ASSAULT AND BATTERY ON A POLICE OFFICER OR PUBLIC EMPLOYEE

This post will answer the following legal questions about assault and battery on a police officer or public employee:

  • What is assault and battery?
  • What must the Commonwealth prove in order to convict a defendant of the offense of intentional assault and battery on a police officer or public employee?
  • Does consent factor into determining if an alleged victim was a victim of assault and battery when bodily harm is in question?
  • What does it mean to intentionally touch someone?
  • Is there another way a defendant can be convicted of assault and battery on a police officer or public employee besides through intentional assault and battery?
  • How does the Commonwealth prove the defendant guilty of having committed an assault and battery upon a police officer or public employee by reckless conduct?
  • Can a defendant be convicted of assault or battery if he or she intended to injure or strike the alleged victim but did not actually touch his or her person? What about if the alleged victim foresaw (i.e. strong prediction or suspicion) there would be harm inflicted?
  • What happens if the alleged victim was injured while escaping?
  • What happens when alternate theories of guilt apply to a case with assault and battery in questions?
  • What other separate assault and battery offenses are there?
  • Is medical testimony admissible evidence in an assault and battery case?
  • Does the Commonwealth need to prove transferred intent in assault and battery cases?
  • Are judges required to provide a statement of reasons in an assault and battery case if imprisonment is not imposed?

What is assault and battery?

An assault and battery is the intentional and unjustified use of force upon the person of another, however slight, or the intentional doing of a wanton or grossly negligent act causing personal injury to another.

Note that under Commonwealth law, “assault”and “battery” are technically different offenses, but that every battery includes an assault as a lesser-included offense. They are legally considered to be closely related subcategories of the same crime.

What must the Commonwealth prove in order to convict a defendant of the offense of intentional assault and battery on a police officer or public employee?

In order to prove a defendant guilty of having committed an intentional assault and battery on a police officer or public employee, the Commonwealth must prove all of the following six elements beyond a reasonable doubt:

  1. That the defendant touched the person of the alleged victim without having any right or excuse to do so

     2.  That the defendant intended to touch the alleged victim

     3.  That the touching was either likely to cause bodily harm to the alleged victim or was done without his or her consent

     4.  That the alleged victim was a police officer or public employee

     5.  That the defendant knew the alleged victim was a police officer or public employee

     6.  That the alleged victim was engaged in the performance of his or her duty at the time of alleged incident

Does consent factor into determining if an alleged victim was a victim of assault and battery when bodily harm is in question?

Any touching likely to cause bodily harm is a battery regardless of consent, but an offensive but non-harmful battery requires lack of consent or inability to consent.

Note also that mutual consent is no defense to cross complaints (i.e. legal paperwork that a defendant files to initiate his or her own lawsuit against the original plaintiff, a codefendant, or someone who is not yet a party to the lawsuit) of assault and battery.

What does it mean to intentionally touch someone?

The second requirement of proving assault and battery indicates that the defendant must have touched the alleged victim intentionally. This means that the defendant consciously and deliberately intended the touching to occur, and that the touching was not merely accidental or negligent. Touching is not considered intentional merely because an intentional act resulted in a touching. 

The Commonwealth is not required to prove that the defendant specifically intended to cause injury to the alleged victim. Rather, assault and battery is legally considered to be a general intent crimes, so therefore it does NOT require specific intent to injure the victim.

Is there another way a defendant can be convicted of assault and battery on a police officer or public employee besides through intentional assault and battery?

YES, there is a second way in which a person may be guilty of an assault and battery on a police officer or public employee. Instead of intentional conduct, it involves reckless conduct that results in bodily injury. The defendant can be charged with the offense of having committed an assault and battery upon a police officer or public employee by reckless conduct.

How does the Commonwealth prove the defendant guilty of having committed an assault and battery upon a police officer or public employee by reckless conduct?

In order to prove that the defendant is guilty of having committed assault and battery upon a police officer or public employee by reckless conduct, the Commonwealth must prove ALL five of the following elements beyond a reasonable doubt (ONE OR MORE):

  1. That the defendant intentionally engaged in actions which caused bodily injury to the alleged victim

     2.  That the defendant’s actions amounted to reckless conduct

     3.  That the alleged victim was a police officer or public employee

     4.  That the defendant knewthe alleged victim was a police officer or public employee

     5.  That the alleged victim was engaged in performance of his or her duty at the time of the alleged incident

To prove the first element, the Commonwealth must prove that the defendant intended the act or acts that resulted in the injury, in the sense that those acts did not happen accidentally.

The Commonwealth must also prove that the injury was sufficiently serious to interfere with the alleged victim’s health or comfort. The injury does not need to be permanent, but it must be more than trifling (i.e. unimportant or trivial). For example, if an alleged victim were shaken up but by his own admission not injured, or if an alleged victim were to have a sore wrist for only a few minutes, the injury in each instance would be considered transient (i.e. “temporary” or “passing”).

To prove the second element, the Commonwealth must prove that the defendant’s actions amounted to reckless conduct. It is not enough for the Commonwealth to prove that the defendant acted negligently—or in a way that a reasonably careful person would not.

It must be shown that the defendant’s actions went beyond mere negligence and amounted to recklessness. The defendant is legally considered to have acted recklessly if he or she knew or should have known that such actions were very likely to cause substantial harm to someone, but he or she ran that risk and went ahead anyway.

The burden is on the Commonwealth to prove that the defendant intended his or her acts that resulted in the touching, in the sense that those acts did not happen accidentally.

Can a defendant be convicted of assault or battery if he or she intended to injure or strike the alleged victim but did not actually touch his or her person? What about if the alleged victim foresaw (i.e. strong prediction or suspicion) there would be harm inflicted?

No, a defendant cannot be convicted of assault or battery if he or she only intended to injure or strike the alleged victim but did not actually touch his or her person. Neither can the defendant be convicted of assault or battery if he or she only had a strong prediction or suspicion that there would be harm inflicted and there was no actual touching.

However, if the defendant actually realized in advance that his or her conduct was very likely to cause substantial harm and decided to run that risk, such conduct would be considered reckless.

Even if he or she was not conscious of the serious danger that was inherent in such conduct, it is still reckless conduct if a reasonable person, under the circumstances as they were known to the defendant, would have recognized that such actions were so dangerous that it was very likely that they would result in substantial injury.

The law does recognize one alternative form of assault and battery in which proof of willful, wanton, and reckless actions, which result in personal injury to another, substitute for intentional conduct. In this alternative scenario the Commonwealth would only have to prove beyond a reasonable doubt both that (ALL):

  1. The act involved a high degree of likelihood that substantial harm would result to another
  2. The victim suffered physical injury as a result of that act

This “high degree of likelihood” is at the same time both a subjective and objective standard and is based in part on the knowledge of facts that would cause a reasonable person to know that a danger or serious harm exists. Such knowledge has its roots in experience, logic, and common sense, as well as in formal legal standards.

Note that a defendant who inadvertently strikes a police officer or public employee while intending to strike someone else may only be convicted or the lesser offense of assault and battery.

Remember also that simply because the offense of assault and battery is either applicable or inapplicable does not mean other legal issues like threatening or acting in self-defense do not factor into consideration with the case in question.

What happens if the alleged victim was injured while escaping?

The defendant may be convicted of assault and battery if the Commonwealth has proved beyond a reasonable doubt that the defendant caused the alleged victim reasonably to fear an immediate attack from the defendant, which then led him or her to try to escape or defend himself or herself from the defendant, and in doing so injured himself or herself.

What happens when alternate theories of guilt apply to a case with assault and battery in questions?

If the evidence indicates a guilty verdict for the offense of assault and battery on more than one theory of culpability, the judge must provide the jury with a verdict slip (i.e. question-and-answer forms, usually in paper format, designed to guide jurors in reaching a verdict after a civil or criminal trial) to indicate the theory or theories on which the jury bases its verdict and, on request, instruct the jurors that they must agree unanimously on the theory of culpability.

Note that when the jury is presented with the lesser-included offense of assault, and the Commonwealth proceeds with prosecuting upon alternate theories of an attempted battery or an imminently threatened battery the jury does not need to be unanimous as to the theory. Also, a special verdict slip requiring the jury to select between theories is not permitted.

What other separate assault and battery offenses are there?

There is a separate offense of assault or assault and battery on a correctional officer.

Note that if the individual assaulted or a victim of assault and battery is a correctional officer, specific intent is required to prove the defendant guilty of assault and battery. For example, a defendant that inadvertently struck a police officer while intending to strike someone else may be convicted only of the lesser-included offense of assault and battery. The offense is included within the final jurisdiction of the District Court.

There is also a separate offense of assault and battery on a person with an intellectual disability.

The first offense against a person with an intellectual disability is within the final jurisdiction of the District Court, although a subsequent offense is not.

Other separate offenses include assault or battery or aggravated assault or battery on (ONE OR MORE):

  • An emergency medical technician (EMT) while treating or transporting a person in the line of duty
  • An ambulance operator while treating or transporting a person in the line of duty
  • An ambulance attendant while treating or transporting a person in the line of duty
  • A child under 14 causing bodily injury
  • A child under 14 causing substantial bodily injury
  • A person 60 years old or older
  • A disabled person

Is medical testimony admissible evidence in an assault and battery case?

In a prosecution for assault and battery, medical testimony about the victim’s injuries is admissible to establish that the defendant’s assault on the victim was intentional and not accidental.

Does the Commonwealth need to prove transferred intent in assault and battery cases?

NO, the Commonwealth needs only to prove intent as to one of the intended alleged victims of an assault and battery case and does not need to prove intent specifically directed at each of the actual victims.

To restate this, it is a legal rule that a person who strikes, intending to hit Person A, but actually hits and injures Person B, is liable for assault and battery on Person B.

Are judges required to provide a statement of reasons in an assault and battery case if imprisonment is not imposed?

YES, a jury session judge who does not impose a sentence or incarceration must include in the record of the case specific reasons for not imposing a sentence of imprisonment. Such reasons must be part of a public record.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH ASSAULT AND BATTERY ON A POLICE OFFICER OR PUBLIC EMPLOYEE, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

Source: Instruction 6.210

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