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Resisting Arrest – Knowing Your Rights

Resisting arrest is one thing, assaulting an officer in the process is yet another.  Assaulting a police dog?  That will certainly make the headlines.  When police were called to the scene of a disturbance and found a San Jose man vandalizing cars and brandishing a weapon, they employed the skills of their German Shepherd.  However, they didn’t expect the man to bite the dog.

An unusual case of resisting arrest.

In Santa Clara County, California near San Jose, Sheriff’s deputies responded to a call and found Frank Garcia, 34, armed with what appeared to be a knife.  He had slashed a tire on one vehicle and smashed in several car windows.  Officers attempted to talk him down so they could take him in, but he stabbed himself three times.

As his self-inflicted injuries were not life threatening, the deputies made the decision to release their K-9, “Ski” in an attempt to subdue the man.  However, Garcia allegedly, punched, choked and bit the dog until the deputies were able to tackle him to the ground.  Ski was not seriously injured, and is expected to make a full recovery and return to duty soon. Garcia was arrested on a number of charges, including resisting arrest, being under the influence of a controlled substance, and injuring a police dog.

Some of the incident was caught on video by a nearby cell phone user, and of course the video has gone viral.  Garcia’s cousin, Maxine Gonzales says that she was very thankful the deputies did not have the need to shoot at him.  That is obviously one good thing that came out of the deputies’ decision to use the K-9.  However, the penalties for resisting arrest can still be pretty steep.  In California, resisting arrest is a misdemeanor and carries with it a sentence of up to one (1) year and/or a maximum fine of one thousand dollar ($1,000) fine.  The same offense in Massachusetts could lead to a longer period of confinement.

Resisting Arrest Charges in Massachusetts

Although the charge of resisting arrest in Massachusetts is only a misdemeanor, it still carries with it a pretty significant penalty.  Massachusetts General Law Chapter 268 section 32B states as follows:

[w]hoever violates this section shall be punished by imprisonment in a jail or house of correction for not more than two and one-half years or a fine of not more than five hundred dollars, or both.

The elements of a resisting arrest charge are (1) that you prevented or attempted to prevent a police officer from making an arrest; (2) the officer was acting under color of his official authority at the time of the arrest; (3) proof that you actually resisted; and (4) you knowingly committed these acts.  Resisting usually means that you used, or threatened to use, physical force or violence against an officer or someone else.  It can also include using some other means to create a substantial risk of causing bodily injury to the officer or another person.  It must also be shown that the police officer was either in uniform at the time he attempted to arrest you, or if not, he identified himself by showing his badge or other credentials.

Defenses to resisting arrest may apply to your situation.

In Massachusetts, there are defenses applicable for resisting arrest charges, such as when you are resisting a pat frisk, fleeing a police officer who orders you to stop for the purposes of a threshold inquiry only, or not knowing the person you were resisting was a police officer.  You also have the right to use reasonable force to resist an arrest if the officer uses unreasonable or excessive force.  If you have been charged with resisting arrest it is important to retain a Massachusetts criminal defense attorney who knows the system and can help defend your rights.

Assault and technology: You won’t get away with it

Imagine, while on the highway stuck in traffic, you witness a collision between an SUV and a motorcycle. Before you know it, you see the SUV surrounded by other bikers who begin to attack and assault the SUV driver. You whip out your cell phone and make a video of the scene. What should you do now?

Earlier this month, fellow drivers in New York found themselves in a similar situation.  Thanks to technology, a few concerned citizens were able to record an assault that took place on Manhattan’s West Side Highway. The amateur video footage, which went viral, caught bikers swarming around an SUV, then the driver plowing over one of the motorcyclist to flee the scene, and ended with the driver pulled out of his vehicle and brutally beaten in front of his family. Authorities have used this footage to bring charges against the driver and six other motorcyclists.

The facts so far demonstrate that the video footage collected is instrumental in figuring out the sequence of events. So far, the police are using the video footage as a starting point to determine what charges to bring against each party.

As the events have unfolded, more citizens have come forward with footage they recorded on their cell phones and iPads. As a result, some initial charges have been dropped and others sustained against the bikers and the driver. The video coverage also promises to play a key role at trial. The prosecutors are very likely to use the footage to demonstrate the physical force and brutality exercised in this in assault.

The extra video footage off of peoples’ cell phones and iPads provides missing links to the puzzle. Thanks to the extra clues,  authorities are learning and identifying new facts about this case everyday. A few simple steps by average citizens have helped resolve this case in a matter of weeks.

How to identify an assault:

Many individuals would not be able to identify or recognize if a crime is taking place, especially if it is an assault.  An assault occurs when someone threatens bodily harm to another in a convincing manner. In this case, the bikers and driver were charged with assault and gang assault. Under the model penal code, for an act to be considered an assault and to rise to the level of an actionable offense, two elements must be present:

  1. The act was intended to cause apprehension of harmful or offensive contact, and
  2. The act indeed caused apprehension in the victim that harmful or offensive contact would occur.

The punishment for committing an assault upon another person varies state to state. Under Massachusetts law, (Mass. Gen. Laws. ch. 265 sec.) 13A(a), anyone who commits an assault can be punished by imprisonment for up to 21 years or by a fine of not more than $1000 dollars.

If you see something, say something

If you ever find yourself witnessing an assault, you should immediately report it to the authorities by calling 911. If you do not have signals or are unable to make a call at the time, do not get involved if you feel you may be at risk of being harmed. Also, if you used any technology while witnessing a crime and have any evidence that may be helpful, you should immediately turn it over to the authorities instead holding onto evidence. The key here is not to put yourself in danger and possibly, escalate the situation further.   If you end up in the unfortunate position of witnessing a crime and can provide any clues to resolve the situation, you have done your part as a concerned citizen.

The Role of Technology

This high profile biker assault is not the first case where video footage plays an important role in determining and sequencing events of a crime. The Boston Marathon Suspects were identified were identified through private security camera footage from storefronts, and photos and recordings taken by innocent bystanders. The FBI was able to identify the suspects only after 3 days because of the overwhelming about of recordings and photographs they had received.

Thanks to easy access to smart phones, iPads, and digital cameras, it is easier now more than ever to capture images and clues to a crime electronically. If you ever come across such information, it is imperative that you hand this information over to the police. Every bit helps when you are trying to piece together a puzzle.

Domestic Assault and Battery in Massachusetts

You are sitting in the house and arguing with your wife or girlfriend.  Your girlfriend wants you out of the house and decides to call the police on you.  Your girlfriend tells the police that you touched her and before you know it you are arrested and brought to the police station.  The police are very cautious with domestic assault and battery cases.  It doesn’t matter if there are no bruises, cuts, or even if the alleged victim requires medical attention.  It doesn’t matter if the victim is the only person saying that you hit her and there are no other witnesses there.  In fact, the police probably won’t even go talk to other people to see if anyone saw the incident.  It doesn’t matter that the house you were supposedly fighting in looks pristine and nothing looks thrown around.  And it doesn’t matter that you were not found inside the apartment and the police found you later on.  Even with no injuries, witnesses, and the case being completely being her word against yours, it is highly likely you will be arrested for a domestic assault and battery charge. 

The police are very cautious with domestic assault and batteries for many reasons.  One of the reasons is that the police rather be cautious is to ensure the safety of the alleged victim.  The police are very concerned that they will be accused of not doing their job.  If the police don’t arrest a suspect and later the suspect kills the victim, then the police will have a lot of explaining to do.  The last thing the police want is to explain to the press why they didn’t arrest an individual who ended up killing a victim.  Unfortunately, the police can’t tell what suspects are more likely to kill a victim, therefore, they tend to arrest all suspects in domestic assaults and battery to prevent anyone from saying that they aren’t doing their jobs. It makes sense that police are cautious and it makes sense that the police want to prevent any major violence.  Unfortunately, not all victims are telling the truth and many innocent people get arrested for domestic assault and batteries. 

To complicate matters many if not all the district attorneys’ offices have domestic violence units.  These domestic violence units tend to treat each case very seriously.  The district attorneys in Massachusetts want to be strong advocates against domestic violence. This is a noble cause and it makes complete sense to be against domestic violence. If you are ever arrested for a domestic assault and battery you may find it very difficult to dismiss your case.  Even in cases where the victim tells the prosecutor that they want the case dismissed. Once criminal charges are filed, the victim doesn’t have the right to dismiss the case.  The power to deal with a criminal case lies with the prosecutor and ultimately a judge.  Prosecutors understand that most domestic violence victims tend to harbor their pain and protect their attackers. Therefore, in many cases prosecutors will continue to prosecute domestic cases even where the victim wants the case dismissed. 

The problem with domestic violence cases is where a victim is lies about the attack.  Unfortunately, there are many alleged victims that abuse the criminal process to gain an advantage against the accused in some way.  It is very difficult for prosecutors to decipher victims that change their story as a result of battered woman syndrome, or an alleged victim has lied from the beginning and is abusing the system.  As a result, if you are charged with a domestic assault and battery in Massachusetts you are in a difficult situation.

Crime in Boston Drops During Winter Months

Finally, a silver lining to this year’s extraordinarily frigid Boston winter: a double-digit crime drop in the first three months of 2013. According to the Boston Globe, Police Commissioner Edward F. Davis announced a 15% drop in crime generally from January to March 2013 when compared to the activity the year before. While gun-related crimes did see a spike during this same time, the statistics are being heralded a victory for the city, one Davis credits to a surge in community crime watch groups and criminals just not feeling like getting muddled up in all that snow.

“We’ve certainly had a lot of snow this year, and that keeps people inside,” Davis announced, which, despite skeptical first instincts, makes plenty of sense. The sorts of crimes reported on the decline range from burglary and larceny to vehicle theft and rape—crimes that involve being outside, running, or carrying large burdens. Apparently car thieves didn’t want to bother risking the time it takes to dig a car out of a Boston-sized storm this year. The Globe breaks down the crime drop as follows:

Between Jan. 1 and March 18 this year, there were seven killings, compared with eight in the same period in 2012, according to police department statistics. Rapes and attempted rapes dropped by 25 percent; robbery by 7 percent; aggravated assaults by 16 percent; burglary by 8 percent; larceny by 17 percent; and vehicle theft by 14 percent.

The weather explanation also holds when given the fact that non-fatal shootings are up 20% and firearm-related arrests saw an 11% increase, according to the Globe, assuming the same people who have given up on stealing cars during the winter are attempting to find alternate sources of income. With this in mind, the police department announced plans for a heightened anti-crime initiative as the city begins to thaw, citing the coming summer months as traditionally the most problematic.

Lies from Punxsutawney Phil aside, Boston residents have plenty to applaud themselves for on the tail of this new study. Davis explained the increased gun violence in the Globe as “retaliatory action,” a symptom itself of the greater effort both police and residents in neighborhood watch groups are putting into fighting criminals. More than one hundreds crime watch groups were formed in 2012, almost doubling the amount in the city, and Mayor Thomas Menino noted that police officers were beginning to specialize further in neighborhoods, actively becoming part of the people they police rather than making casual and distant rounds about town. That knowledge is reflected in the drop in crime, he asserted.

Despite the positive news for the city, the drop in crime has sparked criticism from civil rights groups who note the incongruity between said drop and the exponential increase in construction of prisons and inmate population. The research group MassINC released a report last month condemning the tripling of inmate population since 1980. The group also announced their research found Massachusetts to have a higher recidivism rate than several other states, a rate that costs the state $150 million more than taxpayers would otherwise have to contribute to keeping repeat criminals behind bars. That the criticism of the police force is now about having more prisons than criminals to fill them is undeniably a step forward, however, even if in part thank to a season of solid Nor’easters.

Restraining Orders in Massachusetts

Restraining orders are orders by the court that are put in place to prevent someone from bothering or contacting a given individual.  The limitations put on the person who is being restrained, which can be restrained, and for how long varies widely by state.  In Massachusetts the law provides two types of restraining orders for different relationships and histories.  The primary type of order is the Abuse Protection Order, and is to protect people who have familial or close personal ties to the threatening person.  The second is the Harassment Protection Order, and is for people with limited or no ties to the threatening person.

Abuse Protection Law, the Basics

The first, more common type of order to protect the safety of an individual is a restraining order or protective order under the Abuse Protection Law.  It is put in place to prevent a family member or former romantic partner from contacting or threatening a person.   Protective orders in Massachusetts are found under the legal code, in Section 209A.  See Abuse Prevention Law, also See Mass Legal Help

The Standard and General Rules for an Abuse Protection Order

The legal standard of action that the law protects against is where “one person is being abused by another.”   Abuse is said to include actual physical violence, threats of physical violence, and forced or coerced sexual activity.  Massachusetts Governor’s Website

When a restraining order is issued, the details of how it may be enforced are laid out in the order, both for the safety of the threatened person and so the defendant can know how to comply with the order.  Restraining orders often include details about how far from the victim the threatening person must be.  Some have contained language about whether the threatening person may exit his or her vehicle near the victim.  They may be for a specific length of time or they may have a renewal date.

In the process, an individual can have an emergency order brought in court immediately.  The defendant is served with the order and it goes into effect on a short term basis. The individual comes before the court and requests the order.  A judge then reviews the order and the person named as threatening in the order, or the defendant, can defend against the order in a hearing within about 10 days of the emergency filing.  Orders Well Explained on Amherst Government Website

There is a related court order that provides similar protection as that under Section 209A, but it is issued by the family court system.  It is called a Domestic Relations Protective Order.  As it falls under the same laws it has a similar effect, but it is issued as part of the divorce, child custody and child support processes in family court. 

Protected Family Members Can Include Pets

The Abuse Prevention Law was primarily instituted to provide more protection for people suffering from domestic violence and related crimes.  It is a civil action that provides protection in civil court.

Since a tie between animal abuse and domestic abuse is often found, pets are protected under Massachusetts’ domestic abuse law.  At least one pet, a dog, was granted protection against its former owner in 2012.  CBS News Story, 2012

Harassment Protection Orders

In addition to protective orders, Massachusetts law also provides for a court order to prevent one person from harassing another in the absence of a familial or romantic history.  These orders are called Harassment Prevention Orders in Section 258E of the legal code. Harassment prevention orders are tailored to the specific circumstances.  Since the law was instituted in 2010, it has been used to protect many stalking victims and others who were not protected by the original Abuse Protection Order. 

The laws surrounding Abuse Protection Orders limits them to protection from people with a familial or former intimate relationship.  As a result, people who were harassed, threatened or hurt by people they did not have a personal history with were not protected.   To reduce misuse of the orders, there is a requirement that orders without a sexual component have at least three separate instances that would be considered threatening.  See Harassment Prevention Orders  

Penalties under the Laws

While both types of orders are issued by civil courts, the penalties for violating the orders may pull a defendant into criminal court.  Defendants who willfully violate an order can be arrested, jailed, and subject to significant fines. See Mass Legal Help Website

Alleged Misuse of Protective Orders

When it comes to restraining orders, some people think that they do not do enough and they are far too difficult to get, while others think they are too easy to get and too hard to fight against.  As far back as 1999 there were discussions about how common it was for restraining orders to become part of domestic financial disputes.  See Salon Article, 1999

When the orders have been misused, at least some were brought in in neighborhood conflicts.  While some of the protective orders filed were brought for good reason, many have been thrown out by the courts as frivolous and not about what the courts intended.   Some neighbors have requested orders to “protect themselves” from other neighbors who are legally walking around the neighborhood minding their own business.  There is a growing concern that the process is overburdening the courts to no one’s benefit with filings that should not be seriously considered.  See Boston.com Article, 2012

Assault and Battery Laws in Massachusetts

Assault and battery may be some of the most confusing criminal terms in Massachusetts. You oftentimes hear someone refer to “assault” when they really mean “assault and battery” and sometimes you’ll hear “battery” when “assault” is more appropriate. However, there are profound differences between the two criminal charges.


Generally, assault in Massachusetts is defined as:

  1. Attempted Battery. This requires that the defendant intended to commit the battery on the victim, actually took some step in accomplishing the battery, and came reasonably close to accomplishing the battery. 
  2. Threatened Battery. This requires that the defendant intended to put the victim in fear of an imminent battery and took some conduct to make the victim feel threatened. So unlike the first form of assault, the victim must be aware of the threat of harm.

For example, a defendant may be convicted of assault if he throws a punch at someone, but fails to land the punch. There is no actual battery (the defendant missed), but there is an attempted battery (the throwing of the punch).

In addition, a defendant could even be convicted of assault if he merely makes threats of punching the victim and shows his fists without actually throwing a punch. This may be considered a threat of battery.

Neither form of assault requires an actual physical touching of the other person. And this is the primary difference between this crime and the crime of assault and battery explained below.

Intentional Assault and Battery

Assault and battery in Massachusetts is defined in the same section of the law as assault discussed above. (M.G.L. c. 265, § 13A). Generally, the crime consists of three elements:

  1. Touching of the Victim. Actual physical contact must be made.
  2. Intent To Touch. This requires that the defendant deliberately intended the act. In other words, the touching could not have been an accident or an act of negligence.
  3. Touch Was Likely To Cause Bodily Harm Or Was Done Without Consent. It does not need to be shown that the defendant intended to cause injury.

So if the defendant intentionally threw a punch at another person and actually landed the blow, the defendant could now face assault and battery charges.

Reckless Assault and Battery

The second form of assault and battery is reckless assault and battery. This crime involves reckless acts that result in bodily injury. This crime only involves two elements:

  1. Intentional Act That Caused Bodily Injury. While the defendant does not need intent to touch the victim, the defendant does need the intent to commit a reckless act that actually causes injury. Keep mind that injuries do not include any minor inconveniences to the victim. Instead, the injury must be serious enough to interfere with the victim’s health or comfort.
  2. The Act Was Reckless. Prosecutors must show that the defendant’s actions were  likely to cause harm to others.

For example, assume that the defendant does not throw a punch at another, but instead wildly swings his fists in a crowded bar. If the defendant comes into contact with another person and breaks that person’s nose, the defendant could be charged with reckless assault and battery.

Massachusetts Criminal Penalties

The penalties for “assault” and “assault and battery” are the same. (M.G.L. c. 265, § 13A). Generally, a defendant faces two-and-a-half years in prison. But with extenuating circumstances like an assault and battery that causes serious injury or an assault against a pregnant women, the defendant can face more serious penalties.

Contact a Lawyer

Massachusetts assault and battery are serious offenses. You should know that even if you don’t physically touch someone else, you could face jail time if you are convicted of assault. That is why if you are charged with one of these crimes, it is important to work with a Massachusetts criminal defense attorney.