" a police officer? So NOT doing what a police officer commands you is illegal? You don't even have to have a bad opinion of the police to see that there are bad police officers. Which means there is a potential abuse-of-power (Even assuming all good cops never abuse their power, which is a stretch), but god forbid you try to have a rational discussion about it, lest you are a police-hater.

Get over yourselves. Your job isn't that hard. Try being a surgeon, or a teacher, or a soldier. Go ahead and invite me to ride along. And I'll invite you take responsibility for a scared kid on an operating table, or a kid for whom school is a shelter from the troubles of home, or to go the other side of the world and really put your life on the line everyday.

I'm not saying that there aren't criminals and that bad shit doesn't occur, but you chose this life, and in America people have rights that can't be abridged in the name of making your job easier.

by Joe on May 27, 2011 6:51 pm • linkreport

David, thank you for the post. I urge your detractors to check out how much impunity there is for police in Baltimore:
"In Baltimore, No One Left To Press Police The Police"
http://www.washingtonpost.com/wp-dyn/content/article/2009/02/27/AR2009022703591.html

by Danila on May 27, 2011 11:49 pm • linkreport

Officer Cicero writes:

" The video shows the Officer taking out his handcuffs and Mr. Harris beginning to tense and bring his arms in. That's enough for an APO charge."

If he's right that tensing and bringing one's arms in -- a natural reaction for anyone who is not accustomed to being handcuffed -- is enough for an APO charge, the law needs to be changed. I am a lawyer and I wouldn't even consider that sufficient for a "resisting arrest" charge unless the arrestee continued to resist after a warning. It certainly does not constitute "assault" in even the broadest understanding of the word.

I do not presume that the police misbehave, but I also do not presume that they do behave. For every videotape of excessive force there are undoubtedly many more instances where police act improperly and then charge individuals with "resisting" or "APO." The police assault on the bicyclist in New York City a year or so ago comes to mind.

And the fact that policing is dangerous and that police officers are, indeed, sometimes assaulted cannot be the all-purpose, all-immunizing answer to the very real problem of officers who think they are the law, and who think "contempt of cop" is a crime.

by Bill on May 28, 2011 6:24 am • linkreport

It seems to me the broader issue is this; should we accept the direction of a law enforcement officer because we respect them or because we fear them?

The reality is that you almost NEVER see a police officer arrested and convicted of assault, no matter how egregious the behavior. The police have little or no incentive to exercise restraint. Far too often we see the application of force that goes way beyond what is necessary to ensure the officer's safety. There seems to be the attitude that officers are entitled to leap into the punishment phase of law enforcement by turning any challenge to the authority of an officer into a *perceived* threat.

In no way am I suggesting that all police officers are prone to the use of excessive force. What I WILL say is that most of them make poor choices when faced with the decision whether to protect their own or act in a manner that contributes to the integrity of the police force and earns the respect and cooperation of the citizenry.

Bottom line for me? You're wasting your time demanding my respect. You earn it or you go without.

by Jim on May 28, 2011 11:07 am • linkreport

Jim,

I do not think they care whether you respect them or not, as long as you fear bodily harm if you do do not do exactly as they say. And they have so many precedents of their behavior being applauded by their peers and the courts that you are essentially without recourse.

by geeezer on May 28, 2011 4:13 pm • linkreport

@Pat - I don't think you really read the article.

by Albert911emt on May 31, 2011 9:02 am • linkreport

A lot of police think they are above the law and they are. Unless they are caught breaking the law on video, they know they will not be held accountable for their actions. Its a flawed system and we need to heavily monitor our police officers and other officials. I would like to see every government worker equipped with a P.O.V cam while on duty to prevent any doubt of unjust or unhonorable actions being committed.

by Law Abiding Citizen on May 20, 2012 4:30 am • linkreport

Just because something is a law, does not mean it is right. It's time to open your eyes, and see the injustices, see the corruption. These men and women are given the power to react however they want and then hide behind their badge and the law, which is usually just as corrupt as they are. There are a few good apples, I too used to believe that they were all brave and honorable. They choose a job none of us want, like garbage collectors, but that is necessary (and dangerous). But, like politicians, what started as good idea has spiraled into something we as normal citizens can no longer control. These people are given power and a gun: one goes straight to the head, the other south of the border. Believe me when I say this; those of you still defending them are simply those who have been lucky enough not to be abused by them YET, and I hope to god you stay lucky and don't have to wait until its your turn to change your mind.

by J on May 26, 2012 11:43 am • linkreport

I have complete respect for officers who do their duty as they are supposed to. But, absolutely none who hide behind a badge and misuse to abuse the power they are given. We don't see a gun or anything in the video

Why is it when a normal citizen breaks the law, they are arrest, but police are given leniency and perhaps fired, suspended or just demoted? When a police officer breaks the law they should be arrested like everyone else.

by Me4563456 on Sep 4, 2012 7:48 pm • linkreport

Quis custodiet ipsos custodes?

We need a force of watchmen to watch the watchmen. We need a separate police for with zero ability to arrest normal citizens, but power to arrest police officers at any level of government (including detectives, agents, FBI, etc).

We also need a constitutional amendment securing the right of citizens to video tape and otherwise record the actions of police officers.

by LittleBrother on Oct 30, 2012 1:46 pm • linkreport

I don't know about other places, but in the state of Virginia you do not even have to resist or do one single thing to be charged with assault. As a cop is barreling down on you if you raise your hands in front of you, open palms facing him, as you say whoa whoa whoa- and he runs into your hands? That is assault according to Virginia...

also an interesting thing to note about Virginia is that an officer can only THINK you MIGHT be planning to or capable of assaulting him and that is a legal definition of assault in the lovely lovely fair state of Virginia. Don't believe it? Call a Virginia commonwealth attorney and ask them...

by A human in america on Nov 19, 2012 11:28 pm • linkreport

I was once threatened with being charged with APO over speaking with my hands. I was told to put them behind my back as i spoke to him, or else he'd charge me because it "makes him feel threatened."

by Randy Randle on Dec 27, 2013 5:21 pm • linkreport

I can easily imagine an angry person gesticulating with their hands in a way that doesn't involve physical contact but feels very threatening.

by David desJardins on Dec 27, 2013 7:07 pm • linkreport

Police have way to much power. It's not innocent until proven guilty its guilty at the cops discrestion. If there is no witnesses the judges believe the cops. This happened to my son he was charged with resisting arrest and assulting a police officer. He ended up with a black eye cut lip and multiple cuts on his face by the fist of the cop. The only person that did see the incident was a taxi driver and he said he seen nothing. The cop kept yelling stop resisting as the cop punched him in the face. It's sad the police can ruin a kids life and there is nothing we can do about it.
Cops have to be held accountable when they lie about charges. Not suspended with pay it should be if they are guilty fired on the spot. Maybe they should wear microphones and cameras at all times and record every arrest. I have zero respect for cops. Sure there may be some good ones. But there are many more that think when they put the uniform on they are above the law.
To all cops out there start doing your job by arresting the criminals and stop destroying innocent peoples lives.

by Rob C on Jan 18, 2014 9:18 am • linkreport

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