The law often makes special provisions to protect specific categories of people. The groups of people with these special provisions include the elderly, children, and certain groups who perform specific public jobs. Assault is always considered a crime, but when committed against a public official, it falls under Penal Code 217 which goes a step further by creating a separate offense than simple assault.

The California legislature recognizes the danger public officials place themselves in. Making necessary policy decisions is part of their jobs, and often times these decisions are not popular. Citizens of the general public have made targets out of public officials when they do not agree with their policy-making tactics and accordingly assaulting one of them has severe consequences if convicted.

If you’ve been charged with assaulting a public official, you will need the services of a good criminal defense attorney to defend your rights and record. If you are convicted of these charges, you face a permanent criminal record, professional effects, and long-lasting personal issues along with heavy penalties. As with all other charges when taken before a criminal court, you are innocent until proven guilty. It is critical you obtain the help of an attorney immediately after charged to have charges dismissed or possibly reduced.

What Defines an Assault on a Public Official?

An assault against a public official in California falls under Penal Code 217. Under this code, you can only be charged with an assault against a public official if the action was taken in retaliation or to prevent the official from carrying out their duties. 

Assault is defined as your attempt to carry out an action that will result in violent injury and is different from a battery which involves the use of actual force. To be charged with an assault, the prosecution must prove your actions contained one of these elements:

  • You had a willful intent to see the action carried out
  • You had the ability to use force at the time of the act
  • The act you intended to perform would have resulted in the use of force
  • The person you were threatening had reason to believe your actions would result in the use of force

When the charge is against a public official, it must be proven you were aware of who they are and what their public position involves. Public officials would include:

  • Prosecutors
  • President or Vice President of the U.S.
  • Any federal, state, or local judge whether currently residing or retired
  • Any federal, state, or local juror
  • Any federal, state or local government elected official
  • Any council member serving for a municipality, mayor, county supervisor, police or peace officer, sheriff, or city chief of police
  • Prosecutors whether current or retired
  • Public defender whether current or retired
  • A director or secretary of any executive agency whether state or federal
  • Governor of any United States territory or state
  • A referee, commissioner or other judicial officers
  • The immediate family members of any of these designated ‘public officials’ including their grandchildren, children, siblings, step-children, step-parents, spouses or parents

The Difference Between Simple Assault and Assault Against a Public Official

Due to the special provision in place in California, simple assault is charged as a misdemeanor, whereas an assault against a public official can lead to a felony conviction. California law considers an act of assault against a public official to include these actions:

  • You committed an act of assault
  • The act of assault was committed against a ‘public official’, or a member of their immediate family
  • Your actions were in retaliation or were performed to prevent the official from performing their public duties

You do not actually have had to cause an injury to the official to be guilty of assault against a public official; merely the attempt to commit this injury qualifies for a charge of assault. These are examples where you might find yourself facing assault on a public official:

You have lived in a neighborhood for some time and strongly disagree with some changes being introduced by a new city council member. When you attend a meeting regarding the changes with a can of pepper spray intending to spay the council member if they don’t change the proposal, you can be charged with assault on a public official even though you were stopped from completing the spray.

You are facing charges for selling drugs and are frustrated with the legal representation you’re receiving from the public defender. One day your legal counsel comes to the county jail for a conference with you, and in frustration, you throw a chair at him and then proceed to punch him in the face. You may face additional charges under Penal Code 217 for assaulting a public official as your council is a public defender. (These actions could also result in separate charges of Battery)

The most important point regarding the assault of a public official is that your actions must be in retaliation of a public action performed by the official or an attempt to prevent the official from conducting a public duty. If the act of assault has nothing to do with their official duties, then you are not guilty of assaulting a public official. You may; however, be charged with simple assault. An example of this situation would be:

You are out one night and get involved in a fight with another customer at the bar. In your anger, you attempt to throw a bottle at the other party but are stopped by other patrons in the establishment. It turns out the other person is a judge within your local municipality, but since your attempt to throw the bottle had nothing to do with his position, you cannot be charged with assault against a public official.

Understanding California Law and Assault Charges against Public Officials

California law does not take the use of force whether actually committed or just threatened lightly. There are several Penal Codes under the law which protect the citizens of this state:

Penal Code 217 protects those in public office. Assault on a public official covers the person themselves or their immediate family. The act was an illegal attempt to carry out violent injury while the official was performing their public service, or in retaliation to an act, they performed as a public official.

Penal Code 241 protects peace officers such as firefighters, police officers, emergency technicians, lifeguards, traffic officers, parking control officers, animal control officers, and other officers working to protect the public.

When someone assaults law enforcement officials, public officials also known as ‘peace officers,’ they will face charges under California Penal Code 241c and like Penal Code 217 face stricter penalties than simple assault charges under Penal Code 240. The sentencing of jail times and fines will be much higher under these two codes.

Having an attorney represent you when facing these charges is in your best interest. It is common for police officers to take things one has said or done personally. They do not like their authority threatened or disrespected and can falsely charge you with wrongful prosecution. Your best chance for building a defense against these charges is to contact a criminal defense attorney as soon as you are charged.

Other penal codes that relate to assault charges in California are:

Penal Code 240 protects the general public when an unlawful attempt, together with the ability to commit violent injury is carried out on them by another person.  

Penal Code 245 defines is an ‘aggravated assault’ which is applied if, in addition to the attempted assault, the act is committed with a gun, another form of firearm, or other deadly weapons.

Penal Code 245a1 defines ‘assault with a deadly weapon’ and occurs when a person uses force which could result in significant bodily injury.

Penal code 148a1 defines the act of using violence or threatening violence while resisting arrest.

What Are the Penalties for Assault Against a Public Official?

Under California law, Penal Code 217 is a ‘wobbler.’

Definition of a Wobbler- Under California law an offense considered a wobbler means it is at the discretion of the prosecution to charge the crime as a misdemeanor or a felony. They decide how to charge you according to a variety of factors which can include; the specifics of your case and your past criminal history and records.

If your actions were severe, they might likely charge you with a felony as well as if you have past criminal activity on your record. You need the experience of a criminal defense attorney to help you argue a case if the prosecutor attempts to file your suit as a felony. They can help you show your actions were not severe enough to warrant you being charged with a felony. By getting your charges filed as a misdemeanor, your criminal liability can be reduced.

If you are charged with a misdemeanor for assaulting a public official, your penalties can include being sentenced to the county jail for possibly one year and up to $1,000 in fines. If your charges become a conviction as a felony, you are facing felony probation and could spend sixteen months to three years in the county jail. A felony conviction also has a fine attached of up to $10,000.

Felony probation, also known as Federal probation can last from three to five years. If sentenced with this penalty, you will have to report to a probation officer regularly. Part of your sentencing could include you pay the victim restitution along with your jail time.

If you violate your probation conditions, the judge can revoke the probation and send you to prison or jail for the maximum term.

The California Realignment Program also comes into effect with a conviction of assault against a public official.

California voters passed Assembly Bill 109 in 2011. This bill is known as the Realignment Program and was created to divert those convicted of certain classes of lesser felonies from going to prison or jail. If you are convicted of one of 500 felonies in California which are considered non-serious, non-sex-related, or non-violent under this Bill you will receive a sentence to the county jail instead of a state prison.

Those currently serving a prison sentence at the time the bill passed will be supervised by a county probation officer instead of a state parole agent.

Is Assault against a Public Official Different from a Battery Charge?

California law under Penal Code 243 defines battery of a public official. A battery is committed if you engage with a public official while they are performing their duty and touch them deliberately and illegally. If the public official reasonably believes you are making physical contact with them in an offensive and harmful gesture, you can be charged with battery on a peace officer (a public official). Assault charges result from the attempt to inflict physical contact, while a battery is a result of actually making physical contact.

To be charged under Penal Code 243, it must be proven you knew the person was a public official. If you know someone, or you have been accused of battery against a public official, you need to contact a criminal defense attorney. Often these forms of actions are misunderstood. An experienced attorney can argue that you were acting in self-defense, were not acting willfully, or the official was not engaged in official duties.

What is My Legal Defense for Assault Against a Public Official?

Being charged with assault against a public official does not mean you will be convicted of the charge. You need a criminal defense attorney working with you as soon as you are charged to allow them the time necessary to help you get the charges reduced or dismissed.

The prosecution has to prove you had ‘present ability’ to inflict an injury. When you find yourself involved in a confrontation with a public official, you may use wild gestures and harsh words. You may even be angry enough to attempt to injure them to make your feelings heard and understood. But if during this confrontation you did not have the ‘present ability’ to cause an injury, you cannot be charged with assault of any form. If your alleged victim was stronger, larger, or younger than you, a good defense attorney can look into getting your charges reduced to a lesser offense such as those under Penal Code 415, disturbing the peace.

Another defense your attorney can argue is that you were not retaliating, and you were not preventing the official from performing their duties. If the prosecutor cannot prove you were retaliating against an action the official applied, and you are not witnessed attempting to interfere with their public responsibilities, you can only be charged with a simple assault. A simple assault will carry less severe penalties.

Your attorney may also help you prove your actions were a result of self-defense. Public officials often believe other public officials are above breaking the law and can do no wrong. The truth is, defendants are often charged with assault against a public official when they were only trying to defend themselves. It does happen during interactions with the public; officials can become angry, frustrated, and aggressive just as anyone else can. If you had reason to believe an official meant to harm you, and you felt your safety was in danger, you have the right to defend yourself. Your attorney can argue your case and show you were responding to an unlawful touch with reasonable force by using self-defense as your legal defense.

When facing charges of assaulting a ‘peace officer’ or public official identified as a law enforcement official, the prosecution will have to prove you knew or should reasonably have known the victim was a peace officer, or someone with authority performing their designated duties. Proof that they were public officials performing their duties would be:

  • The victim was wearing distinctive clothing or a uniform that is associated with their position, or they provided written identification verifying their status
  • They were driving an ‘official’ vehicle such as an ambulance, fire engine, police car, or another vehicle which identified their position
  • If they attempted to handcuff you, it is a good indication of them being a law enforcement official
  • If the victim was performing an official duty such as an emergency medical procedure, attempting to put a fire out, putting a parking ticket on a vehicle, or other activities associated with their title

If it were unclear who the victim was due to absent of these indicators, the prosecution would not be able to charge under Penal Code 241. Assault charges could still be in place, and you will have to talk to your attorney regarding the circumstances of the event. It is possible these charges could be dismissed or reduced if the situation turns out to be a misunderstanding.

Find a Criminal Defense Attorney Near Me

If you’ve been charged with assaulting a public official, you need a strong criminal defense. Call Long Beach Criminal Attorney at (562) 308-7807 to ensure the courts hear your arguments. Having an experienced attorney working with you from the time charges are filed could help you get them dismissed or reduced.