Defend Assault on Police Officer
What are some common scenarios where you defend charges related to assault or battery against a police officer in Los Angeles County?
When assault or battery charges are brought against a police officer, it is usually a situation in which the police used force against the person bringing about the charges when the police were arresting them. In such cases, the legal process involves gathering evidence, preparing a defense strategy, and presenting the case in court.
Consequently, to justify the use of force against the arrested person, the police are going to say that the person assaulted or battered the police officer and was obstructing justice. Police can't arrest people for no reason.
They can't use violence against people for no reason, especially in today's day and age, because the police are under fire for how they're dealing with people. They've come to realize that they have to justify everything they do. All of a sudden, people are shocked when they are arrested.
For instance, if the police used excessive force during the arrest, this could be a defense strategy. Another strategy could be to prove that the person was not obstructing justice but was exercising their legal rights. These are just a few examples of defense strategies that can be used in such cases.
Battery charges come in if you hit a police officer. Obstruction of justice occurs when you interfere with the police while they're performing their duty.
Unfortunately, a lot of times, police are not performing their duty. They're just being jerks. They order people around, and people respond by not following their orders. Next thing you know, they're beaten up, arrested, and charged with assault, battery, and obstruction of justice.
Sometimes, there's video evidence and witnesses. The biggest problem with cases against officers is that the prosecutors protect them. When I get these cases, I point out all the issues with the case to the prosecutor.
I tell them how it doesn't make any sense that my client would snap and attack a police officer all of a sudden. However, the prosecutor's instinct is to protect the police officer. In these cases, not only will the prosecution not drop the charges, but they often want to give a worse punishment than you would usually see in that type of case because it involves law enforcement.
Hopefully, in today's day, where people are videotaping the police, doing bad things to people, severely hurting people, and even murdering people, the prosecutors get to see that now. I'm hoping that the pendulum swings in the right direction.
When I present the argument to the prosecutor that my client is innocent, that the police overstepped their bounds and are now attempting to justify their actions by fabricating charges, I do so with the hope that the prosecutor will see the truth. This hope is bolstered by the current climate, where instances of police misconduct are being captured on video, and officers are being held accountable across the country.
It is possible because of what's happening on TV and all the police officers who are being prosecuted throughout the country.
Does Assaulting a Police Officer Necessarily Mean Physical Harm?
If the charge is only assault on a police officer, that usually means that there was no physical contact between the person who's being accused and the police officer. Now, the reverse could be true.
It could happen when the police say that you assaulted them, and they, in turn, beat you up, dragged you away, and handcuffed you. But assault usually has the connotation that you didn't have any contact with the other person, whether it's a police officer or anybody else.
Assaultive behavior would be if you pretend to hit a police officer or swing at a police officer but don't make contact. They can't charge you with a battery because you didn't hit the person. Battery requires harmful or offensive contact. They'll use the assault where someone comes close to making contact, and it's uncooperative.
It's important to note that assault charges are not a common occurrence. The scenario where a crime is committed without physical contact is rare. Unless you're involved in a situation unrelated to assault, such as theft, assault charges are not typical.
On the other hand, I commonly see the police charge individuals with obstruction of justice or resisting arrest. It's funny, though, I often tell the prosecutor, “Well, wait a minute, why were these people arrested?
You have charged them with resisting arrest under California Penal Code 148(a), but they didn't do anything to be arrested? They didn't cooperate with the police. That's not a crime.” The only time they could get you for a crime for not cooperating with the police is if you're interfering with the police while they're performing their duties.
For example, let's say that the police are called out to a domestic violence case in which a father allegedly hit his daughter. If the father tells the police that they cannot go into his house and keeps resisting even when the police tell him that they received a 911 call from his daughter saying that he punched her in the eye, that father is going to be taken into custody right then and there.
They're going to charge him with obstruction of justice because the police need to make sure that the daughter is okay. That gives you an idea of when the police are allowed to arrest somebody for obstruction of justice.
But, when you're talking about assault on a police officer, it's usually going to be a situation in which you're arguing with the police, not cooperating with them, and involved in something criminal short of actually touching the police officer.
Is Resisting Arrest Considered the Same as Assaulting a Police Officer?
Resisting arrest and assaulting a police officer are distinct offenses. If the police instruct you to cooperate and you refuse, leading to your arrest, that's resisting arrest. It's not necessarily assault, which involves physical harm or the threat of it.
Assault is some affirmative act by you. You have actually to do something that is considered criminal. For example, if you whip your right hand out like you're going to punch the police in the face as they're dealing with you, and you stop short of the police officer's face, that would be assault. It would be assault because it looked like you were going to do something criminal, and you stopped short.
Is Assault on Police Officer a Misdemeanor or Felony under California law?
Assaulting a police officer is typically a misdemeanor because you're not making contact with the police officer. It won't rise to the level of a felony unless there is some felony behavior.
For instance, if there is a weapon involved, or if an officer tries to grab the person, they struggle, falls on the ground, and the officer breaks their arm, that's going to be a felony. They're most likely going to charge you with a felony battery.
They're going to say that you caused serious bodily injury to the police officer. But typically, with assault charges, even though that kind of broad term is used a lot to describe contact with the police, that's unlawful.
Those are not very serious charges because nobody is getting hurt. No physical contact is made by a potential defendant against the police.
Usually, they're just being uncooperative. The police are generally the ones who make physical contact by grabbing the person, putting handcuffs on them, and sometimes physically hitting them to get them under control.
It depends on the circumstances surrounding the case. It will depend on whether someone is going to be charged with assault or battery and whether it's going to be a felony or misdemeanor. Battery on a police officer is defined under California Penal Code 243.
Felonies are much more severe than misdemeanors. To rise to the level of a felony, the conduct has to be very serious. In Los Angeles County, if it's not very serious conduct, they will typically file a misdemeanor case. As much as the prosecutors like to file felonies, they won't be able to do that unless they can show severe actual conduct on the accused's part.
How Can I Get a Fair Chance If Charged with Assault on a Police Officer?
If you have been charged with assaulting a police officer in LA County, you're entitled to your investigation. You can hire a defense lawyer like myself. I can get my investigator involved, and we can gather our evidence.
Moreover, the defense must examine all the evidence the police gather. Prosecutors must make it available. They must give the defense a copy of whatever paperwork relates to the case and give access to any evidence that they collect.
Let's say they took your phone and are claiming that there's some incriminating evidence on it, but you say there's evidence that exonerates you; we can access the phone, look at everything, and download it.
Additionally, they must turn over witness statements when they take witness statements. The defense can talk to those witnesses with their investigator and get information.
So, even though the police usually control the evidence, the defense still needs to look at the evidence. It also means that the defense can do their investigation related to the case.
When you have somebody like me, who's been doing criminal defense for 26 years, worked for the DA's office, and worked for a judge who was a criminal defense attorney in 1994, we won't get cheated on the evidence.
I'm going to get all the evidence and review it. It can all be planted toward the defense. We will honestly discuss the case, the evidence, and the best strategy moving forward.
Cross-Examination of Police Officer Testimony
Also, in cases that involve police officers, the jury is instructed to treat the officer's testimony the same as any other testimony. If the police are lying about something, and your defense attorney is skilled enough to bring that out, the jury will see they're not telling the truth. I cross-examine these officers all day.
I've been doing it for 26 years, and it is very effective if we have prior inconsistent statements from the police. If we have evidence that invalidates the police's version of events, we will present it.
We can even call witnesses to counteract the police's version of events. And so, the police are treated just like any other witness. Criminal defense attorneys in Los Angeles can verbally attack them with cross-examination and ensure their credibility is undermined.
I've had many cases where I've been able to show that police officers are not telling the truth. I've been able to cross-examine them effectively. They'll often testify at a hearing before the trial, which is called a preliminary hearing under penalty of perjury.
There will be a transcript of it; if they start to lie, we can use it to impeach it. We can say, “Wait a minute, sir, you testified under penalty of perjury at a different hearing, and you said that the car was red, and now you're saying the car is black.
So, which is it? You testified two times under penalty of perjury and said two different things. How can we trust your testimony if you lie like that?”
Consequently, they're subject to impeachment and cross-examination like anyone else. Skilled attorneys know how to deal with the police when they try to manipulate the evidence or lie.
