For assaults on police, the NEAR Act neither requires jury-demandable prosecution nor expands the right to claim self-defense.

Coleman v. United States (decided October 11, 2018)

Players: Associate Judges Glickman and Fisher and Senior Judge Washington. Opinion by Judge Washington. Fletcher P. Thompson for Appellant. Trial Judge: Kimberly S. Knowles.

Facts: MPD officers arrested appellant for assault on a police officer (“APO”) following an encounter outside of his vehicle. At trial, the government presented evidence that when the officers approached, appellant became agitated, ignored requests to move out of the street, and flung his arms wildly, hitting two officers. Appellant continued to resist, ripping a third officer’s uniform when police took him to the ground.

The government elected to prosecute appellant for misdemeanor simple assault, a non-jury-demandable offense, rather than APO, which would have been jury-demandable under the Neighborhood Engagement Achieves Results (“NEAR”) Act. Appellant nevertheless argued that he was entitled to a jury trial. Appellant further argued that because the government had declined to prosecute APO, he should not be bound by the limits on self-defense that apply when the complainant is a police officer. The trial court rejected both arguments and found appellant guilty of simple assault.

Issue 1: Whether the NEAR Act requires the government to charge jury-demandable APO when the complainant in an assault is a police officer?

Holding 1: No. The NEAR Act created separate APO and resisting arrest offenses in response to widespread concern that APO was too broadly defined. Although the Act also increased the penalty for misdemeanor APO and resisting arrest to make both offenses jury-demandable, there is no evidence that the Council intended to remove the government’s ability to prosecute simple assault where the complainant is a police officer. Simple assault remains a lesser and included offense of APO.

Issue 2: Whether the NEAR Act expands the right to claim self-defense in simple assault cases where the complainant is a police officer?

Holding 2: No. The rule whereby one may not use force against a police officer in self-defense unless the officer has used excessive force exists to protect officers in the line of duty. Although the NEAR Act limits what may constitute APO, there is no evidence that the Council intended to overrule the restriction on self-defense claims. Broadening the right to use force against officers would endanger them and impede their work. WC.

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Chief Judge Washington expresses concern about government's decision to prosecute APO cases that arise from Mobile Crisis contacts with mentally ill individuals

Foster v. United States (decided April 21, 2016).

Players: Chief Judge Washington, Judge Fisher, and Senior Judge Steadman. Opinion by Chief Judge Washington. Concurring opinion also by Chief Judge Washington. Anna B. Scanlon for Mr. Foster. Trial judge: Yvonne Williams.  

Facts: Mr. Foster has schizophrenia, and a Mobile Crisis psychiatric team responded to his home after his mother called the Department of Health for help. At least two police officers accompanied the Mobile Crisis team to assist and “keep the peace.” When Mr. Foster refused to go with the crisis team for evaluation, the officers attempted to handcuff him—though he was not under arrest—“and a scuffle ensued,” during which the police sprayed him with pepper spray. Mr. Foster “shouldered” past one officer and left the house before dropping to his knees when the pepper spray took effect. He ultimately ended up face down on the ground as officers tried to handcuff him, lying on his hands, kicking his legs, and trying to breathe. He was convicted of APO for “pushing” or “shouldering” past the officer as he left the house and resisting arrest when police tried to handcuff him.   

Issue: Was the evidence sufficient to support the conviction for APO?           

Holding: Yes. Because the officers were in full uniform and explained their presence to Mr. Foster when they attempted to handcuff him, there was sufficient evidence that he knew they were police officers. And because he used his shoulder to move past one officer and actively resisted handcuffing by lying on his hands and kicking his legs, there was sufficient evidence of “the ‘active and oppositional’ conduct necessary for APO.”                 

Of Note: Chief Judge Washington wrote a separate concurrence to “express [his] concern” about the decision to prosecute APO charges in cases like this. He explained that he is “troubled that the presence of the police during these mental health visits can result in an individual being charged with a criminal offense because we have criminalized active oppositional resistance to the authority of the police.” If police officers are going to accompany the Mobile Crisis team, he “hope[d] that those individuals who have the discretion to decide whether to criminally prosecute individuals who fail to comply with lawful orders will think twice before inflicting what could be considered a greater harm, in the form of a criminal charge and conviction, on a very vulnerable population.”  MW

Read full opinion here.