Security, Police Training, and perceptions...

[JP3]

Sadly not just the public feels that way. I charged a guy with assault for punching me and the judge said police officers can't be assaulted it's part of your job description.
He threw the charge out.

Well, then... he's wrong. Judge's are people too, and sometimes people suck. I don't know where you are, but here in Texas Assault on a Public Servant (all types of peace officers, fireman, EMS personnel and any other type of public employee qualify) is a felony. Check out the below.

Texas Penal Code 22.01 -- Assault

(b) An offense under Subsection (a)(1) [THE USUAL INTENTIONALLY CAUSED OFFENSIVE OR HARMFUL CONTACT STATEMENT] is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:

(1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; .....

But, as I was a-Googleing, the below caught my notice...

Texas Penal Code 9.31 - Self Defense

(c) The use of force to resist an arrest or search is justified:

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.


(I'm not saying that you were acting in the wrong, I just found that part really interesting.

Oh, here's something that absolutely sets up Texas for folks for our stereotypes.... (this is funny to me):

Texas Penal Code 9.21 -- Justification (more self-defense stuff)

(c) The use of deadly force is not justified under this section unless the actor reasonably believes the deadly force is specifically required by statute or unless it occurs in the lawful conduct of war. If deadly force is so justified, there is no duty to retreat before using it.

Something I find cynically funny in the above:

"unless it occurs in the lawful conduct of war"

Anyone ever heard of the "War on Terror," or the "War on Drugs?" Shoot, that's wide open territory, right there.

 

[Juany118]

Here assaulting a police constable ( all police are constables regardless of rank as they all carry the same powers of arrest) is a criminal offence in itself. From the Police Act 1996
"89 Assaults on constables.E+W

(1)Any person who assaults a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(2)Any person who resists or wilfully obstructs a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale, or to both.

(3)This section also applies to a constable who is a member of a police force maintained in Scotland or Northern Ireland when he is executing a warrant, or otherwise acting in England or Wales, by virtue of any enactment conferring powers on him in England and Wales."

So, his theory is that "assault and battery on a police officer" is not a valid charge??

Its a crime in the US as well. In my State it is a felony, even if the officer suffers little evidence of injury. However the Judge can chose to dismiss a case at a Preliminary Hearing for basically any reason they see fit and I have had judges tell me "if the officer isn't breathing through a tube in the ICU I am not holding an assault charge, you guys get paid to a take a hit or two." I've other judges take toe "right" view as well. Takes all kinds I guess.

 

[Gerry Seymour]

Its a crime in the US as well. In my State it is a felony, even if the officer suffers little evidence of injury. However the Judge can chose to dismiss a case at a Preliminary Hearing for basically any reason they see fit and I have had judges tell me "if the officer isn't breathing through a tube in the ICU I am not holding an assault charge, you guys get paid to a take a hit or two." I've other judges take toe "right" view as well. Takes all kinds I guess.

Has he seen y'all's paychecks?? Wow. Just, wow.

 

[ballen0351]

So, his theory is that "assault and battery on a police officer" is not a valid charge??

Correct I arrested the guy on a warrant he fought me. So in addition to the warrant I charged resisting arrest and assault with me as the vicitm. the judge said I can't be a victim of assault during an arrest because it part of my job description

 

[Gerry Seymour]

Correct I arrested the guy on a warrant he fought me. So in addition to the warrant I charged revisiting arrest and assault with me as the vicitm. the judge said I can't be a victim of assault during an arrest because it part of my job description

That would be an odd job description, indeed, my friend.

 

[ballen0351]

It was kinda funny because even the defense atty said "What?" The state appealed the dismissal of the charge and the Higher court said the judge was grossly incorrect. The just was old and had been making really strange rulings over the last year or 2 and shortly after we won the appeal he retired.

The defense atty was pissed too because he knew we would appeal and his client would get hammered at the circuit courts

 

[Gerry Seymour]

It was kinda funny because even the defense atty said "What?" The state appealed the dismissal of the charge and the Higher court said the judge was grossly incorrect. The just was old and had been making really strange rulings over the last year or 2 and shortly after we won the appeal he retired.

In the ancient Irish courts of the Brehons, he'd have been forced out of office for making such rulings.

 

[Juany118]

In the ancient Irish courts of the Brehons, he'd have been forced out of office for making such rulings.

Look at what it took to get a judge in the US simply suspended and he was actually ordering people to disobey a Supreme Court Decision. Our system is set up with a lot of hurdles to protect the independence of the Judiciary.

 

[Gerry Seymour]

Look at what it took to get a judge in the US simply suspended and he was actually ordering people to disobey a Supreme Court Decision. Our system is set up with a lot of hurdles to protect the independence of the Judiciary.

Even the best systems break at times.

 

[jks9199]

Correct I arrested the guy on a warrant he fought me. So in addition to the warrant I charged resisting arrest and assault with me as the vicitm. the judge said I can't be a victim of assault during an arrest because it part of my job description

Unfortunately, a fair number of judges and magistrates feel an officer is not assaulted if the officer is not injured... sometimes not unless they required medical treatment. "No bandages, no assault on an officer..."

Though I can see a problem with charging both resisting and assault, since the actions of the assault are arguably an element of the resisting, depending on specific charges and wording. We have basically three levels of "resisting arrest" -- obstruction of justice, escape without force, and resisting -- and which is charged depends on the officer, magistrate, and prosecutor. Then you have assault or malicious bodily injury to an officer (two separate offenses depending on the seriousness of the likely injury)... So I can see a magistrate or judge deciding that it's not "really" assault -- even if I don't agree.

 

[Juany118]

Unfortunately, a fair number of judges and magistrates feel an officer is not assaulted if the officer is not injured... sometimes not unless they required medical treatment. "No bandages, no assault on an officer..."

Though I can see a problem with charging both resisting and assault, since the actions of the assault are arguably an element of the resisting, depending on specific charges and wording. We have basically three levels of "resisting arrest" -- obstruction of justice, escape without force, and resisting -- and which is charged depends on the officer, magistrate, and prosecutor. Then you have assault or malicious bodily injury to an officer (two separate offenses depending on the seriousness of the likely injury)... So I can see a magistrate or judge deciding that it's not "really" assault -- even if I don't agree.

Well the thing is often you will have the related elements of a crime. To the point regarding the laws in my state...

§ 2702. Aggravated assault.

(a) Offense defined.--A person is guilty of aggravated assault if he:

(2) attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to any of the officers, agents, employees or other persons enumerated in subsection (c) or to an employee of an agency, company or other entity engaged in public transportation, while in the performance of duty;

(3) attempts to cause or intentionally or knowingly causes bodily injury to any of the officers, agents, employees or other persons enumerated in subsection (c), in the performance of duty;

§ 2701. Simple assault.

(a) Offense defined.--Except as provided under section 2702 (relating to aggravated assault), a person is guilty of assault if he:

(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;

§ 2709. Harassment.

(a) Offense defined.--A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person:

(1) strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the same;

§ 5104. Resisting arrest or other law enforcement.
A person commits a misdemeanor of the second degree if, with
the intent of preventing a public servant from effecting a
lawful arrest or discharging any other duty, the person creates
a substantial risk of bodily injury to the public servant or
anyone else, or employs means justifying or requiring
substantial force to overcome the resistance.

If the elements are the same, and Prima Facie can be found, they should all at least make the pretrial conference. If the DA then decides to us the Agg Assault felonies to get a plea deal on the Misdemeanors and Summary offenses that's on them but as a fact finder the Judge should only be interested in whether the elements of the crime were proven. At least that's my take /shrug

 

[Tez3]

Its a crime in the US as well. In my State it is a felony, even if the officer suffers little evidence of injury. However the Judge can chose to dismiss a case at a Preliminary Hearing for basically any reason they see fit and I have had judges tell me "if the officer isn't breathing through a tube in the ICU I am not holding an assault charge, you guys get paid to a take a hit or two." I've other judges take toe "right" view as well. Takes all kinds I guess.

I wanted to 'dislike' your post but that would give the wrong impression! Actually I think that is terrible! Are your judges political appointees? Ours aren't. Judicial Appointments Commission - Wikipedia

 

[Juany118]

I wanted to 'dislike' your post but that would give the wrong impression! Actually I think that is terrible! Are your judges political appointees? Ours aren't. Judicial Appointments Commission - Wikipedia

It depends on the State. Some are elected, others are appointed, some after getting elected simply face a regular vote reaffirming their position. Federally they are appointed.

There is a movement to have the selection of judges standardized and based on a "merit selection" process, but many people miss the point that Judges are supposed to be beyond the political process as a "check" against populism and so these movements typically go no where.

It can be even more complicated by systems like my State has. Outside the biggest of Cities the Judges don't even have to be attorneys. I have seen local magistrates who are former cops, High School "shop" teachers, even former school bus drivers. Now they have to go to a school and pass it and the County Judges and above still have to be Attorneys so its not COMPLETE chaos but still it's "interesting"

 

[Tez3]

We have magistrates who are lay people here ( England and Wales, the other countries have their own systems) they deal with the minor offences, it actually works well. We've had them since c12th century. I was thinking about it but got more involved in Girl Guiding than I intended to lol.
Become a magistrate - GOV.UK

 

[Juany118]

We have magistrates who are lay people here ( England and Wales, the other countries have their own systems) they deal with the minor offences, it actually works well. We've had them since c12th century. I was thinking about it but got more involved in Girl Guiding than I intended to lol.
Become a magistrate - GOV.UK

Well that makes sense then, since Pennsylvania was "founded" with Philadelphia as the Capital of the "Colony" in the Commonwealth (technically we still refer to ourselves as the Commonwealth of Pennsylvania and not "State", one of 4 of the 50 to insist on it. Gotta love history and pride ) in 1682.

 

[ballen0351]

Unfortunately, a fair number of judges and magistrates feel an officer is not assaulted if the officer is not injured... sometimes not unless they required medical treatment. "No bandages, no assault on an officer..."

Though I can see a problem with charging both resisting and assault, since the actions of the assault are arguably an element of the resisting, depending on specific charges and wording. We have basically three levels of "resisting arrest" -- obstruction of justice, escape without force, and resisting -- and which is charged depends on the officer, magistrate, and prosecutor. Then you have assault or malicious bodily injury to an officer (two separate offenses depending on the seriousness of the likely injury)... So I can see a magistrate or judge deciding that it's not "really" assault -- even if I don't agree.

Were only have 1 type of resisting arrest and physical assault isn't an element of the resisting law. Resisting here can be anything from a verbal refusal to comply with a lawful arrest up to killing the officer. You can have resisting without assault but very rarely do you have assault without resisting.

 

[Juany118]

Were only have 1 type of resisting arrest and physical assault isn't an element of the resisting law. Resisting here can be anything from a verbal refusal to comply with a lawful arrest up to killing the officer. You can have resisting without assault but very rarely do you have assault without resisting.

That may be part of the issue then. As I noted in PA the law requires actual physical force (on the part of the suspect or required by the officer) to be an element. Gotta love our system... maybe.

 

[Tgace]

I wanted to 'dislike' your post but that would give the wrong impression! Actually I think that is terrible! Are your judges political appointees? Ours aren't. Judicial Appointments Commission - Wikipedia

Our local judges are elected and many are not lawyers. Higher courts are a combination of elected and appointed positions.

It makes for some "interesting" decisions....

 

[ballen0351]

That may be part of the issue then. As I noted in PA the law requires actual physical force (on the part of the suspect or required by the officer) to be an element. Gotta love our system... maybe.

Our resisting charge is left over from the common law days. We have like 3 or 4 common laws still on the books.

 

[oftheherd1]

Well that makes sense then, since Pennsylvania was "founded" with Philadelphia as the Capital of the "Colony" in the Commonwealth (technically we still refer to ourselves as the Commonwealth of Pennsylvania and not "State", one of 4 of the 50 to insist on it. Gotta love history and pride ) in 1682.

Point taken, but there is a little more to it than that. As I understand it, commonwealth laws tend to lean more towards the old (British and early Colony) common laws. Again, as I understand it, that is less applied to criminal law and more to civil law. But there can be applications of common law in both. A lawyer could no doubt explain it better. The last time I heard a lawyer talk about it was over 20 years ago.