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 a usually a situation in which the police used some sort of force against the person bringing about the charges when they were being arrested by the police.
Consequently, in order 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 get arrested.
When they get out, they have charges relating to police assault, battery, and/or obstruction of justice. Assault charges can come about if you're not cooperating with the police, or if you threaten the police. Assault on a police officer is defined under California Penal Code 241(c).
Battery charges comes in if you actually 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 going along with their orders. Next thing you know, they're beaten up, arrested, and charged with assault, battery, and/or 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 natural instinct is to protect the police officer. In these cases, not only will the prosecution not drop the charges, a lot of times they 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.
So now, when I make the argument to the prosecutor that my client didn't doing anything, that the police swept in, took it too far, and are now trying to justify their actions by trumping up charges against this person, it is my hope that the prosecutor will see that it may be true.
It is possible because look at what's happening on TV, and look at all the police officers that 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 normally 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 where the police say that you assaulted them, and they in turn beat you up, drag you away, and handcuff 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 actually make contact. They can't charge you with battery because you didn't hit the person. Battery requires a harmful or offensive contact. They'll use the assault where someone comes close to making contact and it's uncooperative.
The truth is, I don't see a lot of assault charges. If you think about it, what scenario is there that rises to the level of being criminal and you don't make contact with anybody? Unless you're stealing something that doesn't have anything to do with assault, assault charges are not common.
On the other hand, I commonly see the police charge individuals with obstruction of justice or resisting arrest. It's funny, though, a lot of times, I 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 just 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 tells 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 a scenario of when the police are actually 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 the Police Officer?
Resisting an arrest and assaulting a police officer kind of go hand in hand. If the police tell you, in no uncertain terms, “Hey, listen, you have to cooperate with us.” If you don't cooperate with them and they decide to arrest you, and you don't allow them to arrest you by running away from them or not putting your hands behind your back, that would be resisting arrest and not necessarily assault.
Assault is some affirmative act by you. You have to actually 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 definitely 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 really making contact with the police officer. It's not going to rise to the level of a felony unless there is some sort of felony behavior.
For instance, if there is a weapon involved, or if an officer tries to grab the person, they struggle, fall on the ground, and the officer break's his or her 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. There's no physical contact being made by a potential defendant against the police.
Usually, they're just being uncooperative. The police are generally the ones who are doing the physical contact by grabbing the person, putting handcuffs on them, and sometimes physically hitting them in order to get them under control.
It really depends on the circumstances surrounding the case. It will depend on whether or not someone's going to get 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 serious than misdemeanors. In order 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're typically going to file a misdemeanor case. As much as the prosecutors like to file felonies, they're not going to be able to do that unless they can show some real serious conduct on the accused's part.
How Can I Get a Fair Chance If Charged with Assault on Police Officer?
If you have been charged with assaulting a police officer in LA County, you're entitled to your own investigation. You can hire a defense lawyer like myself. I can get my investigator involved, and we can gather our own evidence.
Moreover, the defense is entitled to look at all the evidence that the police gather. Prosecutors have to make it available. They have to 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 they're claiming that there's some incriminating evidence on there, but you say that there's evidence on there that exonerates you, we can get access to look at the phone. We can get access to look at everything. We can get access to download the phone.
Additionally, when they take witness statements, they have to turn over those witness statements. The defense is permitted to talk to those witnesses with their investigator and get information.
So, even though the police usually control the evidence, that doesn't mean that the defense does not get to look at the evidence. It also doesn't mean that the defense can't do their own 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, worked for a judge who was a criminal defense attorney in 1994, we're not going to get cheated as it relates to the evidence.
I'm going to get all the evidence. I'm going to review it all. It can all be planted towards the defense as far as I'm concerned. We're going to have an honest discussion about 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 that 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 are going to 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 attack them verbally with cross-examination and make sure that 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 effectively cross-examine them. A lot of times, they'll testify at a hearing before the trial, which is called a preliminary hearing under penalty of perjury.
There will be a transcript of it, and if they start to lie, we can use that transcript to impeach. 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 any of your testimony if you're going to lie like that?”
Consequently, they're subject to being impeached and cross-examined just like any other person. Skilled attorneys know exactly how to deal with the police when they're trying to manipulate the evidence or not tell the truth.
Hedding Law Firm is a criminal defense law firm located in the San Fernando Valley area of Los Angeles County at 16000 Ventura Blvd #1208 Encino, CA 91436. Contact us for a free case evaluation at (213) 542-0979.