Battery against a Police Officer – Penal Code Sections 243(b) and Penal Code Section 243(c)(2)
Battery of a police officer may occur during detention or resisting arrest. Often times when there is a domestic violence dispute or a confrontation that requires the officers to respond, battery against a police officer may be an issue when the officer is attempt to detain or control the individuals freedom of movement. This usually happens during bar fights, intoxication, public disputes between customers and innkeepers/common careers and domestic violence calls. Sometimes, criminal charges are filed when the police are attempting to detain the individual who did not start the confrontation but the commotion lead to the arrest.
Under California Penal Code section 243(b) and Penal Code 243(c)(2) when the defendant is charged with battery against a peace officer the People must prove the following elements:
- That there was a peace officer performing his or her duties;
- The defendant willfully and unlawfully touched the officer in a harmful or offensive manner; and
- When the defendant acted, he or she knew, or reasonably should have known, that the person was a peace officer who was performing his or her duties.
If the police officer suffered any injury as a result of the touching, then the district attorney may elect to file the case as a felony battery as oppose to a misdemeanor.
A person commits an act willfully when he or she does it willingly or with purpose to cause a touching. The People do not need to proof that the Defendant did not intend to break the law, hurt someone else, or gain any advantage as long as the Defendant acted by willfully touching the officer and that the defendant knew or reasonably should have known that that the person was a police officer.
Courts have held that the slightest touching can be enough to commit a battery if it is done in a rude or angry way with officer. The touching does not need to be painful or injury the officer but if it does hurt the officer, the district attorney may elect to file the case as a felony.
On a felony battery case against a police officer, the People also need to show that the physical injury was one that required professional medical treatment. The mere fact that the officer sought treatment does not of itself mean that the office was injured. The jury could take into consideration the nature, the extent, and the seriousness of the injury as well as the motive of the officer in seeking treatment. It may just be that the officer sought treatment to encourage a felony filing against the defendant.
Some possible defenses are as follows:
The defendant acted in self-defense or defense of someone else.
The police officer exceeding the scope of force to detain the individual.
The police officer was an undercover officer who did not properly identify himself as a peace officer.
The defendant did not touch the officer in a harmful or offensive manner.
Excessive Force by the Police Officer as a Defense
The court has an obligation to instruct the jury on a jury instruction if the self-defense relates to the use of excessive force. If excessive force is an issue, the court has a duty to instruct the jury that the defendant is not guilty of the offense charged, or any lesser included offense in which lawful performance is an element, if the defendant used reasonable force in response to excessive force. The prosecution has the burden of proving the lawfulness of the arrest beyond a reasonable doubt.
Other Peace Officers
For purposes of Penal Code section 243(b), battery against a person also includes, custodial officer, firefighter, emergency medical technician, lifeguard, security officer, custody assistant, process server, traffic officer, code enforcement officer, animal control officer, or search and rescue member engaged in the performance of his or her duties.
Depending on the facts and circumstances, Penal Code 243(b) and Penal Code 243(c)(1) are wobblers. This means that the can be filed as a misdemeanor or felony or later reduce to a misdemeanor after a felony plea. Upon the arrest of a Penal Code 243(b) or Penal Code 243(c)(1), it is important to hire a qualified criminal attorney during the pre-filing stages as to advocate rejection of the case or reduction of the criminal case before the arraignment. If you have been arrested, call attorney Arthur Khachatourians for a defense consultation – 818-590-8294.
Police officer Was Unlawful Arresting the Defendant
The defendant is not guilty of the crime of battery or assault against a peace officer, if the officer was not lawfully performing his duties because he was unlawfully arresting someone. However, even if the arrest was unlawful, as long as the officer used only reasonable force to accomplish the arrest, the defendant may be guilty of the lesser crime. On the other hand, if the officer used unreasonable or excessive force, and the defendant used only reasonable force in self -defense or defense of other, then the defendant is not guilty of the lesser crime. It is the People’s burden of proving beyond a reasonable doubt that the officer was lawfully performing his or her duties and if the People have not met this burden, the jury must find NOT GUILTY in favor of the defendant.