WPIC 35.23.02 Assault—Third Degree—Law Enforcement Officer—Elements

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

For a discussion of the phrase “any of these acts” 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)(g).

RCW 9A.36.031(1)(g) protects only law enforcement officers and employees of law enforcement agencies. Unlike subsection (a), see WPIC 35.21 (Assault—Third Degree—Court Process or Arrest—Elements), it does not apply to victims who are private citizens. State v. Mierz, 127 Wn.2d 460, 901 P.2d 286 (1995). “Official duties” as used in the subsection “encompasses all aspects of a law enforcement officer's good faith performance of job-related duties, excluding conduct occurring when the officer is on a frolic of his or her own.” It applies to performance of official duties, “even if making an illegal arrest.” State v. Mierz, 127 Wn.2d at 479.

In State v. Graham, 130 Wn.2d 711, 927 P.2d 227 (1996), the Washington Supreme Court, interpreting former RCW 9A.76.020 (obstructing “public servant” performing “official duties”) and 9A.76.040 (resisting arrest), held that off-duty police officers were performing official duties when, in uniform and identifying themselves as police officers, they placed the defendant under arrest for possession of an illegal drug. In the court's view:

State v. Graham, 130 Wn.2d at 722. This interpretation seems likely to affect the interpretation of RCW 9A.36.031(1)(g), particularly since RCW 9A.76.020(2) now uses the term “law enforcement officer” as well.

In State v. Ross, 71 Wn.App. 837, 863 P.2d 102 (1993), the Court of Appeals held that in the case of a lawful arrest by a uniformed officer, when the assault was prosecuted under subsection (g) the applicable self-defense standard was still that of State v. Holeman, 103 Wn.2d 426, 693 P.2d 89 (1985) (force may be used only if the arrestee is actually about to be seriously injured). See WPIC 17.02.01 (Lawful Force—Resisting Detention). The court had therefore properly refused defendant's offered mistaken belief instruction, based on WPIC 17.04 (Lawful Force—Actual Danger Not Necessary). The court found no policy reason to distinguish a case prosecuted under subsection (a), in which the Holeman rule is well established, from one prosecuted under subsection (g). “Order and safe law enforcement demands that an arrestee not resist a lawful arrest and a bystander not intervene on his behalf unless the arrestee is actually about to be injured or killed.” State v. Ross, 71 Wn.App. at 842. See also State v. Valentine, 132 Wn.2d 1, 935 P.2d 1294 (1997). In Valentine, the court found that the jury was correctly instructed that “The use of force to prevent an unlawful arrest which threatens only a loss of freedom, if you so find, is not reasonable.” State v. Valentine, 132 Wn.2d at 6.

In Mierz, the State contended that there was no right of self-defense under RCW 9A.36.031(1)(g). State v. Mierz, 127 Wn.2d. at 478, n.12. The court “assume[d], without deciding,” that the Legislature did not intend to “drastically limit the right of self-defense in RCW 9A.16.020(3), given Washington's strong policy on self-defense and the use of the term ‘assault’ in subsection (g). Traditionally, self-defense is available in an assault situation.” State v. Mierz, 127 Wn.2d. at 478, n.12. For additional discussion of the right of self-defense in prosecutions under 9A.36.031(1)(a) and (g), see the Comments to WPIC 17.02.01 (Lawful Force—Resisting Detention) and WPIC 17.03 (Lawful Force—Detention of Person).

The courts in State v. Brown, 140 Wn.2d 456, 998 P.2d 321 (2000) and State v. Hall, 104 Wn.App. 56, 14 P.3d 884 (2000) overruled precedent holding that the State, in a prosecution under RCW 9A.36.031(1)(g), must prove that the defendant knew that the person assaulted was a law enforcement officer. Brown specifically held that knowledge that the person assaulted is a police officer is not an element of RCW 9A.36.031(1)(g). State v. Brown, 140 Wn.2d at 470.