WPIC 35.21 Assault—Third Degree—Court Process or Arrest—Elements

Use WPIC 35.50 (Assault—Definition) with this instruction.

Use bracketed material as applicable. For directions on the various ways to use the bracketed phrases relating to how the crime is committed, see WPIC 4.20 (Introduction) and the Note on Use and Comment to WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form).

For a discussion of the phrase “this act” in the jurisdictional element, see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.36.031(1)(a).

RCW 9A.36.031(1)(a) makes it a crime to assault any individual who is in the process of lawfully detaining, apprehending or executing lawful process, regardless of whether the person assaulted is a private citizen or a law enforcement officer. This subsection (1)(a) overlaps somewhat with subsection (1)(g), which addresses assaults on law enforcement officers engaged in official duties. Despite this overlap, subsection (1)(a) is not a special statute with regard to subsection (1)(g), and prosecutions may still be pursued under subsection (1)(g). State v. Mierz, 127 Wn.2d 460, 478, 901 P.2d 286 (1995) (citing State v. Belleman, 70 Wn.App. 778, 784, 856 P.2d 403 (1993)) (also discussing the broader scope of activities in which officers may be engaged under subsection (g)). See also State v. Crider, 72 Wn.App. 815, 866 P.2d 75 (1994) (assault while resisting lawful detention and assault on law enforcement officer not concurrent offenses).

Under this subsection (1)(a), the State has the burden of establishing that the arrest was, in fact, lawful. State v. Belleman, 70 Wn.App. 778, 856 P.2d 403 (1993). In contrast, as is discussed in greater detail in the Comment to WPIC 35.23.02 (Assault—Third Degree—Law Enforcement Officer—Elements), RCW 9A.36.031(1)(g) applies whenever a law enforcement officer is performing his official duties, “even if making an illegal arrest.” State v. Mierz, 127 Wn.2d at 479.

The court will need to craft an instruction defining the elements of a lawful arrest or detention based on the particular factual situation. For example, the court in State v. Jones, 63 Wn.App. 703, 708–09, 821 P.2d 543 (1992), upheld an instruction to the jury that “[d]etention or apprehension by store personnel of a person is lawful if the store personnel have reasonable grounds to believe the person so detained was committing or attempting to commit theft or shoplifting on the store premises of store merchandise.” State v. Jones, 63 Wn.App. at 705. See also State v. Johnston, 85 Wn.App. 549, 933 P.2d 448 (1997) (approving, without quoting, an instruction defining lawful detention by a security guard apparently based on RCW 4.24.220 and RCW 9A.16.080); RCW 9A.16.120 (creating a defense for employees of outdoor music festivals in detaining persons for suspected unlawful use of alcohol or illegal drugs on the premises). In State v. Miller, 103 Wn.2d 792, 698 P.2d 554 (1985), the Washington Supreme Court rejected the argument that use of the term “lawful” in the prior version of this statute rendered it void for vagueness. For further discussion of instructions addressing the lawfulness of an arrest, see the Comment to WPIC 120.06 (Resisting Arrest—Elements).

The State is not required to establish that the defendant subjectively knew that the arrest was lawful. State v. Goree, 36 Wn.App. 205, 673 P.2d 194 (1983).

For the instruction on self-defense involving detention by police or correctional officers, see WPIC 17.02.01 (Lawful Force—Resisting Detention). For an instruction on self-defense involving detention by persons other than these officers, see WPIC 17.03 (Lawful Force—Detention of Person).