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Posted: 8/3/2001 11:41:05 AM EDT
charged with Assault with a Deadly Weapon in a case where he clearly had no cause to draw and point his firearm? I got this thought from following a link earlier to a questionable search at a dance party. Let's say some 120 lb guy is walking by himself (i.e. no "accomplices") along the sidewalk at the beach in his Speedo's (i.e.--Absoloutely no possibility of a concealed weapon in a banana hammock). He throws the wrapper from his Popsicle on the ground. The police officer behind him (6'4" 230 lbs of muscle--i.e. no real possibility of the little guy overpowering him) draws his firearm, points it at the little guy, orders him face down on the ground. Ok, so the little guy has committed a crime--maybe a $50-200 fine as a violation of a litter policy. Did the police officer commit Assault With a Deadly Weapon when he drew and pointed it at the little guy for no valid cause? Can he be charged with that? Would he be charged with that in most or any jurisdictions? Now, let's change the scenario. The 230 lb Big, hairy biker throws empty beer bottles on the little guy's lawn. The little guy calls 911, but the police tell him that they cannot respond to that trivial of a complaint, just come down and file a police report. The little guy goes out armed with a pistol and tells the biker to please leave. Guess what happens to the little guy?? AFARR
Link Posted: 8/3/2001 11:43:34 AM EDT
No he can not. Assault is when you actually strike(fire) at someone. This cop was guilty of terroristic threatening.
Link Posted: 8/3/2001 11:55:02 AM EDT
Phrigid, Actually, I believe "Assault" is the physical threat of violence and "Battery" the the actual performance of that violence. AFARR
Link Posted: 8/3/2001 12:04:28 PM EDT
Originally Posted By AFARR: Phrigid, Actually, I believe "Assault" is the physical threat of violence/force and "Battery" the the actual performance of that violence. AFARR
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Living in FL., I would agree. This will vary State to State.
Link Posted: 8/3/2001 12:06:43 PM EDT
Is this a real occurrence or a pretend occurrence? If real can you post a link?
Link Posted: 8/3/2001 2:36:37 PM EDT
Sorry, to the best of my knowledge, it is only occuring in my head. Just wondering exactly where the LEO's have discretion as to the use of their firearms. I have taken a CCW class to get my VA license and any CCW holder that did that would be prosecuted for ADW. AFARR
Link Posted: 8/3/2001 3:08:17 PM EDT
Assault and Battery vary from state to state. The threat of violence or placing a person in a situation which could result in bodily harm is usually Assault. However, if the person shot and missed that would be Aggravated Assault, shot and hit, Battery 1st. Terroristic Threatening, Harassment, and different levels of Assault and/or Battery twist and turn and intertwine like noodles in a bowl. That's what we have PA's for. But to answer the question, yes an LEO can be charged criminally for his actions. But you're going to have to look at the totality of the circumstances. Would a reasonable person in the same situation do the same thing? In order to point a weapon at a person you had better be able to articulate why.
Link Posted: 8/3/2001 3:19:38 PM EDT
Had a conversation with a NYC cop who spent 25 years on the force. In all the years he was in he did not come across a situation that he had to draw a weapon or another cop had to draw and shoot. He said they usually drew and shot when they were pissed off. In a few situations officers shot without knowing why. They just saw other officers fire and had no idea what they were firing at. In any case LEO's do not have absolute immunity and may be charged as if they were any other individual.
Link Posted: 8/3/2001 3:30:15 PM EDT
My understanding: in FL. that is aggravated assault...three years minimum, you do all the time. This is from Jon Gutmacher's book"Florida Firearms" At best, the biker guy is commiting criminal mischief. You are only allowed to pull your gun to stop a "forcible felony" BP
Link Posted: 8/3/2001 6:05:09 PM EDT
Police officers do have more authority to point guns at people than the general public, but this varies from state to state. Would that officer be charge with a crime? Probably not, as nobody suffered any injury. He would, however, be subject to internal sanction, and could very well lose his job. Police officers are given more leeway in pointing guns at people because we have to deal with situations that ordinary folks are expected to walk away from, and it's sometimes better to be safe than sorry. In the scenario AFARR mentioned the officer definitely shouldn't have drawn his gun, given only the facts listed, but I seriously doubt he would be charged with a crime. Days off or termination, but not criminal charges. And believe it or not, you can hide a .22 derringer or some .22 or .25 autos in a Speedo. People have hidden such things up their rectum, under large breasts, etc, so you can NEVER make the assumption that there is no way a person can be armed until you've searched (and no, body cavity searches are not standard, for those of you who will follow the above too far).
Link Posted: 8/3/2001 6:47:52 PM EDT
Police Officers routinely point weapons at people in most jurisdictions. It is an unfortunate fact. In the old days, it was almost a cliche that an officer could retire without ever drawing his weapon. In the old days, there also used to be a couple hundred officers feloniously killed each year, even though that the crime rates were much lower and the population was significantly less. Better training is one of the reasons the number or officers killed has gone down to around 70 per year. Would an officer be justified in pointing a weapon at the Speedo wearing litterbug you mentioned? Probably not. Could he be criminally charged? Probably. Would he? Probably not, but he would most likely be administratively disciplined, and possibly terminated. WOuld the homeowner you mentioned be charged. Maybe in New York or the PRK. I don't think so where I live. The laws in Texas governing this would be in the Penal Code. § 9.04. Threats as Justifiable Force The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force. § 22.05. Deadly Conduct (a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury...... (c) Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded.
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