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Battery on a Peace Officer
If you or a loved one has been arrested or charged or is being investigated for inflicting battery on a police officer, we invite you to contact us online or call us at 310-782-0552 for a free consultation. Our Torrance / Los Angeles criminal defense attorneys have over 53 years of combined experience getting dismissals and acquittals for our clients.
Under California battery law, it is unlawful to willfully apply force or violence upon another person without legal privilege. If you are convicted of having battered a “protected person,” that is, a police officer or a firefighter, rest assured that your sentence will be much harsher.
Many “battery on a peace officer” cases arise out of false accusations by police officers who may not be very fond of a particular arrestee. Thus, the prosecutor may end up filing charges against a person who never committed such a battery. That’s where we come in.
We are McGregor & Ernenwein, the South Bay’s premier criminal defense law firm. For over 53 combined years, our battery defense lawyers have stepped up to the plate and vigorously defended our clients against such spurious claims and false allegations. We have been successful in the super-majority of our cases.
California Battery Law at a Glance
Enunciated in California Penal Code Section 242, the offense of battery is defined as unwanted touching of another person without justification or legal privilege. Regardless of the slightness of the touching, you can be charged and convicted of battery if the touching was offending and unwanted in nature. Assault, a related offense (set out in California Penal Code Section 240), is an attempted unlawful and unwanted touching, in other words, an attempted battery. Battery is, so to speak, a “completed assault.” Assault does not require physical touching; battery does.
In California, battery is “dichotomized” (that is, separated between two categories): simple and aggravated. Simple battery or (“straight battery”) is misdemeanor battery where the defendant has been accused of applying an unwanted or offensive physical touching but with little, if any, bodily injury. Aggravated battery, on the other hand, can be filed as a misdemeanor or felony. The punishment for California misdemeanor “simple” battery is up to half-a-year in the county jail and/or a fine that can be as much as $2,000.
An “aggravated” battery happens when (a) the alleged victim has sustained substantial bodily injury or (b) the alleged victim happens to be a police officer, firefighter, a doctor or a nurse. Whether the prosecutor will file the aggravated battery as a felony or misdemeanor will likely depend on the severity of the physical injury, whether a lethal weapon was involved, and the extent, if any, of the defendant’s criminal history. Note that if you are convicted of a felony aggravated battery, you can be facing significant time in the California state prison.
What does the prosecutor have to prove that I committed “battery on a peace officer” per PC 243(b) & 243(c)(2)?
In order to obtain your conviction for battery on a peace officer, such as a police officer or firefighter, the prosecution must convince the jury as follows:
1) That you inflicted a battery on someone;
2) that person fell under the category of“protected persons” (such as a police officer, firefighter, doctor or nurse);
3) that you did so while that person was in the process of carrying out his or her official duties;
4) that you knew (or reasonably should have known) that the alleged victim was a police officer or other person designated as “protected” under Penal Code 243;
5) and that the alleged victim suffered an physical harm or injury.
Definition of “Peace Officer”
A peace officer is a person whose fundamental task is to carry out law enforcement. This includes police officers (including school or college campus police), sheriff’s deputies, the California Highway Patrol and any other sworn law enforcement officers.
“While engaging in the performance of their duties”
What this means is that the peace officer must have been in the process of carrying out his or her duty as a law enforcement officer. This means that the peace officer could have been placing another person into custody (such as carrying out or trying to carry out a lawful arrest), detaining or attempting to detain a suspect for interrogation, and/or exercising reasonable force in an attempt to carry out a lawful detention or an effectuate an arrest.
However, it should be noted that the officer does not have to be “on duty.” An off-duty cop, such as a peace officer who is privately contracted to carry out private security or bodyguard services, is also a protected person.
“You knew or reasonably should have known”
You did not actually have to be aware that the person you are alleged to have battered was a peace officer. The law will charge you with knowledge if the circumstances would have led a reasonable person to believe that the alleged victim was a cop. If your case goes to trial, a trier of fact (usually a jury – or a judge, if it’s a “bench trial”) will determine if a reasonable person in your shoes would have known that the person you purported battered was a peace officer who was carrying out his or her duties.
Some things that are used to determine whether you “should have known” include the following:
– was the protected person in uniform?
– was the officer trying to handcuff you or someone else?
– was the alleged victim driving a patrol car or other commonly-recognized vehicle (such as an ambulance, fire engine or marked patrol car)?
For example, let’s say Nicky is at a Halloween party dressed up in his “prison blues” costume. He is standing by a window facing the parking lot. He sees people dressed in all sorts of costumes, including many resembling all sorts of occupations and vocations, such as firefighters and nurses. As the night progresses, as the music grows louder and the costumed crowd grows more boisterous, Nicky suddenly sees what appears to be a police officer slapping handcuffs on his friend, Matt. Nicky takes a glance out into the parking lot but he sees no patrol car. Matt grows resistant to the “arrest” and Nicky, thinking that the police officer is really just a costumed guest who is bullying Matt, interferes in the scuffle. He lands a sucker punch on the guest whom he believes to be a costumed police officer. In all the commotion, Matt flees the scene, dropping a plastic bag that seems to contain marijuana. To his horror, Nicky begins to realize that the police officer was not wearing a costume but was, in fact, a real cop: Officer Clubson. As Officer Clubson is writhing in pain on the floor, other police arrive to arrest Nicky on suspicion of violating California Penal Code Section 243(b), battery on a peace officer.
At Nicky’s trial, the prosecutor will argue that Nicky should have known that Officer Clubson was a real police officer because of his uniform and because he was trying to handcuff Matt. However, Nicky’s Torrance criminal defense attorney, battery defense lawyer will probably be able to successfully argue that Nicky could not reasonably have known that Clubson was a real cop because he saw him in a Halloween party where various other guests were dressed as other “protected persons.” And that he looked outside and saw no recognized official vehicle, such as a marked police car. (To boot, he may also have the defense of “defense of others” because he reasonably believed that his friend’s personal safety was in danger). Nicky will probably be successful in having his 243 PC charge dismissed.
Does the injury have to be severe? Is slight injury enough?
Two classes of injury are of import with regards to battery on a peace officer. One is “generic injury” and the other is “severe bodily injury.”
Under California Penal Code 243(c)(1), an “injury” is defined as any bodily injury that necessitates professional medical treatment. It is not required that the officer actually receive medical treatment; what is relevant, rather, is the nature, severity and extent of the injury. The injury sustained by the peace officer must be such that it (a) interferes with physical activity or (b) impairs the officer’s ability to carry out his/her duties.
For example, say that the police are pursuing Henry on the freeway. Henry had failed to pull over even after the police turned on their sirens behind him. Henry eventually pulls over. Officer Willie stops behind him and comes out of with his gun drawn and hands fully extended towards the driver’s side of Henry’s vehicle. Officer Willie furiously yells: “Come out with your hands up!” Willie is standing diagonally behind the door with his hands directly across it’s edge. Henry sees this and purposely opens the door abruptly so as to knock the gun out of the officer’s hand. Officer Willie loses his grip of the gun, which drops on the pavement. He fumbles for it but is able to recover it. However, Henry has already fled on foot. Willie sustains some pain to his wrist but is otherwise able to run after, capture and effectuate Henry’s arrest.
Although the officer sustained an “injury,” Henry’s South Bay criminal defense lawyer can argue that the injury fell short of actually impairing Officer Willie because he was still physical able to carry out the arrest.
Great bodily injury / severe physical harm
If you are alleged to have caused the peace officer “severe bodily injury,” the prosecution can file your case as “Battery against a peace officer alleging injury,” under California Penal Code Section 243(c)(2) and felony battery under California Penal Code section 243(d). In spite of the alleged victim’s status as a peace officer, anyone can be the victim of a felony battery under California Penal Code Section 243(d). The prosecutor may find it preferable to file under this code section because of more stringent penalties attached thereto, including a longer prison sentence.
Serious bodily injury can be exemplified in the following injuries: concussion, gash or wound requiring heavy stitching, shattered bones, deformation and any a sundry other great bodily injuries.
It ought to be noted that simple battery on a police (or other peace) officer is what is known as a “lesser included offense” of felony or aggravated battery on a peace officer. In other words, even if you are not convicted of having inflicted severe bodily injury on the alleged victim, that is, the peace officer, you can still be convicted of simple misdemeanor battery because, but for the element of “great bodily injury,” all the other “elements” of the crime are the same.
What are the penalties for conviction of battery on a peace officer?
Being a “wobbler” offense (that is, chargeable as either a misdemeanor or a felony), California Penal Code Section 243 can carry varying penalties if you are convicted. The prosecutor’s decision as to whether to file it as a felony or misdemeanor depend on (a), whether you have a criminal history and, if so, the nature and extent of your criminal background; (b) the seriousness of bodily injur(y/ies), if any, and; (c) the nature and circumstances of the alleged battery.
Speaking in general terms, if the alleged victim, that is, the peace officer, is not injured, you will likely be charged with misdemeanor 243 PC violation. Obversely, if the officer is injured, the prosecutor will likely opt to file your case as a felony.
If you are convicted of California misdemeanor battery on a police (or other peace) officer, you may suffer the following legal consequences:
– one (1) year in the county jail;
– informal or “summary” probation for up to three (3) years;
– up to $10,000(!) in fines if the officer sustains an injury;
– successful completion of a program for “batterers” and/or anger management classes;
– community labor (e.g., CalTrans)
– restitution to the victim (which can include exorbitant medical bills)
And that’s just for a misdemeanor battery!
If you are convicted of California felony battery on a police (or other peace) officer, you may suffer the following legal consequences:
– a minimum of 16 months and up to two (2) or even three (3) years in the California State Prison;
– if there was serious bodily injury, anywhere from two (2), to three (3) to even four (4) years in State Prison;
– formal (as opposed to informal or “summary”) probation;
– up to a $10,000 fine;
– possibly a “Strike” on your record per California’s Three Strikes Law.
What Defenses Would McGregor & Ernenwein Lawyers Argue to Protect Me from a Conviction of “Battery on a Peace Officer?”
Our experienced, knowledgeable and aggressive criminal defense attorneys can advance the following defenses on your behalf (if applicable in your case):
Unintentional or accidental contact
Battery requires a willful touching. If you made physical contact with a peace officer that was not the result of willfulness, our battery defense lawyers will argue that the “willful” element of battery has not been met and that your battery charge should be dismissed.
Fabricated allegation / false accusation
We have found that many alleged complaining witnesses will initiate a false charge against our clients. The false accusation may be borne out of the vindictiveness or resentment of the accusing police officer. If he or she felt that you “mouthed off” or otherwise provoked him or her, the police officer may have recommended the “battery on a peace officer” charge as a means of retribution against you. Our experienced and skillful criminal defense lawyers with a combined 50+years experience will fight vigorously to expose such deceitful accusations in pursuit of an acquittal or dismissal of your charge.
Is Self-Defense a Valid Legal Defense to a Charge of “Battery on a Peace Officer”?
If you have an honest and reasonable belief that you or a third person is in immediate danger of serious bodily harm, you are you not under a duty to retreat and you may use reasonable force to defend yourself or the other person. In practicality, however, if you used force to fend off violence by a police officer, you will likely also be charged with resisting arrest and any applicable sentencing enhancements. Also, the judicial system has traditionally given the police wide latitude to effectuate force on suspects when they are apprehending them.
Having said that, within the context of a Cal. Pen. Code Section 243 PC charge, there are two occasions when you can successfully avail yourself of “self-defense” in justifying your actions:
1) when a police officer has exerted excessive or otherwise unreasonable force against you, and
2) when a police officer has effectuated a false or unlawful arrest against you.
Excessive force
Where a police officer has exerted excessive or otherwise unreasonable force against you, our criminal defense attorneys can argue that he or she was not engaged in the performance of his duties. Why? Because he or she acted outside the scope of his duty by abusing his or her authority. In such a case, we will argue that you were legally justified in using reasonable force to fend off the excessive force being effectuated upon you.
For example, in keeping with the above “Halloween Party” example, let’s say that Officer Clubson had seen Matt dealing marijuana to the party guests. Officer Clubson confronts Matt and begins to effectuate an arrest. Even though Matt offers up no resistance, Officer Clubson subdues Matt by applying a potentially-lethal choke-hold. Nicky, a black-belt in karate, roundhouse-kicks Officer Clubson in an attempt to save Matt’s life. Nicky is arrested under 243 PC. He hires an experienced and knowledgeable criminal defense attorney who is able to prove up the affirmative defense of “defense of others” and Nicky is absolved.
If your case goes to trial, it is up to the “trier of fact” (i.e., a jury or, if a bench trial, a judge) to determine whether you were justified in applying force on the peace officer. If the amount of force used by the police officer to subdue you was reasonable and the arrest was lawful, you may not be able to avail yourself of “self-defense” or “defense of others.”
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Case Results for Assault & Battery:
- Dismissal of Felony Assault with a Vehicle
- DISMISSAL OF BATTERY CHARGES
- DISMISSAL OF ASSAULT CHARGE & NO JAIL TIME ON VANDALISM CHARGE
- Dismissal of Battery, Vandalism and Public Intoxication Charges!
Awarded: Dismissal of Felony Assault with a Vehicle
Awarded: DISMISSAL OF BATTERY CHARGES
Awarded: DISMISSAL OF ASSAULT CHARGE & NO JAIL TIME ON VANDALISM CHARGE
Awarded: Dismissal of Battery, Vandalism and Public Intoxication Charges
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Law Offices of McGregor & Ernenwein
Crenshaw Professional Building
1405 Crenshaw Boulevard
Torrance, CA 90501
Phone: 310-782-0552
Get Directions