ASSAULT & WEAPON OFFENSES

The crimes of assault, assault and battery, and aggravated assault all involve intentional harm inflicted on one person by another. Any crime involving a physical attack (or even the threat of an attack) is usually classified as an assault, a battery, or both. And, depending on the seriousness of the attack (or the dangerousness of the weapon used), these acts can rise to the level of aggravated assault or mayhem. And it isn’t just one-sided attacks that can constitute assault. Fighting can lead to an assault charge, even when two people can be said to have mutually agreed to fight. Read on to learn what defines assault and battery, aggravated assault, and related crimes. (To learn about assault and battery as intentional torts that can form the basis of a civil court lawsuit, check out Nolo’s article Assault and Battery as Personal Injury Claims.)

What Is Assault?

Assault is sometimes defined as any intentional act that causes another person to fear that they’re about to suffer physical harm. This definition recognizes that placing another person in fear of imminent bodily harm is itself an act deserving of punishment, even if the victim of the assault is not actually harmed. The definition also allows police officers to intervene and make an arrest without having to stand idly by waiting for the assaulter to actually strike the victim.

Assault Case Example: Snider is walking down a city street carrying a bottle of soda. Mantle, walking along the same street in the opposite direction, sees Snider approaching. Because of Snider’s reputation as a hot-head, Mantle immediately becomes fearful that Snider will swing the bottle at Mantle when their paths cross. As they walk past each other, nothing happens. Snider has not committed an assault. Snider has a right to carry a bottle of soda in public, and Mantle’s fear of being hit was not the result of Snyder’s intentionally threatening behavior. But now assume that, as they draw closer, Snider draws back his fist and tells Mantle “You’re going to pay for stealing my collection of baseball pennants.” As Snider begins to swing his fist in Mantle’s direction, Mantle sprints away and escapes harm. Here, Snider has committed an assault. His intentional conduct placed Mantle in reasonable fear of immediate bodily harm.

What Is Assault and Battery?

Historically, battery and assault were considered separate crimes, with battery requiring that the aggressor physically strike the victim. Many modern statutes do not bother to distinguish between the two crimes, as evidenced by the fact that the phrase “assault and battery” has become as common as “salt and pepper.” These days, statutes often refer to crimes of actual physical violence as assaults.

Simple Versus Aggravated Assault

The criminal laws of many states classify assaults as either simple or aggravated assaults, according to the gravity of the harm that occurs — or is likely to occur if the assaulter follows through and attacks the victim. Aggravated assault is a felony that may involve an assault committed with a weapon or with the intent to commit a serious crime such as rape. An assault may also be defined as aggravated if it occurs in the course of a relationship that the legal system regards as worthy of special protection (see “Aggravated Assault Case Example 2″ below for more discussion). In the absence of factors such as these, the crime is simple assault, a misdemeanor.

As an alternative to classifying assaults as either simple or aggravated, some states recognize the different levels of harm that assaults can cause by classifying them as first (most serious), second, or third degree (less serious) assaults.

Aggravated Assault Case Example 1: Alyssa is walking alone late at night when a man suddenly jumps in front of her and drags her into the bushes. The man strikes Alyssa a couple of times and begins to rip at her clothes. Fortunately, Alyssa strikes the attacker with a rock and runs away to safety. The attacker is guilty of aggravated assault because the circumstances indicate that he assaulted Alyssa with the intent of raping her.

Aggravated Assault Case Example 2: A male nurse in a nursing home facility fondles an elderly female patient. The nurse may be convicted of aggravated assault in states that have enacted special statutes to protect elderly and/or mentally ill patients against violence perpetrated by caregivers.

WORDS ALONE CANNOT FORM AN ASSAULT

According to an ancient children’s ditty, “Sticks and stones may break my bones but words will never harm me.” It turns out that words alone won’t give rise to assault charges either. The general policy against punishing people for naked threats recognizes that in the heat of the moment people often make threats they have no intention of carrying out.

Assault Statute Example: Mississippi

To get an idea of what a statute on assault looks like, take a look at this excerpt from the Mississippi Code (Section 97-3-7) which defines the crime of simple assault. As you’ll see, simple assault in Mississippi encompasses both acts that cause actual bodily injury and acts that cause fear of imminent serious bodily harm.

(1) A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm; and, upon conviction, he shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both.

Weapons

District of Columbia v. Heller, 54 U.S. 570 (2008), the U.S. Supreme Court weighed in on gun ownership rights, ruling that the U.S. Constitution protects an individual’s right to own a gun for personal use. Yet despite the Court’s clear ruling that people may keep a loaded handgun at home for self-defense, Heller allows for certain restrictions to gun ownership. The ruling leaves many uncertainties as to which types of gun control laws will be allowed to stand and which will be ruled unconstitutional. (You can read the Heller opinion in Nolo’s Supreme Court Center)

What Heller Says

The Heller case involved a challenge to the District of Columbia’s ban on handguns. For the first time in nearly 70 years, the U.S. Supreme Court ruled on the meaning of the Second Amendment to the U.S. Constitution as it relates to gun control laws.

The Second Amendment provides that “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

For many years, scholars and anti-gun proponents have argued that the Second Amendment provides a right to own guns only in connection with service in a militia, and that this right should not extend to private individuals. That argument was roundly rejected by the Supreme Court. In an opinion authored by Justice Antonin Scalia, the Court held that the right to own a gun is not connected with service in a militia; rather, it is a personal right to own a firearm for “traditionally lawful purposes” such as self-defense within the home.

The bottom line: You have a constitutional right to possess a firearm regardless of whether you are serving in a militia. But just how far that right extends remains up in the air.

How Heller Affects Gun Control Laws

How much the ruling in Heller will affect gun control laws in various cities and states remains to be seen.

The gun control law at issue in the Heller case — a nearly across-the-board gun ban in the District of Columbia – was considered to be the strictest gun-control law in the nation. Because the Supreme Court’s ruling concerned only this strict ban on handguns, the decision leaves unclear whether less-stringent bans in other states and cities will survive constitutional challenges.

And, although the Supreme Court’s decision adopted the broader, individual-rights interpretation of the Second Amendment, the Court also made it clear that the right to own a gun continues to have a number of significant qualifications or restrictions, including:

Not everyone can own a gun. The right does not extend to felons or the mentally ill.

Guns cannot be carried everywhere. Laws forbidding individuals from carrying  firearms in “sensitive” places, such as schools and government buildings, will probably stand.

Certain restrictions on the sale of guns are allowed. Laws imposing conditions and qualifications on the commercial sale of firearms will most likely stand.

Individuals do not have the right to carry certain types of guns. The right does not protect guns that are not generally owned for lawful purposes, such as short-barreled shotguns. Just what kind of handguns may be possessed is not explicitly set forth in the opinion (apart from the one specific reference to sawed-off shotguns, which are not allowed).  The Court did endorse the “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’” but did not state whether such weapons include assault weapons or semi-automatic weapons.

Concealed weapons. Laws forbidding people to carry concealed weapons on their person (or in a place close at hand, such as the glove compartment of a car) probably remain valid.

Sentence enhancements. A variety of criminal laws provide for increased punishment of offenders who use weapons when committing a crime.

Heller does not affect the validity of these laws.

Given this long list of qualifications, it remains unclear how Heller will affect the many different types of gun control laws that exist in cities and states throughout the country.

New Challenges to Gun Control Laws

One thing is for sure: Advocates all over the country will now challenge gun control laws based on the Supreme Court’s ruling in Heller. Within a day of the decision, lawsuits challenging gun control laws had been filed in Chicago and San Francisco, and additional challenges are expected in New York, Philadelphia, Detroit, and countless other cities.

While gun rights advocates like the National Rifle Association hailed the Supreme Court’s decision as a welcome addition to their arsenal in the ongoing war against gun control laws, only time (and future court decisions) will tell whether the Court’s ruling marks the beginning of a comprehensive rollback of gun control restrictions in this country or is merely a symbolic ruling that will ultimately leave most of those laws in effect.

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