OUJI-CR 4-16

ASSAULT OR BATTERY UPON POLICE OR OTHER
PEACE OFFICER - ELEMENTS

No person may be convicted of assault/battery/(assault and battery) upon a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(State peace officer) unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, (an assault)/(a battery)/(an assault and battery);

Second, upon a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(State peace officer);

Third, known by the defendant(s) to be a (police officer)/ sheriff/(deputy sheriff)/(highway patrolman)/ (corrections personnel)/(State peace officer);

Fourth, without justifiable or excusable cause;

Fifth, committed while the (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(State peace officer) was in the performance of his/her duties as a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(State peace officer).

OR

First, a willful attempt to (reach for)/(gain control);

Second, of the firearm;

Third, of any (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(a peace officer employed by a state/federal governmental agency to enforce state laws);

Fourth, known by the defendant(s) to be a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(peace officer);

Fifth, without justifiable or excusable cause;

Sixth, committed while the (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(peace officer) was in the performance of his/her duties as a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(peace officer).

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Statutory Authority: 21 O.S. 2011,§ 648, 21 O.S. 2015, § 649.

Notes on Use

The court should use the definitions of assault and/or battery in OUJI-CR 4-2 and 4-3 with the first alternative for this instruction, but they should not be used for the second alternative. For a statutory definition of police officer, see 21 O.S. 2011, § 648. For a statutory definition of corrections personnel, see 21 O.S. 2015, § 649(C).

Committee Comments

Section 649 of Title 21 singles out a particular type of simple assault or battery for enhanced punishment: wrongful attack upon a police officer or other officer in the performance of his/her duties. Such an attack is wrongful unless it occurs during the course of reasonable resistance by the defendant to an unlawful arrest. Sandersfield v. State, 1977 OK CR 242, 568 P.2d 313; Cantrell v. State, 1977 OK CR 100, 561 P.2d 973; Morrison v. State, 1974 OK CR 223, 529 P.2d 518; Davis v. State, 1932 OK CR, 53 Okl. Cr. 411, 12 P.2d 555. Section 648 defines which officers are protected by section 649.

The court's construction of the phrase "while in the performance of his duties" may be perceived by contrasting two cases. In Stewart v. State, 1974 OK CR 173, 527 P.2d 22, the complainant was an off-duty Norman police officer employed as a security guard at an apartment complex. At the time the altercation occurred, the officer was at his place of private employment, without a gun or a uniform. The court reversed the defendant's conviction under section 649, and held:

We believe that when an off-duty police officer accepts private employment and is receiving compensation from his private employer he changes hats from a police officer to a private citizen when engaged in this employment and he is therefore representing his private employer's interest and not the public's interest....

We therefore hold that as a matter of law when an off-duty police officer accepts private employment ... he becomes a private citizen. Therefore, to make a valid arrest he must comply with the law applicable to a citizen's arrest.

Id. at ¶ ¶ 7, 8, 527 P.2d at 24.

This holding was distinguished by the court in Brooks v. State, 1977 OK CR 96, 561 P.2d 137. The complaining officer in Brooks was not in uniform and was off-duty at the time he attempted to investigate rowdy conduct on the part of the defendants, and he became involved in a fracas with the defendants. In holding Stewart inapplicable because the officer in that case was performing his own private, rather than public, functions the court held:

[A]ny time a police officer, whether in uniform or not, takes it upon himself to enforce the law in order to maintain peace and order for the general benefit of the public, he is acting in the performance of his duties as a police officer

Officer Christian, although off duty, was not acting under the employ of a private enterprise but was acting for the benefit of the public in general with the aim of maintaining peace and order.

Id. at 140.

Section 650 of Title 21 denominates as a felony any unlawful aggravated assault and battery perpetrated upon a police officer or other officer in the performance of duties. The Commission has incorporated only the aggravated assault and battery element of infliction of great bodily injury in the instruction, since officers on active duty are unlikely to be aged or decrepit. See 21 O.S. 2011, § 646.

The third element of the first alternative and the fourth element of the second alternative in this instruction are included because 21 O.S. 2011, § 649 requires the assault and battery upon the peace officer to have been committed knowingly.

(2016 Supp.)