Battery on a Peace / Police Officer

Police officers, firefighters and other similar categories of public servants hold critical positions in society that are essential to allowing the rest of us to live relatively safe and comfortable lives. While their importance cannot be overstated, neither can the fact that their jobs are, by their nature, particularly hazardous.

California law recognizes the increased level of danger they face on a day-to-day basis, and provide them with some additional protections as compared with members of the general public. One of these increased protections comes in section 243 of the Penal Code; the section that proscribes the crime of battery. In particular, sections 243(b) and 243(c) provide for increased penalties when a battery is committed against a police officer, firefighter or other, similar job classification. These increased penalties include (1) increased fines, (2) increased jail time and (3) elevation from a misdemeanor to a felony. The level of increased penalties a defendant will face is determined by the vocation of the victim, as well as whether an injury resulted from the battery.

What Constitutes Battery:

In order to know what constitutes a violation of Penal Code sections 2343(b) and 243(c), it is essential to know what constitutes the crime of battery. Typically when were hear the term battery (the crime, not the energy storage device) we hear it in combination with the term assault (i.e., assault and battery.) In fact, they are two separate and distinct crimes, although they do tend to both be committed at the same time in many circumstances.

In simplest terms, assault is the threat of an imminent touching or hitting that can cause a violent injury, such that a person is caused to feel apprehension about that imminent hitting or touching. In other words, an imminent attack that the victim sees coming.

Battery, on the other hand, is defined as an actual touching or hitting that is either offensive or harmful; whether or not the victim sees it coming. While assault and battery, in many circumstances, can and will be committed in rapid succession; it is entirely possible to commit an assault without committing a battery, and to commit a battery without committing an assault.

The specific, legal definition of battery that is defined in Penal Code section 242 is a use of either violence or force on another person that is both unlawful and willful. In more practical terms, and particularly because the term "force" can be very broadly defined; a battery is any unlawful touching of a person, however slight, that is either harmful (e.g., a punch in the face) or offensive (e.g., touching a stranger's private areas, regardless of however slight the amount of force used.

What Jobs Are Protected by Penal Code Section 243(b) and (c):

While there are a number of categories of jobs that receive extra protection from Penal Code section 243, in the form of increased penalties for commission of a battery on anyone in that category; the law does not provide extra protection to all categories of civil servants. Rather, only certain, specifically identified categories of jobs receive the protection. Police officer (i.e., peace officers,) of course, are included. While most of these categories are populated by government employees, there are a number of job categories that are normally filled by employees of private companies. In addition to police officers, the other categories of jobs are as follows:

  • Custodial Officers (g., prison guards);
  • Emergency Medical Technicians (a.k.a. EMTs or paramedics);
  • Firefighters;
  • Security Officer/Guard;
  • Lifeguard;
  • Process Server;
  • Custody Assistant;
  • Code Enforcement Officer;
  • Search and Rescue;
  • Animal Control Officer;
  • Probation Department Employee;
  • Physician providing emergency medical care; and
  • Nurse providing emergency medical care.

Penal Code section 243 is drafted with very broad language, so as to apply in a wide variety of situations; not just when an employee is on the job and in uniform. The law applies to protected employees whether they are on or off duty, so long as they are performing the duties of their job. For example, if a police officer is off duty and out of uniform, they see a crime being committed, and they act to arrest a suspect; if that suspect commits a battery on the off-duty officer, the enhanced penalties of section 243, subsections (b) or (c) will apply. However, the perpetrator must have knowledge that the victim is in a law enforcement position.

There are, however, some limited conditions that must exist before a person can be subjected to the enhanced penalties. First, the person must be acting willfully. In the case of a doctor providing emergency medical care, for example, if the person they are treating is in distress and lashes out, striking the doctor; they will not be charged with a battery because the act was not willful. The other significant condition placed on the application of enhanced penalties for battery is that the perpetrator must either know that the person upon which they commit a battery is part of a protected class of employee, or under the circumstances they should know. For example, if an off-duty and out-of-uniform police officer attempts to arrest a suspect of a crime, and the officer does not identify themselves as a law enforcement officer no enhanced penalties will apply if the suspect commits a battery on the officer.

Examples of Battery on a Police Officer (or other covered Job Category):

  • Roger is a petty thief who makes his living by snatching purses and shoplifting. He has been getting away with it for several years, but his luck was bound to run out. One day it does. While attempting to shoplift from a drug store, he is caught by a loss prevention officer and turned over to two police officers who arrive at the scene. While one of the officers is attempting to handcuff him, Roger breaks the officer's grip and in doing so, hits the officer in the face; breaking his nose. The other officer pulls out her Taser and shoots Roger with it. He is then arrested and jailed. In addition to the theft changes he is facing, Roger is also charged with battery upon a police officer in violation of Penal Code section 243(c)(2). Because the battery resulted in an injury to the officer, the prosecutor decides to charge Roger with a felony for the offense. He receives 2 years in county jail and is fined $10,000.00.

  • One day while Gary is at the beach, he sees a female lifeguard in one of the towers that he thinks is especially attractive. He decides to pull a little scam he saw one time in a movie. He goes out into the water and pretends that he is in distress. The lifeguard sees this, and immediately springs into action. She pulls Gary out of the water, and checks to see if he is breathing. Once she comes close enough to his face, Gary grabs the lifeguard with one hand, pulls her toward him, and kisses her on the lips. Not amused, the lifeguard calls over a police officer who was patrolling the beach, and reports what Gary did to her. He is then arrested and charged with misdemeanor battery under Penal Code section 243(b), and is sentenced to 1 year in county jail. Penal Code section 243(b) applies because the position of lifeguard is within the protected class.

  • Melody has a bit of an attitude problem. She is self-entitled and inconsiderate, and one day her husband decided that he has had enough. He goes to see a lawyer to initiate divorce proceedings. He doesn't tell Melody he is going to do it, he just does it. Later in the week, while Melody's husband is at work, a process server comes to the house to serve her with divorce papers. When the process server is attempting to serve her, Melody asks what the papers are for. Feeling a little bit of sympathy for Melody the server tells her they are divorce papers. Melody is instantly enraged, slaps the papers out of the process server's hand and storms off, going into the house and locking the door. What little sympathy the process server felt for Melody is now gone, and he reports Melody's behavior at a nearby police station. The next day, officers arrive at Melody's door and ask her whether she slapped the divorce papers out of the process server's hand. She admits that she did, but doesn't seem to think it is a big deal. The officers take her statement and leave. Melody is later charged with battery under Penal Code section 243(b), and is sentenced to 3 years summary probation and a $2,000.00 fine.   The section applies when someone unwantingly touches some object that is attached to body of another, in this case, the papers being in the hands of the process server.

  • Mark is currently incarcerated in county jail. He is having a hard time coping with being locked up, and is verbally abusive toward the guards and other inmates. One day, Mark takes an apple from the lunch room with him back to his cell so he could have a snack later on. Before he could eat it, guards arrive and tell him they are doing a search of his cell. Knowing that they will certainly find the apple and confiscate it; Mark pulls out the apple. He is frustrated that he won't get to have his snack. Rather than hand it to a guard, he takes a bite of it, then throws it as hard as he can, hitting the guard in the face. The guard gets a black eye from getting hit with the apple. Mark is then charged with a violation of Penal Code section 243(c)(1). He is convicted and is sentenced to an additional 16 months in county jail and fined $2,000.00.

  • Rachel is an avid dog lover and has several dogs that live with her in her suburban house. She also, from time to time, will take home strays and try to either find them a home, or if she thinks that they are runaways, find their owners and return them. Rachel hates that her local animal shelter is what is known as a "kill shelter;" meaning that after holding animals for a certain amount of time, they will kill the animals if nobody adopts them. Her dislike for the practice also extends to the animal control officers that she sometimes sees in her neighborhood. Rachel thinks, if it were not for the dog catchers catching dogs and taking them to the shelter, the shelter would not be able to kill any dogs. One day Rachel sees that an animal control officer has parked outside her house. The officer is standing beside his vehicle, talking on the phone. Rachel goes outside, shouts some expletives at the officer and tells him to go away. The officer just ignores Rachel, so she grabs her garden hose and tries to spray the officer. Out of the corner of his eye, the officer sees the spray from the hose coming, so he mostly dodges it, but Rachel managed to spray his phone, with a little bit of water splashing onto the officer's hand. The phone was not terribly high-end and so was not waterproof. Moments later, the phone went haywire and was ruined. Incensed, the officer called the police, and told them that Rachel attacked him with a hose. Officers arrived and took a report. When the animal control officer followed up with the district attorney, he learned that they were declining to prosecute Rachel for battery. Even though some water splashed onto the officer's hand, the only thing Rachel really hit with the spray was the phone. Because battery can only apply to a person, not property; she was not prosecuted.  In this case, however, Rachel was guilty of assault, because she put the animal control officer in fear of a battery (being sprayed), and had the ability to carry out the threat.

How Does a Prosecutor Prove Battery on a Peace / Police Officer:

To prove a defendant is guilty of battery under Penal Code section 243(b), the prosecution must prove the following facts or elements beyond a reasonable doubt:

  1. The defendant unlawfully and willfully touched someone in a manner that was either harmful or was offensive; and
  2. The victim is a peace officer or other protected person engaged in the performance of their duties; and
  3. When the defendant committed the battery he or she either knew or should reasonably have known that the victim was a police officer or other protected person, engaged in performing their duties.

For a violation of Penal Code section 243(c)(1), in addition to the above elements, the prosecution must prove that the battery committed by the defendant resulted in injury to the victim. Violations of Penal Code section 243(c)(2) do not require any additional elements to be proven, but will only apply in cases where the victim is a police officer; not any of the other protected job categories.

Penalties:

The penalties for a simple misdemeanor battery in violation of Penal Code section 243(a) (i.e., one not committed against a protected class of employee) consists of the following:

(1) Up to 3 years of summary probation; and/or

(2) As much as 6 months in county jail; and/or

(3) A fine up to $2,000.

A violation of Penal Code section 243(b), which is a misdemeanor battery against an employee in a protected class, not resulting in any injury; can carry the following penalties:

(1) Up to 3 years of summary probation; and/or

(2) As much as 1 year in county jail; and/or

(3) A fine up to $2,000.

A violation of Penal Code section 243(c)(1), which is battery against an employee in a protected class, which does result in an injury; is a wobbler (meaning it can be charged as either a misdemeanor or a felony) and can carry the following penalties:

For a misdemeanor charge:

(1) Up to 3 years of summary probation; and/or

(2) As much as 1 year in county jail; and/or

(3) A fine up to $2,000.

For a felony charge:

(1) Up to 5 years of formal probation; and/or

(2) 16 months, 2 years or 3 years in county jail or state prison.

A violation of Penal Code section 243(c)(2), which is battery against a peace (police) officer, resulting in injury is also a wobbler, and can carry the following penalties:

For a misdemeanor charge:

(1) Up to 3 years of summary probation; and/or

(2) As much as 1 year in county jail; and/or

(3) A fine up to $10,000.

For a felony charge:

(1) Up to 5 years of formal probation; and/or

(2) 16 months, 2 years or 3 years in county jail or state prison; and/or

(3) A fine up to $10,000.

As you can see, the penalties for a battery committed against an employee in a protected class are not too different from a simple battery charge, provided that no injury was inflicted. In fact, the only difference is that the defendant could face up to 1 year in county jail rather than 6 months. The penalties become much more severe when an injury results from the battery, as those offenses can be charged as felonies, in the discretion of the prosecutor.

The severity of the injury will doubtlessly be a factor in the decision whether to charge as a misdemeanor or a felony, but there is no requirement that the injury be serious in order to charge the crime as a felony. A small cut or a bruise is sufficient to elevate the offense to a felony charge. Especially in these types of cases, it is a very good idea to retain an experienced criminal attorney to represent you. Doing so will likely give you the best possible chance of avoiding the most severe penalties.

Defenses:

Self-defense or Defense of Others - If the defendant reasonably believed that they or another individual was likely to suffer physical harm from an application of force from a peace/police officer (or other person who falls within the definitions of this law) and the initial force was proportional to the threat, then there is a defense against prosecution.  However, a police officer may use reasonable force in the performance of his duties.  It is only when the officer applies unreasonable force that the perpetrator may respond with reasonable force.

Lack of Intent - A defendant who did not willfully intend to commit the assault can use the lack of intent as a defense against prosecution. If the victim misinterpreted the actions of the defendant or if the act was accidental or unintentional then this is a viable defense.

The officer was not in performance of his duties - An officer is not considered in the performance of their duties if they are acting outside of the law, including wrongful arrests and detentions, wrongful searches and seizures and racial profiling. If the defendant committed the battery to prevent any of these they have a valid defense.

Actual Case:

Jorge R. was feeling despondent about his loss of work and because he was experiencing some rocky times in his marriage.  One day Jorge was at his home with his adult son and Jorge’s wife.  Jorge had been drinking and was talking about taking his own life.  Jorge’s son called the police and the police entered the house for a welfare check.  When he saw the police, Jorge picked up a kitchen knife and raised it over his head in a threatening gesture at the police.  The police were able to disarm Jorge and he was charged with assault on a police officer.  I was able to steer Jorge into getting psychological counseling, to gather supporting documentation for Jorge and to convince the D.A. to reduce the charges to a misdemeanor assault with no jail time involved.  Jorge was placed on probation and when he successfully completed probation I was able to get his charges set aside.

How We can Help:

David Foos has over 40 years’ experience defending people accused of assault and batteries.  David was a Deputy Public Defender for 8 years, and then was appointed to be a Judicial Officer with the Sacramento Superior Court.  David served as a Judicial Officer for 16 years.  Through David’s long experience, he has developed the knowledge and expertise to obtain the best possible results for you on your case.  David will have you into the office for a consultation and discuss all the possible defenses with you.  If appropriate, David will employ his team of investigators to discover all the favorable evidence and witnesses in your case. David will develop the best defense for you and then speak to the District Attorney in an effort to negotiate the best possible outcome for you.  If the District Attorney is not being reasonable, David will push your case to a trial.  David has significant experience in taking a case to trial and obtaining not guilty verdicts. Call our Sacramento criminal lawyer at (916) 779-3500 or email us at This email address is being protected from spambots. You need JavaScript enabled to view it. for a no-cost initial consultation. 


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