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Assault on a Public Official


Assault on Public Official

The crime of assault on public official, like several other variations of assault, is a wobbler crime.  This means that it can be charged as either a misdemeanor or a felony depending on how the prosecution decides to file it.  The prosecutor will look to the seriousness of the facts of the case as well the defendant's prior criminal history, if any, in deciding how to file.   If charged as a felony the potential consequences for a charge of assault on a public official under Penal Code secition 217.1(a) can be extremely serious. In order to understand why this is, it's important to look at what constitutes an assault on a public official.  Under California's Penal Code section 217.1(a), in order for someone to be found guilty of committing an assault on a public official, the prosecution must prove the following elements of the crime beyond a reasonable doubt:


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Elements of Assault on a Public Official

  1. The person committed an assault with a deadly weapon or by means of force likely to cause great bodily injury,
  2. The person committed an assault of the person of a government official, former government official, or the immediate family of any of these officials, and
  3. The person acted in retaliation for or to prevent the performance of the victim’s official duties.

Let try to understand this by using an example: Defendant Dan is charged with having committed serious crimes and is in jail awaiting trial.  He has a public defender who is working very hard on his defense and who has tried to negotiate a very good deal for him with the prosecutor.  Defendant Dan is angry because he feels that his public defender is not doing a good enough job on his behalf.  When they next meet in court, Defendant Dan tries to attack his public defender by ramming his handcuffed hands into his attorney. 

In looking at this as it relates to the crime of assault on a public official pursuant to Penal Code 217.1 (a), an assault was committed because Defendant Dan had the present ability to commit a violent act on his attorney, and he unlawfully attempted to do so.  The metal handcuffs were either intended to be a deadly weapon and the public defender qualifies as a public official.  Finally, the attack was in retaliation for what Defendant Dan believed was his attorney’s failure to properly advocate on his behalf.   All of the elements for assault on a public official have been met.  Remember, it was not necessary for Defendant Dan to have actually caused injury to his public defender.  The assault in and of itself was enough to constitute guilt of assault on a public official.

Assault – (for a more detailed discussion see section on Assault)

  1. The person has to have done some act that would probably result in applying force against another person.
  2. The person has to have done this act willfully.
  3. When the person did this act, he or she knew certain facts that a reasonable person would think would probably result in the application of force against another.
  4. The person had the present ability to use force against the other person.

Willfully - As discussed in the section on “assault”, a willful act is one that is done on purpose. What it does not mean, however, is that the person had the intention to break the law or hurt someone else. There is NO requirement of intent to cause injury.

Applying Force Against Another Person - This generally means touching another in a harmful or offensive manner.  It is enough if the touching is done in a rude or angry way even though the touching is very slight. The touching can also be indirect by causing an object or another person to touch someone. And finally, the touching does not have to cause pain or injury of any kind; all that is required is that there was a good chance that the touching could have caused pain or injury.

Public OfficialOur legislature recognizes that the important policies and decisions that our public officials frequently have to make don’t always sit well with everyone. When widely publicized and controversial policies come to light they often creates anger and resentment – sometimes to the point where an official can be in danger of being attacked physically. This is the reason a conviction of assault on a public official can lead to such serious penalties.  If you allegedly assaulted the President or Vice President, the Governor, a federal, state or local justice, judge or juror, a commissioner, referee or other judicial officer, the secretary or director of any executive agency (federal or state), a federal or state elected official, a mayor, city council member, county supervisor, sheriff, peace officer or chief of police, a prosecutor, a public defender, or any of the aforementioned's family members you may face charges of assault against as public official.

Immediate Family - Immediate family" means spouse, child, stepchild, brother, stepbrother, sister, stepsister, mother, stepmother, father, or stepfather.

Why Is Assault On A Public Official Different?

A significant difference between assault on a public official and other forms of assault is that motive must be present for a crime to have been committed under Penal Code section 217.1 (a). The only way to be convicted of this crime is if the assault is committed on the public official in an attempt to hinder the public officials’ ability to carry out their official duties and/or obligations. If, however, the assault on the public offical was not committed to hinder the official or to retaliate against them because of an action they took to further a duty, you cannot be convicted of assault on a public official. That is not to say that you can’t and won’t be convicted of another crime. Should you assault a public official but without the intentions of obstructing the abilities and duties of their public position you can still be convicted of assault with a deadly weapon (ADW) or a simple assault - depending upon the circumstances and specifics of the case.

Penalties for Assault on a Public Official

As mentioned above, the charge of assault on a public official is considered a “wobbler”. When a charge is considered a wobbler it means that assault on a public official can be charged as either a misdemeanor or a felony depending upon the discretion of the prosecution as well as the specific circumstances of the case.

If convicted of a misdemeanor violation of Penal Code section 217.1 (a) assault on a public official you can face summary probation, a maximum of one year in county jail, and/or a maximum fine of $1000.

If convicted of a felony violation of Penal Code section 217.1 (a) assault on a public official you can face felony probation, either 16 months, two years or three years state prison but served in county jail, and/or a maximum fine of $10,000.

Defenses for Assault on a Public Official

When adopting a defense for an assault on a public official the Criminal Defense Law Office of Leah Legal will examine the case in its entirety and evaluate the specific circumstances that are lacking in the prosecutors case.  If all of the elements are not proven, a case can be dismissed or reduced to a less serious charge. There are several common defenses including the lack of ability to inflict harm. Should you attempt to assault a public official in a situation where you possessed no realistic ability to inflict that harm, regardless of your intentions, you are not guilty of a violation of Penal Code section 217.1 (a).

Other defenses may include self defense – wherein your actions were because you reasonably believed that the official was unlawfully acting in a forceful and dangerous manner towards you. Also, as discussed above, another defense is the lack of intent to obstruct the duties of the public official.