A couple of days ago, I posted a YouTube of a Toronto police officer arresting a demonstrator for blowing bubbles in his general direction.  “If a bubble touches me,” the officer warns the demonstrator, “you are going to be arrested for assault.”

The video has apparently received a lot of attention on the Internet, and the officer has since been identified as Adam Josephs, an officer who supposedly referred to the Toronto public as “human garbage” on his Facebook page.  Here, courtesy of the Law Is Cool blog, is a little spoof on Josephs’ exchange with the demonstrator.

With thanks to Jonathan Turley of the Res Ipsa Loquitur Blog, here is a video of a Toronto woman apparently being arrested for assaulting a police officer with bubbles. If this had happened in Philadelphia (at least under the old regime), the woman would also have been charged with disorderly conduct, failure to disperse, and breaching the peace.

While the YouTube video is now posted all over the Internet, I first found out about Congressman Etheridge’s altercation with two students when checking out my website stats through Google Analytics.  I found that visits to the Simple Assault page on my website had gone through the roof.  My summary of the offense was also quoted and linked to in comments all over the web.

At the same time, I’m not sure you need to actually read the definition of simple assault to understand the Congressman’s offense.  This is like the famous statement on pornography:  You know when you see it.  As one person commented, the Congressman’s grabbing of the student’s wrist certainly amounted to an “offensive touching.”  Etheridge’s threatening manner and words should also satisfy the “intent to frighten” element.  I don’t know about you, but I found the Congressman to be pretty damn scary.

I was particularly interested in the Congressman’s statement to the student that the Congressman had a right to know who the student was.  And I liked the student’s response:  We are standing on a public street.

Here for the record is a summary of the offense as defined in D.C.

“Assault” is defined generally as the threat or use of force on another person that causes that person to have reasonable apprehension of imminent harmful or offensive contact.  Assault can be a civil wrong (or “tort”).  It can also be a crime.

There are two forms of misdemeanor assault (that is, simple assault) in Washington, D.C. First, there is “attempted battery assault” which occurs when the defendant injures or attempts to injure another person.  The second form, “intent-to-frighten” assault, is defined as a threatening act that puts another person in reasonable fear of immediate injury.

In both cases, the prosecution must also demonstrate that the defendant’s act was voluntary and that the defendant had the actual ability to injure the other person at the time of the incident.  “Injury” is defined as any physical injury, however slight, and includes an “offensive touching.”  The penalty for either form of this type of assault is $1,000 and/or imprisonment of up to 180 days.

A more serious form of assault occurs when:  (1) the assault or threatening acts cause significant bodily injury to the victim and (2) the acts that caused the injury were intentional, knowing, or reckless on the part of the offender.  The penalty for this offense is a maximum fine of $3,000 and/or imprisonment of up to 3 years.

“Significant bodily injury” is an injury that requires hospitalization or immediate medical attention.  “Menacing manner” is defined to include:  (1) an act on the part of the accused (which need not result in injury), (2) the apparent ability to injure the victim at the time the act is committed, and (3) the intent to perform the act which constitutes the assault at the time the act is committed.  D.C. Criminal Code 22-404.

Self-defense is the use of force to protect oneself, one’s family or one’s property from a real or threatened attack.  It is an affirmative defense, meaning that the defendant has the initial burden of raising it. In D.C., once the defendant has been able to introduce sufficient evidence of self-defense, it then becomes the government’s burden to prove beyond a reasonable doubt that the defendant’s actions were NOT carried out in self-defense.

According to the Criminal Jury Instructions for the District of Columbia, there are a number of requirements for the use of self-defense in D.C.  The first requirement is that the amount of force used be “reasonable.”  In the case of “nondeadly force,” “reasonable” is defined as that amount of force that is necessary to protect oneself from imminent bodily harm.  This suggests that an element of proportionality.  A person may also use “deadly force” in order to protect oneself from imminent danger of death or serious bodily harm.

The second requirement is that the danger of bodily harm be “imminent.”  In other words, the threat must be of immediate harm, not harm at some time in the future.  This means that the person feeling threatened is not empowered to remove him- or herself from the situation and then to return to the scene, possibly with a weapon, to continue the altercation.  The person should try to “step back” or “walk away” if possible; once out of harm’s way, the justification for self-defense disappears.  At the same time, D.C. law does not require a person “to retreat or to consider retreating” when faced with the danger of death or serious bodily harm.

The third requirement is the threat of either “bodily harm” or “serious bodily harm.” While the jury instructions do not specify what constitutes “bodily harm,” “bodily injury” has been defined as any physical injury, however slight, to include an “offensive touching.”  “Significant bodily injury” has been defined as an injury that requires hospitalization or immediate medical attention.

The fourth requirement is that the person asserting self-defense actually believed that he or she was in danger. This is what is referred to in the law as a “subjective standard”; it is not what someone else felt or may have felt, but what this particular person felt.  The only requirement in this regard is that the belief was held honestly.

The fifth and final requirement is that the person asserting self-defense had reasonable grounds for that belief.  This is the “objective standard”; that is, it doesn’t depend on the perceptions of this particular person but on how a “reasonable person” in the defendant’s position would perceive the situation.

The Jury Instructions also point out that, in assessing the defendant’s perceptions of the situation, the proper standard is not assess retroactively how the defendant should have perceived the situation but, instead, how the defendant reasonably could and honestly did perceive the situation at the time.   The Instructions also specify that the reasonable and honest standard can apply to a person acting in the heat of passion:  “In the heat of passion, a person may actually and reasonably believe something that seems unreasonable to a calm mind.”

It’s a little blurb on page two of today’s Washington Post sports page, so you know it’s not real news. It begins with a quote by the defendant’s public defender:  “It’s probable he consumed too much alcohol.”  Then the facts:  Some guy vomited on a police officer and the officer’s daughter at a Phillies-National game in Philadelphia.  Finally the news:  The defendant pled guilty to some unidentified offense.

Given the light tone of the blurb, you can assume the writer expects you to find this information interesting or even humorous.  Drinking too much and losing your lunch on a hapless police officer and his daughter.  Gross.  Disgusting.  Ha, ha, ha.

But what is interesting to me about the blurb is not the fact that the guy’s lawyer made an understatement.  It’s not that the police officer’s daughter was only 11 years old.  (Grosser?  More disgusting?)  It’s not that Philly fans drink too much and get rowdy at professional sporting events. We already know that.

What’s interesting to me about the blurb is the photograph that accompanies it.  In what is obviously a mug shot taken after his arrest, the defendant is pictured as a chubby, round-faced guy who looks to be no older than a teenager. And, with his left eye swollen shut, he has obviously been beaten up.

I have no idea who this guy is.  And I certainly wasn’t there at Citizens Bank Park when the whole thing happened.  Checking his name on the Internet, I find that there may have been more to the story than reported by the Post. From what I read, it certainly does not sound as if the guy is blameless. Hey, he may well have deserved what he got.

But I still cannot stop thinking about the guy’s swollen left eye.  How many mugshots have I now seen in which the subject looks out toward the camera with the confused look of a man who has just been beaten up and the cuts and bruises to prove it? How many young men I have encountered in a cramped, overheated interview room at the prison with missing teeth, gaping and oozing wounds, and a story of how they were beaten up – punched and kicked — by a group of overzealous police officers?  How many YouTube videos have we all seen of helpless citizens being victimized by law enforcement personnel?

I am not a bleeding heart, pacifistic, commie-loving liberal. I respect the police. I understand the dangers police officers subject themselves to during the course of duty. They run towards trouble when I want to run away.

But I have tried too many cases in which police misconduct has been twisted around into criminal charges against a client. As we used to say at the Philly PD’s office, the more serious the injuries on the client, the more serious the charges:  aggravated assault on a police officer, aggravated assault by a prisoner, resisting arrest, recklessly endangering another person, mayhem, and so forth.

I have also lost more of those cases than I would like to admit.  And, as always, it’s the ones you lose that stick with you. The problem is, no matter how many videos we see on YouTube, no matter how many times we see evidence to the contrary, we still want to believe in the goodness of all police officers.  So do many judges and juries.

So, yes, I too was grossed out by the thought of this guy’s vomit all over the poor police officer and his 11-year-old daughter.  And again, yes, maybe he deserved the whupping.  But I can’t help thinking about parents all over the ballpark taking their children to see a baseball game only to have them subjected first to the sight of the vomit and then to stand witness to this guy being beaten up.  Maybe next time they should watch the game on T.V.

Your client works downtown.  He and his wife commute together every morning into town on the metro.  The two of them are boarding the train one morning when he feels someone pushing him from behind.  Your client initially ignores it, but the pushing continues.  Finally, your client turns around and sees another man standing behind him, also trying to get onto the train.

According to the police report, your client elbows the man.  The man elbows your client back.  “If you touch me again,” your client supposedly says, “I’ll beat the crap out of you.”

“Oh yeah?” responds the other man.

At this point, the report claims, your client hits the other man in the face with a closed fist, thereby cutting his lip.

Simple assault?

There are two forms of misdemeanor assault – aka simple assault – in Washington, D.C.  First, there is “attempted-battery assault” which occurs when the defendant injures or attempts to injure another person. The second form,  “intent-to-frighten” assault, is defined as a threatening act that puts another person in reasonable fear of immediate injury.  In both cases, the prosecution must also demonstrate that the defendant’s act was voluntary and that the defendant had the actual ability to injure the other person at the time of the incident.  “Injury” is defined as any physical injury, however slight, and includes an “offensive touching.”

So yes, assuming the government will be able to make out its version of the incident at trial, the prosecution will probably meet its burden with respect to the elements of simple assault.  This assumes that the supposed victim shows up for court.  It assumes that he can testify with sufficient credibility and that he doesn’t have a string of arrests of his own for violent behavior.  And it assumes that you do not have a credible witness – either your client or a bystander – to offer a different version of the same incident.

In addition, there is probably not a good self-defense argument.  Yes, the other guy may have started it.  But it is unlikely a court will find that a blow to the face with a closed fist was a proportional response to the initial provocation.

So, if you don’t want to take the case to trial and you don’t want your client to end up with a conviction on his record, what do you do?

One option for a first-offender in D.C. is to seek a deferred sentencing agreement (DSA).   A DSA is an agreement between the prosecutor and the defendant.  According to this agreement, the defendant agrees to plead guilty to the charged offense. The defendant then has a particular time period – usually 6 months to a year – to complete an agreed upon set of requirements. In a simple assault case such as this one, the conditions could include community service, an anger management class, a stay-away order, a fine to the Victim’s Compensation Fund, and/or a written apology.

If the defendant successfully completes the requirements within the time period and does not pick up any new arrests, the defendant is allowed to withdraw the guilty plea and the prosecution dismisses the case. If, however, the defendant fails to complete his end of the bargain, he has waived his right to a trial and the court will enter the guilty plea and sentence him accordingly.

There are a number of obstacles to a DSA.  First of all, as with all diversionary programs, the DSA is entirely discretionary with the prosecution.  You can sometimes get a judge to pressure the prosecution into such an agreement, but for the most part, prosecutors need only do it if they want to.

Second, as in any case in which there is a victim to the alleged offense, the prosecution will normally not consider a DSA unless the victim consents. And this is not going to happen if the victim has a bone to pick with your client.

Finally, the DSA requires the defendant to stand up in open court and acknowledge guilt.   Some clients, feeling falsely accused, don’t want to do this.   Why should I plead guilty to something I didn’t do?  Why should I give up my constitutional right to a trial?

You need to look at the strength of the prosecution’s case and the strength of your own case in order to help your client to arrive at the right decision.  Clearly, you don’t want a client to plead guilty to something he or she didn’t do.  At the same time, again depending on the specifics of the case, your client may not want to risk jail-time, probation and/or a conviction on his record if you take the case to trial and lose.

Your client in this case is a large man but he has a gentle disposition. He has a good sense of humor, and he speaks fondly of his wife and their future together.  He regrets his involvement in the unfortunate incident, and decides he wants to accept the DSA.  He is not happy that he needs to stand up in open court and admit guilt.  But he takes the long view:  He doesn’t want to take the risk of ending up with a conviction on his record.

Your client looks at the sheet of paper you hand him outside the courtroom that lists the organizations for which he can complete the 40 hours of community service.  Yes, he says, I have always wanted to do this type of thing.  Now I finally have the excuse.

You have no doubt that he will complete the program successfully. You have no doubt that in nine months he will walk away from this case without a conviction on his record, the whole incident nothing more than a bad memory.

How many times have you heard someone complain that he or she has been robbed?  A person returns home from vacation and finds a backdoor broken and a computer missing.  Oh my goodness, dear, we’ve been robbed!  A wallet is taken from a gym locker.  Someone robbed my wallet!

Technically, the people have not been robbed.  They’ve been burglarized in the first instance and the victim of theft in the second.

Robbery is an interesting mixture of two other crimes:  theft and assault.  Like theft, it involves the unlawful taking of property of another with intent to deprive.  Like assault, it involves bodily injury or the threat of bodily injury.  Put the two offenses together and you have robbery.

But it is not burglary.  Burglary is the entering of a dwelling or some type of structure with intent to commit a crime.  In Washington, D.C., if the structure is an occupied dwelling (that is, a home in which someone is present at the time), it is a first degree burglary.  Otherwise, it is burglary of the second degree.

It doesn’t matter what the crime is, just as long as the crime is separate from the entry itself.  That is, the crime the person intends to commit could not be burglary or unlawful entry.

All of this means that a husband who returns to his own house planning at the time he enters the home to assault his wife could be convicted of burglary.  It means that a person who breaks into someone else’s house and who, once inside, decides to take some property could be convicted of unlawful entry and theft.  But not burglary.

It is of course impossible for the prosecution to actually prove what the defendant was intending to do at the time he or she entered the dwelling or structure.  The prosecution will thus have to prove intent through circumstantial evidence.  Was the defendant shouting at the time he entered the house that he was angry and was going to harm his wife?  That would be a pretty good indication of criminal intent.  Did the defendant have an empty bag at the time he entered a store?  That might suggest he was planning to fill the bag with store merchandise.

But I’ve digressed.  Back to robbery.  A referee makes a bad call in a football game, giving the other side the win.  We wuz robbed!  Is this in fact robbery? Is the referee guilty of a criminal offense?

Let’s apply the elements to find out.  First of all, something of value needs to be taken.  The “something of value” doesn’t need to be physical property.  A win could be valuable, particularly if a lot of wagers have been made on the outcome of the game.  You might therefore argue that the first element has been satisfied.

Second, the taking needs to be “through force or violence.”  Hmmmm.  Not so good.

Third, the taking needs to be either directly from the person or from the person’s possession.  Again, not so good.

The referee might be guilty of bad judgment.  Or if deliberately trying to fix the game, the referee might be guilty of some other type of criminal offense.  But he is not guilty of robbery.