View Full Version : If someone walked up and spit on you?
So as a police officer. What would you do if someone walked up and didn't say a word to. But spit on you? What can legally be done?
}Dragon{
04-05-2007, 06:57 PM
Originally posted by Noid
So as a police officer. What would you do if someone walked up and didn't say a word to. But spit on you? What can legally be done?
That's a battery on an Officer... go directly to jail, do not pass go, do not collect $200 :|
Originally posted by }Dragon{
That's a battery on an Officer... go directly to jail, do not pass go, do not collect $200 :|
Why is it battery? Please explain.
m0moma
04-05-2007, 07:49 PM
Originally posted by Noid
Why is it battery? Please explain.
any willful and unlawful use of force to another person but there does not have to be any injury or pain.. umm a completed assault?
Red6Rdr
04-05-2007, 08:11 PM
* A battery is any physical contact with another person, to which that other person has not consented.
* An assault is basically an attempt at a battery. (A verbal threat can be assault)
I am just playing devils advocate here. Not trying to be argumentative.
But I think spitting is not going to be considered physical contact.
tran_man
04-05-2007, 08:40 PM
Sounds willful, sounds unlawful, sounds like a use of force upon the person of another. Battery completed. Look up 242 PC and 243 PC.
Originally posted by tran_man
Sounds willful, sounds unlawful, sounds like a use of force upon the person of another. Battery completed. Look up 242 PC and 243 PC.
Defenatly willful, unlawful is why the question is being asked. Force? Explain the force part of it. I don't see any force here.
Let me tell you why I am asking this question. I have been told by three different police officers that there isn't anything you can do. Unless the person spitting on you carries a disease that can be tranfered to you by spitting. Other than that. There is no intent to physicaly harm someone by spitting. Don't take this wrong. It is very disgusting and I would beat the #$%# out of someone if they did it to me. I am just trying to get clarification from any leo's on the board before I go and spit on MM. (j.k. MM)
Mangoat
04-05-2007, 08:56 PM
I remember years ago a elementary student was arrested for assault with a deadly weapon.
Weapon used: rubber band and a piece of paper used as the projectile.
Originally posted by Noid
Defenatly willful, unlawful is why the question is being asked. Force? Explain the force part of it. I don't see any force here.
Let me tell you why I am asking this question. I have been told by three different police officers that there isn't anything you can do. Unless the person spitting on you carries a disease that can be tranfered to you by spitting. Other than that. There is no intent to physicaly harm someone by spitting. Don't take this wrong. It is very disgusting and I would beat the #$%# out of someone if they did it to me. I am just trying to get clarification from any leo's on the board before I go and spit on MM. (j.k. MM)
Then those three different officers need to go back for some training. Spit on me, go to jail. Maybe even a free sample of some hot pepper sauce and a tour of the local ER depending on how cooperative they are.
Harm is not an element of the crime. Any unwanted touching is unlawful. Spraying a garden hose at an officer will also get you a ride.
Originally posted by }Dragon{
That's a battery on an Officer... go directly to jail, do not pass go, detour to the local ER to wash pepperspray / remove taser barbs, do not collect $200 :|
FIXED! :p
silverbelt
04-05-2007, 09:46 PM
Originally posted by Noid
....But I think spitting is not going to be considered physical contact.
OK. Here's an idea. Next time you get pulled over or see a cop at a *$, walk up and spit on him or her.
You be sure to let us know if there was "physical contact" :laughing
You like jail? If even for one night? There are so many places I would rather spend the night then at jail :|
}Dragon{
04-05-2007, 10:07 PM
Originally posted by JPM
FIXED! :p
and ER to check the mysterious "waffle-like" rash on the suspects face... :laughing
}Dragon{
04-05-2007, 10:12 PM
Originally posted by Red6Rdr
* An assault is basically an attempt at a battery. (A verbal threat can be assault)
How can a verbal threat be an 'assault'? Contempt of cop yes...
(Put on your turnouts- the barcalounger comments will be starting shortly... :p)
Please remember that I am not saying it is or is not a crime. I am just looking for a answer. Everyone that has stated it is a crime (JPM) has not givin any examples of charges or examples.
So as a LEO what would you charge a person for if this were to happen to you?
Originally posted by }Dragon{
How can a verbal threat be an 'assault'? Contempt of cop yes...
(Put on your turnouts- the barcalounger comments will be starting shortly... :p)
As a ex sherriff you should know that a verbal threat can be a assault.:p
}Dragon{
04-05-2007, 10:56 PM
Originally posted by Noid
As a ex sherriff you should know that a verbal threat can be a assault.:p
Threats are quite different than a "verbal assault".
Saying something that provokes a violent reaction falls under 415 PC
Threats would fall under various sections (69 and 146 PC come to mind).
Stormdragon
04-05-2007, 11:06 PM
What the courts decide, and what the officer charges you with are two different things. Piss the LEO off enough, and you could get charged with attempted manslaughter. Could. Note: could. It's up to you to fight that 'could' in court.
As a private citizen? Getting spit on gets you nothing without a LEO as a witness. Brush it off and go on about your business.
}Dragon{
04-05-2007, 11:08 PM
Originally posted by Stormdragon
As a private citizen? Getting spit on gets you nothing without a LEO as a witness. Brush it off and go on about your business.
You could make a private persons arrest;)
silverbelt
04-05-2007, 11:24 PM
Originally posted by Stormdragon
As a private citizen? Getting spit on gets you nothing without a LEO as a witness. Brush it off and go on about your business.
No way. People get their asses kicked for less than that. :hand
So, police people,
Challenge to a fight is a 415, right? What is " I will kick your ass?" How about "if I see you on the road, I'm gonna kick your ass?" How about "he's gonna get his head kicked in?"
My point being, when does a 415 escalate to a 422 (terrorist threat)? I ask because I have a wacko neighbor who has made these statements.
SLOW10R
04-06-2007, 02:33 AM
Originally posted by enki
So, police people,
Challenge to a fight is a 415, right? What is " I will kick your ass?" How about "if I see you on the road, I'm gonna kick your ass?" How about "he's gonna get his head kicked in?"
My point being, when does a 415 escalate to a 422 (terrorist threat)? I ask because I have a wacko neighbor who has made these statements.
A terroristic threat is not necessarily a direct assault to a persons being, it is more of a physical action that could result in injury. A terroristic threat can also be a criminal act that causes a public inconvienence or dispacement(IE lighting a building on fire that has people inside would be a terroristic activity or threat) An assault however would be a threat of direct physical harm to a person while having the means or ability to carry it out. IE saying you are going to whack someone on the head with the baseball bat in your hand would be an attempted assault resulting in a battery if the action was carried out, but saying you are going to pick up a car and hit someone on the head with it would not be (unless of course you had the means to pick the car up...forklift, crane etc)
motorman4life
04-06-2007, 11:39 AM
Originally posted by cantstopdriftin
A terroristic threat is not necessarily a direct assault to a persons being, it is more of a physical action that could result in injury. A terroristic threat can also be a criminal act that causes a public inconvienence or dispacement(IE lighting a building on fire that has people inside would be a terroristic activity or threat) An assault however would be a threat of direct physical harm to a person while having the means or ability to carry it out. IE saying you are going to whack someone on the head with the baseball bat in your hand would be an attempted assault resulting in a battery if the action was carried out, but saying you are going to pick up a car and hit someone on the head with it would not be (unless of course you had the means to pick the car up...forklift, crane etc)
While "terroristic" is a word, it is not the word used for 422 PC anymore. A few years back, it was changed from "terrorist threats" to "criminal threats." The change was made because juries had a hard time wrapping their minds around terrorism and could not find it in their being to convict angry grandmas of "terrorist threats" even though all of the elements were clearly met. One of the key elements in criminal threats is that the intended victim be placed in fear for their safety. You can look up 422 PC and see the elements.
While you are at it, look up 420 and 422 PC, then 245 PC and lastly, to get a bit of perspective on battery with bodily fluids, read 243.9 PC for a definition of "gassing" (which may not be what you think it is). It applies in a custodial setting (prison or jail), but the definition of gassing there makes it clear that bodily fluids are a weapon when used in that manner. It stands to reason that they are no less a weapon outside the pokey. ;)
As for the initial question, spitting on someone is clearly a battery. It is like any other battery in that IF it is witnessed, it is more likely to be successfully prosecuted. A peace officer DOES NOT need to be a witness for there to be a lawful citizen's arrest and subsequent prosecution. I also agree with JPM, if 3 officers told you it was not a battery, they need retraining or the information was conveyed in such a manner that they felt there was not clear evidence of intent.. or it occurred in SF :teeth
Anyhow, if I were Joe Citizen and someone spit on me in an assaultive manner and I reasonably felt I continued to be threatened by them, I would likely take them to the ground and place them under citizen's arrest. I would have the police summoned and advise them I had affected a citizen's arrest for battery. I would then get a series of AIDS and Hepatitis tests completed and sue the other person in civil court for the associated costs of those tests, missed work, travel expenses and punitive damages for distress. If they were dirt poor, I'd probably hope for the best, get a free AIDS test at the clinic and move on.
We have covered use of force and definitions of assault and battery here before. Refer to [Responding to Fake-out Punches] (http://www.bayarearidersforum.com/forums/showthread.php?s=&threadid=191864&highlight=assault)
To recap briefly, 240 PC is an assault. That is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. Typing in an internet forum that you will spit on someone is not an assault. Making that threat and attempting to carry it out when you are face to face and have the present ability to carry out that threat, IS and assault.
A battery requires any willful and unlawful use of force or violence upon the person of another.... actual contact. Shoving someone in a violent manner or throwing urine on someone or spitting upon someone or spraying someone with a garden hose are all examples of battery. As this is a "specific intent" crime, intent is a major factor as to whether a crime is committed. I could push you playfully or spray a garden hose on you accidentally or jokingly. If I am doing it out of anger and/or in an attempt to escalate an altercation or garner a violent or angry response, then it is clearly a battery. This may be the lynchpin in whether the officers felt the described act was a battery. You would need to express the nature of the incident to get one required element and without all of the elements, the officers likely responded that it would not be a battery. If that makes any sense.
motorman4life
04-06-2007, 11:50 AM
Originally posted by enki
So, police people,
Challenge to a fight is a 415, right? What is " I will kick your ass?" How about "if I see you on the road, I'm gonna kick your ass?" How about "he's gonna get his head kicked in?"
My point being, when does a 415 escalate to a 422 (terrorist threat)? I ask because I have a wacko neighbor who has made these statements.
For clarification and contrary to what others have written on the topic here, while a 422 violation may include or be coroborated by threatening act, it can be accomplished verbally and without any accompanying act toward the furtherance of the act or acts threatened. The biggest issue in a 422 is that the threat is intended to be taken seriously and the victim is or would reasonably be in fear of their (or family) safety as a result.
422 PC - Criminal Threats.
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.
For the purposes of this section, "immediate family" means any
spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.
"Electronic communication device" includes, but is not limited to,
telephones, cellular telephones, computers, video recorders, fax
machines, or pagers. "Electronic communication" has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.
And 415 PC is challenging to fight, fighting, creating a disturbance and offensive speech and gestures intending to provoke a fight or violent reaction.
415 PC - Disturbing the Peace
Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine:
(1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight.
(2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise.
(3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.
As to which would be more applicable in your case.. review the elements and you be the judge. It sounds to me like some of the comments fall under each. I would seek charges for 422 PC and if there has not been a previous such charge, in all likelyhod, the court would offer a plea to 415 PC and assign a suspended sentence and court probation. This would 1) let them know you are serious, 2) give you a handle on them and 3) hopefully curb the behavior.
It may also result in them being ordered by the court to attend counseling or anger management classes, which may also help your situation.
YMMV. Best of luck.
NVR FNSH
04-06-2007, 11:54 AM
Originally posted by motorman4life
To recap briefly, 240 PC is an assault. That is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. Typing in an internet forum that you will spit on someone is not an assault. Making that threat when you are face to face and have the present ability to carry out that threat, IS and assault.[/B]
MM4L,
Without the spitting actually occuring (and missing) the attempt has not occurred. I'm not seeing how the elements have been met. Your thoughts?
Brian
motorman4life
04-06-2007, 12:09 PM
Originally posted by NVR FNSH
MM4L,
Without the spitting actually occuring (and missing) the attempt has not occurred. I'm not seeing how the elements have been met. Your thoughts?
Brian
Missing? Spitting? Not spitting? Did I miss something? Maybe I nodded off. You tell me what happened and I could try to give you a proper charge.
Again, look at the elements for the applicable codes and if it does not meet the elements, then it does not fit the crime. The OP said someone came up and spat upon them, unprovoked, just spit. Is this a battery. Yes. It is no different than someone coming up and punching you in the face or throwing urine on your chest. It is a battery. There was no harsh words or threats involved in the OP's situation, just spit... for argument's sake, let's say it is spit in the face and that it was clear to all involved and any bystanders that it was unintentional... then you have no crime.
If they tried to to spit out an open window and you happened to walk by and catch it in the face, you have no crime.
Now, you are presenting a different situation.. no spitting actually occurring. So, what did occur?
Originally posted by Noid
Please remember that I am not saying it is or is not a crime. I am just looking for a answer. Everyone that has stated it is a crime (JPM) has not givin any examples of charges or examples.
So as a LEO what would you charge a person for if this were to happen to you?
I assumed you read the post above mine that gave you the Penal Code violations for Battery. See sections 242 PC, 243(b) PC, and for those that think telling an officer that they are going to "Kick you ass" or "I will kill you" take a look at 69 PC.
http://www.bayarearidersforum.com/forums/showthread.php?s=&threadid=165689
NVR FNSH
04-06-2007, 04:51 PM
Originally posted by motorman4life
Missing? Spitting? Not spitting? Did I miss something? Maybe I nodded off. You tell me what happened and I could try to give you a proper charge.
Again, look at the elements for the applicable codes and if it does not meet the elements, then it does not fit the crime. The OP said someone came up and spat upon them, unprovoked, just spit. Is this a battery. Yes. It is no different than someone coming up and punching you in the face or throwing urine on your chest. It is a battery. There was no harsh words or threats involved in the OP's situation, just spit... for argument's sake, let's say it is spit in the face and that it was clear to all involved and any bystanders that it was unintentional... then you have no crime.
If they tried to to spit out an open window and you happened to walk by and catch it in the face, you have no crime.
Now, you are presenting a different situation.. no spitting actually occurring. So, what did occur?
MM4L,
I was referring to your post not the original post:
Originally posted by motorman4life
To recap briefly, 240 PC is an assault. That is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. Typing in an internet forum that you will spit on someone is not an assault. Making that threat when you are face to face and have the present ability to carry out that threat, IS and assault.[/B]
Your scenario is to make the threat to spit, have the ability to spit (unless you just ate a bunch of saltines) but I assumed did not spit - thus no actual attempt.
Brian
motorman4life
04-06-2007, 05:25 PM
Got it.
To clear up any confusion, replace "spit" with "shove" or "punch" or "hit" in whatever situation.
If I shove, punch, hit or spit on you without legal justification and it is done with clear intent of malice, it is a battery.
If I threaten to do same and do anything in the furtherance of that threat , it is an assualt.
If I am challenging to fight and/or disturbing the peace or exhibiting speech or gestures that are likely to ellicit a violent response, particularly if those gestures or speech are directed at an individual that has not also provoked this, it is a 415 PC
If I am making credible threats to cause GBI to you or your family; threats that on their face would put a reasonable person in fear that they will be carried out... that is 422 PC.
NVR FNSH
04-06-2007, 06:06 PM
Originally posted by motorman4life
If I threaten to do same, it is an assualt.
The problem I'm having is that 240 says "attempt" not "threaten"
Originally posted by motorman4life
If I attempt to do same, it could be charged as an attempted battery under 664 PC (664/242 PC).
How is an attempted battery not an assualt by definition?
Is it Alameda County that has the good discussion/case law sections on their website? I can't remember the site/link.
Brian
motorman4life
04-06-2007, 09:39 PM
Brian, you are right. 100% correct. Good catch.
Thanks for pointing it out. I'll go through and edit accordingly.
RolnCode3
04-07-2007, 12:51 AM
http://www.acgov.org/da/pov/index.htm
Originally posted by NVR FNSH
The problem I'm having is that 240 says "attempt" not "threaten"
How is an attempted battery not an assualt by definition?
Is it Alameda County that has the good discussion/case law sections on their website? I can't remember the site/link.
Brian
motorman4life
04-07-2007, 04:45 PM
Q: does 69 pc apply to police officers? or only to judges, prosecutors and what not?
A: It applies to officers of the executive branch, those under the President and Governors, generallyunder their control and under the oversight of the Department of Justice, both Federal and State. So, it is police officers, deputies, FBI and other LE agents as well as auditors, tax collectors, assessors, governenment clerks, city and county treasurers and prosecutors (DA's and City Atty).
Judges are in the Judicial branch while Senators and Assy Persons in the Legislative branch. Each of those branches have specific laws pertaining to threats or violence toward them, is it relates to their official capacity.
=================
69 PC - Resist Executive Officer (Wobbler M/F)
Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of forcec or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.
AndyM
04-07-2007, 06:22 PM
Spitting on a Cop? Probably no worse than giving one the bird...:laughing
http://www.youtube.com/watch?v=6FnY6OKN3RI
Yeah, yeah, repost... still funny though.
serazin
04-08-2007, 10:46 AM
Originally posted by }Dragon{
You could make a private persons arrest;)
And without a witness, the other party could engage in private person resistance.
Harry Callahan
04-09-2007, 12:58 AM
Originally posted by Noid
I am just playing devils advocate here. Not trying to be argumentative.
But I think spitting is not going to be considered physical contact.
Devils advocate huh? You persistance in questioning about spitting on a cop leads me to wonder.. do you want to spit on a police officer?
Crime or not.. How would you feel if someone spit on you? You would want to kick their ass right? Maybe not, you would proably ask what it feels like to have your ass kicked then play "devils advocate."
Spitters are treated like every other violator (spitter). They are granted the respect they deserve and wrapped tightly in a spit sock (oversized panty hose with a collar). Spit socks are more kinder gentler these days.....
Originally posted by Harry Callahan
Devils advocate huh? You persistance in questioning about spitting on a cop leads me to wonder.. do you want to spit on a police officer?
Crime or not.. How would you feel if someone spit on you? You would want to kick their ass right? Maybe not, you would proably ask what it feels like to have your ass kicked then play "devils advocate."
Spitters are treated like every other violator (spitter). They are granted the respect they deserve and wrapped tightly in a spit sock (oversized panty hose with a collar). Spit socks are more kinder gentler these days.....
Wow.. what can I say except you need to reread and comprehend everything I said. If you do this then you will answer your own questions.
Harry Callahan
04-09-2007, 08:00 AM
Originally posted by Noid
Wow.. what can I say except you need to reread and comprehend everything I said. If you do this then you will answer your own questions.
No Jim, I think I answered your question!
Originally posted by Harry Callahan
No Jim, I think I answered your question!
:hand
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